35:0501(59)AR - - NTEU and HHS, Family Support Administration - - 1990 FLRAdec AR - - v35 p501



[ v35 p501 ]
35:0501(59)AR
The decision of the Authority follows:


35 FLRA No. 59

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

FAMILY SUPPORT ADMINISTRATION

(Agency)

0-AR-1627

DECISION

April 10, 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 Stanley J. Siegel filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency did not select the grievant for promotion to a GS-13 position because of the grievant's activities as a Union officer. The Arbitrator ordered the grievant promoted to the position with backpay.

For the following reasons, we conclude that the Agency's exceptions fail to show that the Arbitrator's award is contrary to law or regulation or otherwise deficient. Therefore, the Agency's exceptions are denied.

II. Background and Arbitrator's Award

The grievant is a GS-501-12 grants management specialist in the Formula and Entitlements Grants Branch, Division of Grants Management. He is also the president of Chapter 250 of the Union. In July 1987, the grievant applied for one of two GS-1101-13 grants management specialist positions which were advertised in the Discretionary Grants Branch of the Division of Grants Management. During the same month, he applied for and was granted annual leave for August 3-17, 1987.

The candidates for the advertised positions were rated in accordance with the Agency's merit promotion plan. The selecting official received a certificate listing the two eligible GS-13 candidates and another certificate listing the 15 best-qualified GS-12 candidates. The grievant's name was on the best-qualified GS-12 list.

The selecting official scheduled interviews for August 10, 11, and 12, 1987. She attempted to contact the grievant but was unsuccessful because he was on annual leave. She was also unable to contact another candidate who was on official travel. Because of the need to fill the two advertised positions in order to process 250 grants by the end of the fiscal year, the selecting official was granted permission by the personnel office to proceed without interviewing the absent candidates. She selected a GS-13 candidate from another Department of Health and Human Services agency and a candidate from the list of eligible GS-12 candidates. The selections were approved by the selecting official's supervisors on August 14. Award at 3.

The GS-13 candidate declined the offer. To accomplish the work of that position, the selecting official "enlisted other employe[e]s in the agency to help during the September rush." Award at 3. The GS-12 candidate who was selected remained in the position for approximately 6 months. At the time of the arbitration hearing both positions were vacant.

When the grievant returned from annual leave, he learned that his name was on the list of eligible GS-12 candidates. He was not contacted about an interview. On October 9, 1987, he asked the selecting official's supervisor about the status of the positions. The supervisor informed him "that no selection had been made, and that the jobs were going to be re-posted." Award at 3. On October 14, the selecting official told the grievant that "because he was on leave at the time, she found that she did not have to wait for his return." Id.

The selecting official interviewed the grievant on November 2, 1987. She did not select him for the position which remained unfilled because, "based on answers [the] grievant gave at the November 2 interview, she determined that he was 'unqualified' for the position." Award at 3. The selecting official testified before the Arbitrator that the grievant "confused contracting regulations and policies with those governing discretionary grants." Id. She also stated that the grievant was unqualified "because he had no experience in making discretionary grants." Id.

The grievant filed a grievance which alleged that he was denied a promotion to GS-13 because of his Union activities. The grievance was submitted to arbitration, where the Arbitrator framed the issue as follows:

Was the agency's decision not to select grievant for the promotion motivated by his participation in a protected activity and, if so, would the agency have made the same decision absent the protected conduct?

Award at 1.

The Arbitrator stated that both parties agreed that "in cases of alleged anti-union bias, the grievant has the burden of making a prima facie showing that he was engaged in a protected activity and that this conduct was a motivating factor in the agency's action against him. The burden then shifts to the agency to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected activity." Award at 6. The Arbitrator also noted that the parties agreed that the grievant "was engaged in protected activity." Id.

The Arbitrator found that the Union did not produce direct evidence that Agency selecting officials were influenced by the grievant's Union activity. He found that the Union relied on circumstantial evidence consisting of: (1) testimony by a former coworker of the grievant that the selecting official's supervisor had made anti-union remarks; (2) testimony by the grievant concerning statements made about him by management; and (3) the actions of the selecting official in failing to interview the grievant in a timely manner and in finding him unqualified for the position. Award at 7.

The Arbitrator stated that the action of the selecting official in avoiding an interview with the grievant after he returned from leave was "most persuasive." Award at 7. He noted that the selecting official had based her failure to interview the grievant on the press of work arising from the 250 cases which had to be completed by the end of September. He stated that "[d]espite her protestations concerning her need for 'experts' who would need no training in handling discretionary grants, she ended up by scouring the agency for--and accepting--persons regardless of their previous experience in discretionary grants." Id. The Arbitrator found that the selecting official's actions "did not amount to the appropriate consideration called for in Requirement 2 of [Office of Personnel Management] Merit Promotion Requirements set out in the Federal Personnel Manual" and that the actions "also evidence an effort on the agency's part to avoid interviewing and thus promoting grievant." Id. at 8.

The Arbitrator discussed the selecting official's contention that she did not select the grievant because he was unqualified and because in the interview he cited regulations which pertained to contracts rather than to discretionary grants. The Arbitrator compared the terms of the vacancy announcement for the GS-13 position with the grievant's application and found that "grievant's Form 171 proves that his experience for at least the last ten years in government has included exactly those skills." Award at 9. The Arbitrator also noted that "the merit promotion panel found that grievant was among the best qualified based on its application of the Department's merit promotion criteria." Id. He stated that the selecting official "did not testify that grievant was less qualified, she concluded instead that he was unqualified, a significant difference. Given the merit promotion panel action and grievant's background in accounting, contract and grant management work, I find [the selecting official's] conclusion untenable." Id. at 10 (emphasis in original).

Additionally, the Arbitrator found that two of the selecting official's supervisors had expressed "their opinions that persons actively engaged in union matters in the workplace would not be giving their full attention to workplace matters" and he stated that "this attitude penalizes union activists, an action that is expressly forbidden by 5 U.S.C. 7116(a)." Award at 10. On this point, he found that "two senior officials of the agency, both of whom could have vetoed grievant's selection and both of whom were the selection officer's supervisors, were biased against grievant because of his union activities." Id. at 11.

The Arbitrator concluded:

I conclude as a matter of law that grievant has made his prima facie case of showing that he was involved in a protected activity, namely union activity, and that such activity was the motivating factor in his not having been selected for promotion into one of the two existing GS-13 vacancies. Further, I conclude that the agency has not proven by a preponderance of the evidence that it would have found grievant unqualified for the vacant GS-1101-13 position absent his protected activity.

Award at 11. The Arbitrator directed the Agency "to promote [the grievant] retroactively to GS-1101-13 in its Discretionary Grants and Contract Review Branch as of the beginning of the first pay period following August 17, 1987, and to pay him all back pay and benefits accruing since that time." Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient because it violates management's right to select employees under section 7106(a)(2)(C) of the Statute. The Agency maintains that the Arbitrator failed to find the required causal connection between the Agency's improper action and the failure of the grievant to be selected for a GS-13 position. The Agency also contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator failed to find that but for an unjustified or unwarranted personnel action the grievant would not have suffered a withdrawal or reduction in pay.

The Agency further contends that the Arbitrator misapplied the test for resolving "dual motive" cases which the Authority adopted in Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981) (IRS). The Agency denies that the grievant failed to receive proper consideration for promotion. The Agency asserts that even if the grievant did not receive proper consideration, the Arbitrator failed to find that: (1) the grievant would have been selected before either of the candidates who were chosen; or (2) the Agency would have filled the positions which were vacant and that the grievant would have been chosen to fill one of those positions. Exceptions at 23-24.

The Agency contends that the Arbitrator exceeded his authority by requiring the grievant to be promoted retroactively to the first pay period following August 17, 1987. The Agency maintains that under the parties' collective bargaining agreement, a grievance relating to a continuing violation "can only relate back to the alleged violations occurring 15 days prior to the filing of the grievance." Exceptions at 11. The Agency contends that even if the grievant's rights were violated, the only violation was a failure to give him proper consideration, for which the remedy should be priority consideration for a future position.

The Agency maintains that the award is contrary to statutory merit system principles because it orders the Agency "to do what it otherwise would be prohibited from doing: promoting Grievant over the other 13 remaining candidates without consideration of their relative qualifications for the GS-13 journeyman-level position." Exceptions at 17. The Agency also contends that the award is contrary to the Agency's merit promotion plan, which requires "merit and qualifications to be the sole criteria for selections in promotions." Id. at 20. The Agency asserts that the award requires it to fill a position "with someone without experience in the area." Id.

B. Union's Opposition

The Union denies that the Arbitrator exceeded his authority by ordering that the grievant be promoted to a position rather than ordering that he be given priority consideration. The Union contends that the grievance requested promotion as a remedy and that the grievance was timely filed within 15 days of the grievant's becoming aware that he did not receive proper consideration for promotion. The Union contends that the continuing violation "began no later than August 17, when the Agency failed to interview or select the Grievant for the position because of his union activity." Opposition at 7. The Union asserts that the Agency's exception constitutes disagreement with the Arbitrator's finding as to the procedural arbitrability of the grievance.

The Union maintains that the Arbitrator applied the proper legal standard when he concluded that: (1) there was a prima facie showing that the grievant was not selected because of his Union activities; and (2) the Agency failed to show that it would not have selected the grievant in the absence of the protected activity. The Union contends that the Agency had the opportunity to prove that the grievant would not have been promoted "but the Arbitrator rejected the only explanation offered by the Agency as untenable and illogical." Opposition at 9. The Union asserts that the Arbitrator "properly concluded as a matter of law that the Agency failed to meet its burden of showing that the Grievant would not have been selected even in the absence of his union activities." Id.

The Union states that the Arbitrator's award complies with merit principles, OPM requirements, and the Agency's merit promotion plan because "the Arbitrator did consider the relative qualifications of all the candidates." Id. The Union asserts that the Agency is merely disagreeing with the Arbitrator's factual finding that the grievant was qualified for the position. The Union also denies that the award is contrary to the Back Pay Act and contends that the Arbitrator "clearly indicated that the Grievant would have been promoted 'but for' his union activities." Id. at 11.

IV. Analysis and Conclusions

A. The Arbitrator Properly Applied the Authority's Standard For Cases Involving Alleged Discrimination

In Letterkenny Army Depot, 35 FLRA No. 15 (1990), the Authority discussed the analytical framework to be applied in determining whether an agency improperly discriminated against employees because of their union activities. The Authority stated that "[i]n all cases of alleged discrimination, whether 'pretext' or 'mixed motive,' the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment." Id., slip op. at 6.

In Letterkenny, the Authority held that an agency may seek to rebut a prima facie showing that it has improperly discriminated against an employee by establishing by a preponderance of the evidence that there was a legitimate justification for its action and the same action would have been taken even in the absence of protected activity. Id. at 11. In support of that proposition, the Authority cited IRS, 6 FLRA at 99, which referenced the approach taken by the Supreme Court in Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274 (1977).

We conclude that the Arbitrator correctly set forth and applied the Authority's analytical framework for determining whether the Agency's failure to promote the grievant was improper. The Arbitrator found that the grievant was engaged in protected activity on behalf of the Union and that the protected activity was a motivating factor in his not being properly considered and selected for the position. See Award at 7. On that basis, the Arbitrator ruled that the Union established a prima facie case that the grievant was discriminated against because of his union activity. The Arbitrator heard testimony from the Agency in which the Agency attempted to rebut the prima facie case of discrimination by showing that it would not have selected the grievant in any event. However, the Arbitrator was not persuaded by the Agency's testimony and concluded that the Agency failed to establish by a preponderance of the evidence that the grievant would not have been selected in the absence of the protected activity. The Arbitrator found that the grievant's record of work experience demonstrated that he possessed "exactly those skills" listed in the vacancy announcement. Id. at 9.

We note the Agency's contention that the Arbitrator stated that the grievant would not have been found to be "unqualified" and that that finding does not equate to a finding that the grievant would have been selected. Exceptions at 24 n.18. We disagree. The issue as stated by the Arbitrator was whether the Agency's decision not to select the grievant was motivated by his protected activity and, if so, whether the Agency would have made the same decision absent the protected conduct. See id. at 1. The Arbitrator's use of the term "unqualified" in the award relates to the Arbitrator's rejection of the selecting official's statement that she considered the grievant to be unqualified for the position because his experience was in contracts and formula grants instead of discretionary grants. See id. at 9. In the entire context of the case as described in the Arbitrator's award, the Arbitrator found that the grievant was discriminated against because of his protected activity and that the Agency did not establish by a preponderance of the evidence that the grievant would not have been selected in the absence of protected activity. We conclude, therefore, that the Agency has failed to establish that the Arbitrator misapplied the Authority's analytical framework for determining whether the Agency improperly discriminated against the grievant on account of his protected Union activity.

B. The Arbitrator's Award Is Not Contrary To Section 7106(a)(2)(C) of the Statute

Section 7106(a)(2)(C) provides that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source. Management's right to make selections for promotion can be abridged by an award of an arbitrator only when that arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. Association of Civilian Technicians and Pennsylvania National Guard, 30 FLRA 779, 781 (1987). In order to require an agency to select a particular employee for a promotion, the arbitrator must reconstruct what the responsible selecting official would have done if the unwarranted agency action had not occurred and must find that the selecting official would have selected the grievant but for the unwarranted actions. Id.

The Agency contends that the Arbitrator failed to find a direct connection between an improper action by the Agency and the failure of the grievant to be promoted. We disagree and find that the Arbitrator did establish such a connection. The Arbitrator found that the Agency's actions amounted to failure to give the grievant "appropriate consideration" as required by the Federal Personnel Manual. Award at 8. He also considered the reasons given by the selecting official for not selecting the grievant and found that the selecting official erroneously considered the grievant to be unqualified for the position. The Arbitrator concluded "that the agency has not proven by a preponderance of the evidence that it would have found grievant unqualified for the vacant GS-1101-13 position absent his protected activity." Award at 11.

Thus, the Arbitrator reconstructed the promotion action to determine that the grievant would have been selected if he had been interviewed in a timely manner. For that reason, we conclude that the Arbitrator established a direct causal connection between the Agency's discrimination against the grievant and his nonselection. Therefore, the Arbitrator established the required condition for ordering the grievant's retroactive selection with backpay to the position. See American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988) (arbitrator properly ordered employee selected for position based on finding that but for unwarranted failure to notify her of right to priority consideration she would have been selected); compare Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562 (1987) (setting aside arbitrator's award that grievant be promoted with backpay because of discrimination on account of national origin; arbitrator did not establish that grievant would have been selected for the next vacancy if agency had not acted improperly and, therefore, arbitrator failed to make the direct connection between agency's improper action and grievant's failure to be promoted). Consequently, the Agency's exception fails to establish that the award is deficient because it violates management's right to select under section 7106(a)(2)(C).

For the same reasons discussed above, we find that the Agency has failed to establish that the Arbitrator's award is contrary to merit system principles set forth in 5 U.S.C. §§ 2301(b) and 2302(b) and (c), Office of Personnel Management Regulations and the Agency's merit promotion plan. The Arbitrator found that the grievant, who was placed on the highly qualified list of applicants, was qualified on the basis of experience for the position and that he would have been selected had it not been for his union activities. The Agency's exceptions in this regard constitute nothing more than disagreement with the Arbitrator's findings and conclusions that the grievant would have been selected and do not provide a basis for finding the award deficient. See, for example, Commonwealth of Pennsylvania, Department of Military Affairs and Pennsylvania State Council, Association of Civilian Technicians, 34 FLRA 681, 686 (1990).

C. The Award Is Not Contrary To the Back Pay Act

We also conclude that the Arbitrator's award of pay and benefits at the GS-13 level retroactive to the beginning of the first pay period following August 17, 1987, is not 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. 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).

As discussed previously, the Arbitrator found that the grievant was discriminated against because of his protected Union activities and ruled that the Agency failed to show that the grievant would not have been selected in the absence of those activities. He also found that there was a direct causal connection between the Agency's improper discrimination and the grievant's nonselection. We have already determined that the Arbitrator's order to promote the grievant to the position with backpay does not violate section 7106(a) of the Statute. We conclude that the Arbitrator's finding of such a causal connection between the improper Agency action and the grievant's failure to be promoted constitutes the required finding under the Back Pay Act that the grievant was the victim of an unwarranted or unjustified personnel action but for which he would not have suffered a loss or reduction in pay. See American Federation of Government Employees, Local 1698 and Department of the Navy, Aviation Supply Office, 34 FLRA 939, 944-45 (1990); Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 25 FLRA 167, 169 (1987) (same finding that must be made by an arbitrator under the Back Pay Act in order to authorize an award of a retroactive promotion must also be made by an arbitrator in order to award a prospective promotion consistent with section 7106(a)(2)(C) of the Statute). Consequently, the Agency's exception fails to show that the award is contrary to the Back Pay Act.

D. The Arbitrator Did Not Exceed His Authority

The Agency contends that the Arbitrator exceeded his authority by granting the grievant a promotion retroactive to August 17, 1987, because, under the collective bargaining agreement, grievances must be filed within 15 days of the alleged incident. The Agency maintains that the grievance is over the alleged continuing failure to give the grievant proper consideration and consequently the Arbitrator's jurisdiction extended only to October 12, 1987--15 days prior to the filing of the grievance. The Agency also contends that in the event the alleged discrimination had been proven, the maximum relief available would be priority consideration for a future vacancy.

We disagree. The issue framed by the Arbitrator in the absence of a stipulation by the parties was whether the grievant was not selected because of his union activities. The Arbitrator directly responded to that issue in his award. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 34 FLRA 342 (1990) (in the absence of a stipulated issue, the arbitrator was free to formulate the issue and to extend his award to matters that necessarily arise from the formulation). Therefore, the Agency's contention that the Arbitrator exceeded his authority by addressing an issue not before him provides no basis for finding the award deficient. Further, in view of the Arbitrator's finding that the grievant was discriminated against bec