32:0701(101)AR - - VA Medical and Regional Office Center of Wilmington, DE and Laborers' International Union of North America, Federal Local No. 1154 - - 1988 FLRAdec AR - - v32 p701
[ v32 p701 ]
The decision of the Authority follows:
32 FLRA No. 101
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER OF
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO, FEDERAL
LOCAL NO. 1154
Case No. O-AR-1483
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Richard R. Kasher. The Arbitrator found that the fact that the grievant was "a female contributed, at least in part, to the Agency's decision to pass her over and choose a less experienced, less skilled and less qualified male employee to fill the position the grievant sought." Award at 13. Accordingly, the Arbitrator ordered that "the grievant be installed immediately in a WG-8 Cook position, and to make her whole for any difference in wages that existed between the date of Mr. Campbell's promotion and the wages she would have received had she been awarded the WG-8 Cook position." Id.
The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency asserts that the Arbitrator's award is contrary to law because he directed the promotion of the grievant in violation of management's right under section 7106(a)(2)(C) of the Statute and ordered backpay in violation of 5 U.S.C. § 5596. The Union filed an opposition to the Agency's exceptions.
Because we conclude that the Arbitrator did not find that the grievant would have been selected for the promotion except for the Agency's discriminatory action, we conclude that the award is deficient and must be set aside.
II. Background and Arbitrator's Award
This case arose as the result of a grievance filed by the Laborers' International Union of North America, AFL-CIO, Federal Local No. 1154 (the Union) under Article XXI, Section 4 of the parties' collective bargaining agreement on behalf of Mary L. DuBose (the Grievant). The grievance concerned the Agency's alleged discriminatory action in promoting a male employee to a WG-8 Cook position instead of the grievant, a female. The Arbitrator found that the question before him was whether discrimination based on sex "played a role" in the non-promotion of the grievant to the WG-8 Cook position. Award at 9.
The Arbitrator noted that Article XXIV, Section 3 of the parties' collective bargaining agreement provides that the Union and the Agency "affirm their joint opposition to any discriminatory practices 'in connection with . . . promotions' and that decisions regarding promotion should be made without consideration of 'sex, race, color, age, religion or national origin.'" Award at 7.
The Arbitrator found that since it is unlikely that an employer would admit that "it directly or indirectly made decisions regarding the filling of vacancies based upon discriminatory motivations" and since the Agency made no such admissions, he was required to look to "certain objective criteria" to determine whether there was merit in the instant grievance. Award at 10.
The Arbitrator concluded that the Union presented sufficient evidence, based on the testimony of the grievant and another female employee, to establish "that (1) women with greater experience in the Food Service Department have been passed over for promotions and (2) that they discern a discriminatory motivation on the part of management." Award at 10. The Arbitrator noted that although the evidence was not "overwhelming," the evidence was sufficient "to shift the burden of proof to management to establish that its decision was made without any concern for the fact that the grievant was a female" and that "management has failed to carry that burden." Id.
The Arbitrator found that according to the testimony of the selecting official, the elements used to select the male candidate, Mr. Frank Campbell, instead of the grievant, to fill the WG-8 Cook position were: (1) an interview, (2) work experience, (3) knowledge of diets, (4) cooperation, (5) ability to give guidance, (6) leave record, and (7) safety record. Award at 10.
The Arbitrator found that: (1) there was no objective evidence that Mr. Campbell interviewed better than the grievant; (2) the grievant's work experience was significantly superior to that of Mr. Campbell; (3) on the basis of Clinical Dietician Ms. J. Vanderdecker's testimony, Mr. Campbell had done "a little bit better" on weekly quizzes concerning diets than the grievant; (4) the grievant's performance ratings and awards indicated that she was cooperative on the job and Ms. Vanderdecker's testimony on the grievant's attitude was confined to her enthusiasm for attending the weekly classes; (5) there was no evidence that Mr. Campbell has ever exercised the authority to "give guidance" while the grievant obviously gave guidance to food service helpers while she was temporarily assigned as a WG-8 Cook and her performance ratings indicated that she was able to give guidance adequately to meet the Agency's needs; and (6) the record indicated that the grievant had "very good" leave and safety records over a 20-year period while the Agency presented no evidence regarding Mr. Campbell's leave and safety records and there was no basis to conclude that they were as good as or better than the grievant's records. The Arbitrator further noted that the Agency presented no evidence that Mr. Campbell had experience outside of the Veterans Administration which might have contributed to a finding that grievant's superior experience, superior record and performance awards were outweighed by other objective considerations.
The Arbitrator concluded that based on criteria used to select the WG-8 Cook, the grievant's qualifications were far superior to those of the male candidate. The Arbitrator found that he was "constrained to conclude that factors other than the objective criteria listed by Mrs. Collins were considered in selecting Mr. Campbell in lieu of the grievant." Award at 12. The Arbitrator, therefore, concluded "that the grievant's being a female contributed, at least in part, to the decision to 'pass her over' and choose a less experienced, less skilled and less qualified employee to fill the position that she sought." Id. at 13. Accordingly, he sustained the grievance and directed the Agency to "install" the grievant in the WG-8 Cook position immediately. Id. Further, he found that the grievant was entitled to the difference in wages that she would have earned had she been promoted to the position of WG-8 Cook at the time the position was awarded to Mr. Campbell.
The Agency contends that the award violates management's right to select employees under section 7106(a)(2)(C) of the Statute, and is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator did not expressly find that "but for" the discrimination, the grievant would have been selected for the position.
The Union contends that the award should be upheld because there is a direct connection between the improper action of the Agency and the failure of the grievant to be selected. The Union argues that there was no dispute at the hearing that the promotion decision involved a choice between two applicants, the grievant and the individual selected. The Union contends that the Arbitrator found that there was discrimination on the part of the Agency and that the discrimination was directly connected to the failure of the grievant to be promoted to the WG-8 Cook position. The Union states that the Arbitrator found a direct connection between the discrimination and the failure to promote the grievant by finding that Campbell was improperly selected "in lieu of" the Grievant. Opposition at 6.
The Union argues that the present case involves more than "improper agency action" because it is a case of discrimination based on sex, which is clearly prohibited by 42 U.S.C. § 2000e-15. Id. at 6.
Further, the Union argues that the Arbitrator reconstructed what the Agency would have done had the improper action not occurred. According to the Union, the Arbitrator clearly found that the grievant was better qualified. Further, the Union claims that the Arbitrator also made a finding of discrimination.
Finally, the Union argues that the Arbitrator expressly determined that the Agency's action was unwarranted and that it directly resulted in the failure of the grievant to be promoted when she otherwise would have been promoted. Consequently, the Union contends that the Arbitrator's award of a retroactive promotion and backpay fully complied with Authority precedent.
V. Analysis and Conclusion
The Arbitrator's award directing the Agency to immediately place the grievant in a WG-8 Cook position is contrary to section 7106(a)(2)(C) of the Statute.
With respect to filling positions, management's right to make selections under section 7106(a)(2)(C) includes the right to make the actual selection or appointment. Management's right to make selections under section 7106(a)(2)(C) may be constrained and an agency ordered to select a particular employee for promotion only if an arbitrator finds that the employee was affected by improper agency action that directly resulted in the failure of the employee to be promoted when the employee otherwise would have been. See, for example, Defense Logistics Agency, Department of Defense, Battle Creek, Michigan and American Federation of Government Employees, AFL-CIO, Local 1626, 28 FLRA 578 (1987); American Federation of Government Employees, Local 17, AFL-CIO and Veterans Administration, Central Office, 24 FLRA 424 (1986).
We conclude that the Arbitrator failed to make this necessary finding. Although, the Arbitrator found that the Agency's decision to pass over the grievant and select what he characterized as a less experienced, less skilled and less qualified employee to fill the WG-8 Cook position was motivated "at least in part" by the fact that the grievant was a female, he did not find that the grievant would have been selected for the promotion except for the Agency's discriminatory action. Therefore, the Arbitrator did not make the direct connection necessary to support his award ordering selection of the grievant for the WG-8 Cook position. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562 (1987) (Social Security Administration). Consequently, the portion of the Arbitrator's award directing the Agency to immediately "install" the grievant in a WG-8 Cook position is deficient as contrary to section 7106(a)(2)(C) of the Statute.
We also conclude that the Arbitrator's award of retroactive pay at the WG-8 Cook position level is contrary to the Back Pay Act, 5 U.S.C. § 5596. In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine that (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 21 FLRA 307 (1986).
In this case the Arbitrator based his award of retroactive pay on his finding that the Agency's decision to pass over the grievant and select a less qualified employee was motivated "at least in part," by the fact that the grievant was a female. The Arbitrator did not specifically find that "but for" such discrimination, the grievant would have been selected for promotion to WG-8 Cook. Consequently, we conclude that the award of retroactive pay to the grievant is contrary to the Back Pay Act. See, Social Sec