35:0754(81)AR - - Air Force, Carswell AFB, TX and AFGE Local 1364 - - 1990 FLRAdec AR - - v35 p754



[ v35 p754 ]
35:0754(81)AR
The decision of the Authority follows:


35 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

CARSWELL AIR FORCE BASE, TEXAS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 1364

(Union)

O-AR-1682

DECISION

April 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the Final Award of Arbitrator John A. Bailey. The grievant filed a grievance when he was not selected for a promotion. In an Interim Award and a Supplemental Award, the Arbitrator found that the ranking system used for the selection action was in violation of the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2). In both awards, the Arbitrator ordered that the grievant and the selected employee be reevaluated. In a Final Award, the Arbitrator ordered that the grievant be retroactively promoted with backpay.

The Department of the Air Force (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 on behalf of the Activity. The Union filed an opposition to the exceptions.

We conclude that the award of a retroactive promotion with backpay is contrary to the Back Pay Act. Accordingly, we will strike that portion of the award.

II. Background and the Arbitrator's Awards

In 1987, the grievant, who was the local Union president, was not selected for promotion to the position of aircraft electrician foreman, and he filed a grievance. The grievance was not resolved and was submitted to arbitration.

The Arbitrator issued three awards in this matter: an Interim Award, a Supplemental Award, and a Final Award. In the Interim Award, dated February 26, 1988, the Arbitrator stated the issue to be whether the grievant was not promoted because of discrimination against him based upon his union activities and whether the Activity violated any other law, rule, regulation, or contractual provision in using unfair criteria to evaluate the candidates for promotion.

The Arbitrator determined that eight qualified candidates had been referred to the selecting supervisor for consideration. The referrals had been listed by computer in rank order based on performance appraisals. The selecting supervisor devised a system of certain criteria and points to evaluate the candidates who had been referred to him.

The Arbitrator determined that the ranking system used by the selecting supervisor to evaluate the candidates was not fair. He found that there were errors in the evaluation of the candidates' supervisory experience and that other evaluation criteria were not properly weighted. Stating that fairness is required by the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2), he concluded that the ranking system was not in compliance with law. As his Interim Award, the Arbitrator directed management to "re-do" the point system for evaluating the promotion candidates to provide for "proper weighting and scoring for supervisory experience and proper weighting of other criteria." Interim Award at 12. The Arbitrator further directed management to "re-evaluate" the grievant and the selected employee accordingly. Id. The Arbitrator retained jurisdiction to permit the Union to again challenge the fairness of the point system, "including such matters as the appropriateness and proper weighting of criteria." Id. He deferred a decision as to whether the grievant was not promoted because of discrimination against him based upon his union activities.

After the Arbitrator's Interim Award, the Activity reevaluated the grievant and the selected employee. The Union invoked the Arbitrator's retention of jurisdiction, challenging the Activity's reevaluation. The Arbitrator ruled that the Activity's revised ranking system was still unfair, in violation of merit system principles. He held that the Activity erred by equating the supervisory experience of the grievant and the selected employee and by under-weighting supervisory experience as a ranking criterion. However, he ruled that discrimination against the grievant based upon his union activities had not been proven. Accordingly, in the Supplemental Award, dated July 27, 1988, the Arbitrator again ordered the Activity to reevaluate the grievant and the selected employee under a ranking system adjusted in two respects: (1) supervisory experience shall be accorded a weight of 20 percent; and (2) the grievant shall be credited with 16 times as much supervisory experience as the selected employee. The Arbitrator noted that he had not calculated the ratings under his ranking system and that he did not know which employee would be rated higher. He also noted that if the grievant received the higher rating, the Activity could still decide not to promote him in reliance on its right to select the promotion candidate it prefers from a group of best-qualified candidates. He again retained jurisdiction of the matter.

On August 24, 1988, the grievant, on behalf of the Union, sent a letter to the Arbitrator, stating that the Union had calculated the ratings of the grievant and the selected employee using the adjustments specified in the Supplemental Award and that the grievant received the higher rating. The Union also stated that it had been informed by management that the Activity "was going to do nothing except for a possible appeal."

On August 30, 1988, the Agency filed exceptions to the Arbitrator's Supplemental Award. By letter dated September 6, 1988, the Activity informed the Arbitrator that it would take no further action in this matter pending the outcome of its exceptions and that it would not respond to the Union's August 24 letter.

On October 31, 1988, the Authority dismissed the Agency's exceptions as interlocutory without prejudice to the Agency's ability to refile exceptions after a final award had been rendered by the Arbitrator. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 33 FLRA 757 (1988).

By letter dated December 9, 1988, the Arbitrator requested the Activity to inform him of whether it had complied with the Supplemental Award and whether it desired another hearing or desired to make any further submissions. By letter to the Arbitrator dated December 16, 1988, the grievant, on behalf of the Union, stated that the Activity had not taken any corrective action since the Supplemental Award and that the Union did not feel it necessary to have any further hearings or arguments. The letter also informed the Arbitrator that the grievant had transferred to another Federal agency on November 27, 1988, and that any award in his favor would result in a retroactive promotion and backpay for the period from the date of selection for the aircraft electrician foreman position until the date of his transfer. By letter to the Arbitrator dated December 16, 1988, the Activity stated that both the Union and management agreed that there was no need for further hearings on the matter and that the Arbitrator should render a final award. The Activity also informed the Arbitrator that it would not implement the Supplemental Award because the award violated management's rights under section 7106(a) of the Statute.

On December 31, 1988, the Arbitrator rendered the Final Award. He stated that because the Activity had not complied with the Supplemental Award, he had "no choice but to sustain the grievance." Final Award at 7. In view of the grievant's transfer, the Arbitrator ordered the grievant promoted to the aircraft electrician foreman position retroactively with backpay for the period from the date of selection for the foreman position until November 27, 1988.

In an Addendum to the Final Award, the Arbitrator explained that the remedy ordering the grievant promoted was proper not only because the Activity refused to comply with the Supplemental Award, but also because the remedy was authorized by the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2), requiring fair competition and fair treatment of employees in selection actions. He indicated that this basis for his remedy was supported by the Authority's decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA). He cited SSA for the principle that "what otherwise would be an arbitrator's violation of Section 7106 is not contrary to law when what the arbitrator did was authorized under another federal law." Final Award Addendum 2 (emphasis in original).

After the Agency filed the exceptions in this case, the Arbitrator issued a Memorandum of Clarification that restated the bases for his award. In the clarification, the Arbitrator stated that, although he considered the grievant more qualified for the position in question, he would have denied the grievance if management's procedures had met the statutory requirements of fairness set forth in 5 U.S.C. § 2301(b)(1) and (2).

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator's award is deficient because it is contrary to: (1) management's right to select under section 7106(a)(2)(C) of the Statute; and (2) the Back Pay Act, 5 U.S.C. § 5596. The Agency maintains that in order for the Arbitrator's award of a retroactive promotion with backpay to be authorized under section 7106(a)(2)(C) and the Back Pay Act, the Arbitrator was required to have found that the grievant's failure to be promoted was a direct result of an improper agency action. The Agency argues that the Arbitrator failed to make this essential finding. The Agency claims that, instead, as stated by the Arbitrator in his Final Award, the award is based on the Activity's failure to comply with the Arbitrator's Supplemental Award. The Agency also claims that none of the other bases mentioned by the Arbitrator in his awards authorizes the grievant's retroactive promotion with backpay.

B. The Union

The Union contends that the Agency's exceptions should be dismissed as procedurally deficient because the Agency failed to provide a full copy of the Arbitrator's Final Award with its exceptions to the Authority as required by section 2425.2 of the Authority's Rules and Regulations. The Union states that, as specifically noted by the Arbitrator, the Final Award had two attachments: Final Award Addendum 1 and Final Award Addendum 2. The Union maintains that the Agency failed to provide these attachments with its exceptions to the Authority. As part of its opposition, the Union provided Final Award Addendum 1 and included the Arbitrator's Memorandum of Clarification, which quotes the relevant portions of Final Award Addendum 2.

The Union also contends that the Agency's exceptions should be denied on the merits. The Union argues that the Arbitrator used the proper rationale and judgment in making the retroactive award of promotion with backpay for the grievant. Union's Opposition at 4. The Union maintains that the Arbitrator properly ordered the grievant promoted retroactively with backpay to remedy the Activity's violations of the merit system principles set forth in 5 U.S.C. § 2301 that constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(11).

IV. Analysis and Conclusions

A. The Agency's exceptions are not deficient

The fact that the Agency failed to provide two attachments to the Arbitrator's award to the Authority with its exceptions is not a basis for dismissing the exceptions. The Authority's practice in such circumstances is to grant a party an opportunity to provide the missing attachments. If a party granted such an opportunity fails to provide the Authority with the missing attachments, that failure is considered to be sufficient grounds for dismissing the exceptions. In the present case, the Union has provided the missing attachments to the Authority, with its opposition to the Agency's exceptions. Therefore, the record before us is complete and there was no need to ask the Agency to provide the missing attachments. In our view, the purpose for the requirement in our regulations of a complete copy of the award has been satisfied. Consequently, no purpose would be served in dismissing the Agency's exceptions.

B. The award is deficient

We conclude that the Arbitrator's award of a retroactive promotion with backpay is contrary to the Back Pay Act and is not authorized by the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2).

In order for a retroactive promotion with backpay to be authorized under the Back Pay Act, an arbitrator must find 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. For example, American Federation of Government Employees, Local 1698 and Department of the Navy, Aviation Supply Office, 34 FLRA 939, 942 (1990). In order to have properly awarded the retroactive promotion with backpay in this case, the Arbitrator must have determined that the grievant would have been selected for the aircraft electrician foreman position but for an unjustified or unwarranted personnel action. See id. at 942-43.

We conclude that the Arbitrator failed to make the findings necessary in order for the award of a retroactive promotion with backpay to be authorized under the Back Pay Act. The Arbitrator found that the Activity's original point system to evaluate the candidates for promotion to the aircraft electrician foreman position was unfair in violation of merit system principles. The Arbitrator subsequently found that the Activity's ranking system revised as a result of the Interim Award was still unfair in violation of merit system principles. In the Final Award, the Arbitrator stated that because the Activity had not complied with the Supplemental Award that ordered the Activity to reevaluate the grievant and the selected employee under a ranking system devised by the Arbitrator, the Arbitrator had no choice but to sustain the grievance and award the grievant a retroactive promotion with backpay for the specified period. In the Final Award, the Arbitrator explained that the retroactive promotion and backpay were proper not only because the Activity failed to comply with the Supplemental Award, but also because the remedy was authorized by the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2). He indicated that use of 5 U.S.C. § 2301 to authorize his remedy was supported by the Authority's decision in SSA, 30 FLRA 1156. These findings and explanations do not satisfy the test for an award of a retroactive promotion and backpay under the Back Pay Act.

Although the Arbitrator found that the point systems violated merit system principles and that the Activity refused to comply with the Supplemental Award, the Arbitrator acknowledged in his Supplemental Award that he did not know whether the grievant would have the higher point total under his revised point system and that the Activity, relying on its right to select the promotion candidate it prefers from a group of best-qualified candidates, could still decide not to promote the grievant. The Arbitrator never found, as required by the test under the Back Pay Act, that but for these actions the grievant would have been promoted to aircraft electrician foreman. Although the Arbitrator appeared to rely on the Union's ranking of the candidates as reported in the Union's August 24 letter (Memorandum of Clarification at 1), that ranking was self-serving and unverified.

In our view, the Arbitrator's finding that the Activity failed to comply with the Supplemental Award does not establish that, but for such action, the grievant would have been promoted. The Supplemental Award did not order the grievant promoted but, rather, ordered a reevaluation under the point system devised by the Arbitrator. Moreover, in his Memorandum of Clarification, the Arbitrator stated that although he considered the grievant more qualified, he would have denied the grievance if management's procedures had met the statutory requirement of fairness.

We also disagree with the Arbitrator's statement, relying on the Authority's decision in SSA, 30 FLRA 1156, that the violations of the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2) authorized the award of a retroactive promotion with backpay. The Authority's decision in SSA provides no support for the Arbitrator's award of a retroactive promotion with backpay. In Internal Revenue Service, Des Moines, Iowa District and National Treasury Employees Union, Chapter 4, 35 FLRA 144, 151 (1990), we noted that SSA concerned management's right to evaluate the performance of employees under section 7106(a)(2)(A) and (B) and not management's right to select under section 7106(a)(2)(C). We held that nothing in SSA indicates that the standards established in that case were to be applied to selection actions under section 7106(a)(2)(C) of the Statute. Id.

The merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2) also provide no support for the Arbitrator's award of a retroactive promotion with backpay. Certainly, a violation of merit system principles would constitute an unjustified or unwarranted personnel action and an improper agency personnel action. However, simply finding violations of merit system principles does not establish that, but for the violations, the grievant would have been promoted.

Moreover, we find that 5 U.S.C. § 2301 does not independently authorize the retroactive promotion with backpay of the grievant. Merit system principles set forth in 5 U.S.C. § 2301 are part of the Civil Service Reform Act of 1978. The findings and statement of purpose of the Reform Act direct that Federal personnel management should be implemented consistent with merit system principles and state that the principles were specified to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business. In adopting the House provisions concerning the application of merit system principles, the Conference Committee stated, as follows:

Unless a law, rule or regulation implementing or directly concerning the principles is violated (as under section 2302(b)(11)), the principles themselves may not be made the basis of a legal action by an employee or agency.

S. Rep. No. 1272, 95th Cong., 2d Sess. 128 (1978).

On the basis of the findings and statement of purpose of and the legislative history to the Reform Act, the Merit Systems Protection Board (MSPB) has held that the principles are stated in "hortatory terms [and] are not self-executing." Wells v. Harris, 1 MSPR 208, 215 (1979) (footnote omitted). An employee may be able to establish before the MSPB that an agency personnel action violated merit system principles and constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(11). For example, Bodinus v. Department of the Treasury, 7 MSPR 536, 542 (1981). Because the merit system principles are not self-executing, however, the MSPB requires a two-step analysis for an employee to establish a prohibited personnel practice. The employee must show that (1) the personnel action violates a law, rule, or regulation; and (2) the law, rule, or regulation violated is one that implements or directly concerns merit system principles. Id. at 543.

On the basis of the legislative history to the Reform Act, quoted above, the Authority has similarly held that a merit system principle set forth in 5 U.S.C. § 2301(b), alone, is not a basis on which the Authority will find a proposal nonnegotiable as conflicting with law. For example, National Treasury Employees Union and Internal Revenue Service, 21 FLRA 730, 731 (1986). In order for a proposal to be found nonnegotiable, it must be established that the proposal conflicts with a law, rule, or regulation implementing or directly concerning the merit system principle. Id.

In our opinion, because the merit system principles are not self-executing and, alone, may not form the basis of a legal action, the merit system principles set forth in 5 U.S.C. § 2301(b)(1) and (2) do not independently authorize and, therefore, cannot serve by themselves as the basis for the retroactive promotion with backpay of the grievant, as found by the Arbitrator. We find that the Arbitrator should have used a two-step analysis to support his award. Thus, after the Arbitrator found violations of merit system principles, he could not award the remedy that he did unless he based that award on a law, rule, or regulation implementing or concerning those merit system principles. In our view, that law is the Back Pay Act. The Back Pay Act authorizes arbitrators to make employees whole who have suffered a withdrawal or reduction in their pay, allowances, or differentials as a result of an unjustified or unwarranted personnel action, such as a personnel action in