34:0939(156)AR - - AFGE Local 1698 and Navy, Aviation Supply Office - - 1990 FLRAdec AR - - v34 p939



[ v34 p939 ]
34:0939(156)AR
The decision of the Authority follows:


34 FLRA No. 156

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1698

and

DEPARTMENT OF THE NAVY

AVIATION SUPPLY OFFICE

0-AR-1625

DECISION

February 23, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Arthur T. Van Wart. The Arbitrator found that a grievance concerning the grievant's nonselection for promotion to either of two vacancies was grievable and arbitrable. The Arbitrator found that the appointment and deliberations of a Selection Advisory Panel convened to identify the specific candidates to recommend to the Selection Official for the two vacancies violated law, rule and regulation. The Arbitrator concluded that the grievant was denied a promotion to which he was entitled and ordered that he "be made whole monetarily" for the period of time he was denied promotion until the date of his subsequent promotion to another position. Award at 12.

The Department of the Navy, Aviation Supply Office (the Agency) filed exceptions to the award 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 American Federation of Government Employees, Local 1698 (the Union) did not file an opposition to the exceptions.

For the reasons discussed below, we conclude that the Agency has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration claiming that the grievant was not given proper consideration for promotion to either of two vacant positions for which he applied and for which he was ranked first on the respective promotion lists. The grievance contended that use of a Selection Advisory Panel violated the parties' collective bargaining agreement. The grievance also alleged that the failure to select the grievant violated merit systems principles because the chairman of the Selection Advisory Panel, the grievant's supervisor, unduly and improperly influenced fellow panel members in identifying and recommending other candidates for the vacancies.

The Arbitrator framed the issues for resolution as follows:

1) Is the question of Grievant['s] . . . non-selection as a candidate for promotion to the two posted vacancies . . . non-grievable or non-arbitrable?

2) If found in the affirmative, were the factors used by the Selection Advisory Panel in violation of any statute, government instruction, rules and regulations and/or the parties [sic] Agreement?

3) If so, what is the appropriate remedy?

Award at 2.

The Arbitrator found that the appointment of a Selection Advisory Panel was inconsistent with the requirements of the parties' agreement and with an applicable Agency regulation. He also found that the panel's deliberations were improper because neither the candidates nor their respective supervisors were interviewed, as was required by an Agency instruction. Moreover, he found that the Panel's deliberations were unduly influenced by its chairman, who "went out of his way to assure that any advantages that Grievant's favorable position as No. 1 [in the ranking of candidates] gave him, were lowered." Award at 10. For example, the Arbitrator noted that, in conducting the Panel's deliberations, the chairman of the Panel "was able to interject personal feelings about the Grievant's alleged attitude and to persuade the other [P]anel members that the Grievant should not be recommended for selection for either position." Id. The Arbitrator also noted that "despite the accolades by others as to the Grievant's known capabilities for excellent work performance [the Panel's chairman] did not give the Grievant 'full and fair consideration' as a candidate." Id.

The Arbitrator stated that the testimony of the Selection Official "was not supportive" of the grievant's nonselection. Id. The Arbitrator described the Selection Official's testimony as "an haphazardous [sic] endeavor to support [the Panel chairman's] opinions or actions." Id. He also noted that the Selection Official failed to furnish documentation supporting her choices, as required by the applicable Agency Joint Instructions.

The Arbitrator acknowledged "that merely not picking the candidate ranked No. 1 is not a grievable issue." Id. at 11. However, the Arbitrator noted that a grievance based on nonselection for promotion is appropriate where clear violations of merit system principles are identified and alleged. The Arbitrator found that "the overall unfair and uneven handed treatment of the Grievant by [the Panel chairman and the Selection Official] represent non-merit factor intrusion into the promotion process[.]" Id. The Arbitrator concluded that the grievance was grievable and arbitrable, stating that "the consideration given Grievant's candidacy for promotion was a clear violation of Merit Systems Principles." Id.

The Arbitrator found that "there was a causal connection between an improper [A]gency action and the failure of Grievant to be promoted." Id. Accordingly, as his award, the Arbitrator stated that "Grievant . . . is to be made monetarily whole for the period of time during which he was denied a promotion until [he was] promoted, which period of time is estimated to be thirteen months." Id. at 12.

III. Exceptions

The Agency contends that the award violates management's right to select employees to fill positions under section 7106(a)(2)(C) of the Statute. The Agency asserts that the Arbitrator failed to find that "but for" the improper action on its part, the grievant would have been selected. Consequently, in the Agency's view, the Arbitrator violated management's right to select by erroneously substituting his judgment for that of the Agency.

The Agency further argues that the award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. º 5596 (the Act). The Agency maintains that the Arbitrator failed to find that: (1) the grievant was affected by an unjustified or unwarranted personnel action, and (2) there was a direct connection between the Agency action and the selection of candidates other than the grievant.

IV. Analysis and Conclusions

A. The Award is not Inconsistent with the Agency's Right to Select under Section 7106(a)(2)(C)

Management's right to select personnel to fill positions encompasses the authority to make the actual substantive determinations in the selection and appointment process and to choose from among a group of properly ranked and certified candidates or from any other appropriate source. See, for example, Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 32 FLRA 997, 1001 (1988). The Arbitrator in this case, however, did not direct the Agency to place the grievant in one of the positions for which the grievant competed unsuccessfully. The award required only that the grievant "be made whole monetarily for the period of time, some thirteen months, that he was denied the promotion until he was subsequently promoted." Award at 11. Accordingly, we find no interference with the Agency's right to make selections for appointments under section 7106(a)(2)(C) of the Statute.

B. The Award does not Violate the Back Pay Act

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. The United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Fort Worth, Texas and American Federation of Government Employees, Council of Prison Locals, Local Union 1298, 32 FLRA 128, 131 (1988). In order properly to have awarded backpay in this case, the Arbitrator must have determined that the grievant would have been selected for promotion to one of the two vacancies but for an unwarranted or unjustified personnel action.

According to the Arbitrator, the Agency conceded that "[t]he failure to notify the Union as to the decision to use a Selection Advisory Panel was error and was an oversight." Award at 7. The Arbitrator found that the Panel was convened in violation of the collective bargaining agreement because the agreement required such notification. In addition, the Arbitrator found no grounds in the negotiated agreement or in applicable regulations for convening the Panel at all. The Arbitrator further found that "the illegally and improperly appointed Selection Advisory [Panel]" did not proceed in a manner consistent with either contractual or regulatory requirements. Award at 8. The Arbitrator concluded that the appointment and deliberations of the Selection Advisory Panel violated the parties' collective bargaining agreement.

Violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. Department of Health and Human Services, Health Care Financing Administration, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 21 FLRA 910, 913 (1986). The Arbitrator found that the Agency violated the collective bargaining agreement and that the grievant was affected by the Agency's violation. The award, therefore, satisfies the first part of the test in determining eligibility for backpay under the Act.

The second part of the test requires a finding that the unjustified or unwarranted personnel action directly caused a withdrawal or reduction of the grievant's pay, allowances or differentials. The Arbitrator found that the grievant's failure to be promoted was attributable to the Agency's violations of the parties' collective bargaining agreement. Award at 11. There is no question that the failure to be promoted constituted a withdrawal or reduction in the grievant's pay, allowances, or differentials. Therefore, the award satisfies the second part of the test for an award of backpay. See Veterans Administration Hospital and American Federation of Government Employees, Lodge 2201, 4 FLRA 419, 424 (1980).

We also find that the Arbitrator's award of backpay satisfies the third part of the test for an award of backpay under the Act. We conclude that the Arbitrator found that, "but for" the Agency's unwarranted or unjustified personnel action in appointing a Selection Advisory Panel, the grievant would have been promoted.

The Arbitrator observed that "something obviously occurred to the opinion" of the Selection Advisory Panel chairman in the period between the time he headed the Rating and Ranking Panel, which ranked the grievant as the best qualified candidate for both vacancies, and the time when he was designated to chair the Selection Advisory Panel. Award at 9. The Arbitrator noted that, after the Selection Advisory Panel was convened, the chairman "went out of his way to assure that any advantages that Grievant's favorable position as No. 1 gave him, were lowered." Id. at 10. The Arbitrator stated that the Panel chairman "improperly and unfairly asserted that the Grievant had an attitude problem because the Grievant failed to show up at a meeting as [the chairman's] representative," and that chairman "offered no proof thereafter to support his assertion." Id. The Arbitrator noted that the chairman made his assertions despite performance appraisals, prepared by the chairman in his supervisory capacity, which rated the grievant "as being 'outstanding' in April and also again in October of 1986. Also, despite the accolades by others as to Grievant's known capabilities for excellent work performance [the chairman] just did not give the Grievant 'full and fair consideration' as a candidate." Id. In addition, the Arbitrator found that the chairman "was able to interject personal feelings about the Grievant's alleged attitude and to persuade the other [P]anel members that the Grievant should not be recommended for selection for either position." Id.

The Arbitrator found that the unwarranted appointment of a Selection Advisory Panel, the improprieties in the Panel's deliberations, and the unconvincing testimony in support of the grievant's nonselection provided by the Selection Official evidenced a purpose on the part of the Agency "to go outside the prescribed system to determine a candidate" for each vacancy. Id. at 11. Consequently, the Arbitrator found that the appointment and deliberations of the Selection Advisory Panel deprived the grievant of a promotion to either of the two positions. The Arbitrator concluded that there was a "causal connection" between the improper Agency actions and the failure of the grievant to be promoted. Id.

In our view, the Arbitrator's finding of a "causal connection" constitutes a finding that, but for the Agency's improper conduct, the grievant would have been promoted. See Michigan Air National Guard, Adjutant General of Michigan, Department of Military Affairs and Michigan State Council of the Association of Civilian Technicians, 30 FLRA 165, 169-70 (award sustained where Authority found that arbitrator's direction that grievant receive backpay lost because of nonselection for assignment in violation of parties' agreement satisfied statutory "but for" test). Consequently, we find that the award satisfies the requirement of the Back Pay Act in finding that the grievant was the victim of a personnel action, "but for" which he would not have s