36:0122(14)AR - - VA, Medical Center, Houston, TX and AFGE Local 1633 - - 1990 FLRAdec AR - - v36 p122



[ v36 p122 ]
36:0122(14)AR
The decision of the Authority follows:


36 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION

MEDICAL CENTER

HOUSTON, TEXAS

(Activity) (*)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1633

(Union)

O-AR-1660

DECISION

June 22, 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 Ed W. Bankston filed by the Veterans Administration (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 exceptions.

The grievance before Arbitrator Bankston involved the failure of two promotion-eligible employees of the Activity to be selected for a single vacant position. The Arbitrator found that the Activity failed to give full consideration to the grievants and ordered, among other things, that both grievants be promoted, one immediately, and the other to the next available opening, and that both receive backpay.

For the reasons stated below, we conclude that the Arbitrator exceeded his authority and that portions of the Arbitrator's award are contrary to section 7106(a)(2)(C) of the Statute and the Back Pay Act. Accordingly, we will modify those portions of the award.

II. Background and Arbitrator's Award

The two grievants in this case, Aragon and Scarbrough, were both involved in two previous grievances addressed, respectively, by the January 18, 1988 award of Arbitrator John A. Bailey and the July 1, 1988 award of Arbitrator Michael B. Huston. The current case, and the earlier disputes, arose out of the Activity's refusal to select the two grievants for various WG-10 air conditioning equipment operator positions for which they had applied. In the first case, Arbitrator Bailey found that the Activity violated the parties' collective bargaining agreement and ordered that either Aragon or Scarbrough be promoted to the WG-10 position. On August 25, 1988, the Authority set aside that award, finding that the arbitrator's award was contrary to management's right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute. Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 32 FLRA 997 (1988) (VA, Houston). According to Arbitrator Bankston, Arbitrator Huston denied the second grievance, but Arbitrator Bankston did not note the basis for the denial of the grievance.

On May 4, 1988, the Union filed the grievance involved in the present case on behalf of Aragon and Scarbrough. The grievance involved various allegations, including discrimination, and sought promotions for both grievants to WG-10 air conditioning equipment operator positions and their return to the Engineering Service Department, where they had worked as WG-8 air conditioning equipment operators prior to a May 1987 Reduction-In-Force (RIF). Pursuant to the RIF, Scarbrough had been reassigned to the position of WG-6 gardener (tractor operator) and Aragon to the position of WG-5 air conditioning equipment operator. The parties were unable to resolve the grievance and it was submitted to arbitration.

At the hearing, two issues were presented to the Arbitrator for resolution. The first issue involved arbitrability and was stated as follows: "Did the Agency violate Article 13, Section 9 of the Agreement by failing to answer the third-step grievance? If so, what is the proper remedy?" The parties stipulated to the second issue, on the merits, as follows: "Whether the Agency violated the (Master) Agreement and the Merit Promotion Policy in filling Vacancy Announcement No. 149(87)? If so, what is the proper remedy?" Arbitrator's Award at 4. At the hearing, it was agreed that of all the allegations reflected in the original grievance, the sole remaining issue for the Arbitrator's consideration was the matter of promotion concerning Vacancy Announcement No. 149(87). Id. at 17-18.

With respect to the first issue, Arbitrator Bankston noted that Article 13, Section 9 of the parties' agreement provides:

Section 9 - Should management fail to comply with the time limits at Step 1, the grievance may be advanced to Step 2. Should management fail to comply with the time limits for rendering a decision at Step 2, or Step 3, the grievance shall be resolved in favor of the grievant, provided that: (1) receipt of the grievance had been acknowledged by management at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance.

Id. at 9.

The Arbitrator found that the Activity failed to provide a timely step 3 answer to the grievance. The Arbitrator found that such violation was subject to the remedy provided by Article 13, Section 9: resolution of the grievance in favor of the grievants. Although he found this procedural violation, the Arbitrator proceeded to render an opinion on the merits. Id. at 29.

On the merits, the Arbitrator concluded that the Activity violated the agreement by failing to give "full" consideration to the promotion applications of the grievants in accordance with the substantive requirements of the agreement. Id. at 43, 51. The Arbitrator found that, absent the violations of the agreement, the grievants would have been promoted to the job classification of air conditioning equipment operator at the WG-10 level. Id. at 52. He further found that "the public service careers of these grievants were interrupted by an improperly motivated Reduction In Force, and that, but for the RIF, these grievants were subject to promotion to the WG-10 level in conformance with the agreement[.]" Id.

The Arbitrator directed the Activity to remedy the grievance by reinstating grievants Aragon and Scarbrough to their former job classifications as air conditioning equipment operators and to promote them to the WG-10 level. Because this grievance concerned only one vacancy for which both could not have been selected, he directed that Scarbrough be reinstated immediately into the position and that Aragon be reinstated to the next available opening. He based Scarbrough's placement in the position on his reconstruction of what the Activity would have done had it not violated the collective bargaining agreement. Id. at 54. The Arbitrator further ordered that both grievants be awarded backpay as required to make them whole: "The back pay is to be computed from the actual date that they were first improperly non-selected for promotion to the WG-10 level. That date would be associated with the Bailey Award, and may be ascertained by reference to the records." Id. at 54-55. For Aragon, the Arbitrator ordered pay at the WG-10 level until such time as Aragon is reinstated. In effect, the Arbitrator ordered that "both grievants . . . receive back pay sufficient to bring their total earnings up to that which they would have earned had they been properly promoted." Id. at 55. The Arbitrator explained that "[t]he object of the monetary award is that the grievants receive that which they would have earned but for their improper non-selection to the WG-10 level positions." Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient as it allows the collective bargaining agreement provisions governing consideration of candidates to deny management's right to select in accordance with section 7106(a)(2)(C) of the Statute. In this regard, the Agency notes that the Authority considered this issue in VA, Houston. In VA, Houston, the arbitrator resolved a similar dispute, involving the failure of the same grievants to be selected to fill a similar promotion vacancy. The Agency argues that the arbitrator interpreted the same contract provision of the same agreement in a manner that prevented management from going outside the initial area of consideration and precluded it from considering or selecting other qualified candidates. In VA, Houston, the Authority set aside the award because it denied management its section 7106 right to select from any appropriate source.

The Agency contends that in this case the Arbitrator also has interpreted the parties' agreement in a manner that prevents management from not selecting candidates and from selecting from other appropriate sources. Therefore, the Agency contends that, as in VA, Houston, the Authority should set aside the award here because it denies management its statutory right to select from other appropriate sources.

B. Union's Opposition

The Union contends only that the Agency's exceptions are untimely filed under the Authority's Rules and Regulations. The Union argues that in order to have been timely, the Agency's exceptions had to be filed no later than December 16, 1988, and that the exceptions were filed on December 21.

IV. Analysis and Conclusions

A. The Agency's Exceptions Were Timely Filed

We find that the Agency's exceptions were timely filed. The Arbitrator's award was dated November 17, 1988, and was served on the parties by mail. The time limit for filing an exception to an award is 30 days beginning on the date the award is served on the filing party. When the award is served on the parties by mail, 5 days are added to the period for filing exceptions to the award. In order to be timely, the Agency's exceptions had to be filed no later than December 21, 1988. Accordingly, we find that the Agency's exceptions, filed on December 21, were timely.

B. Portions of the Award are Deficient

We conclude that the Arbitrator exceeded his authority and that portions of the Arbitrator's award are contrary to section 7106(a)(2)(C) of the Statute and the Back Pay Act.

We find that the portion of the Arbitrator's award granting grievant Aragon the next available opening and the accompanying backpay and front pay is contrary to section 7106(a)(2)(C) of the Statute. Further, we find that the backpay awarded to grievant Scarbrough should be computed from the date the selectee was appointed to the WG-10 air conditioning equipment operator position under Vacancy Announcement No. 149(87). In all other respects, we deny the Agency's exceptions.

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. Consistent with this management right, an arbitrator may properly order an employee to be selected for promotion only when the arbitrator finds that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be promoted. For example, American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 94-95 (1988). Similarly, in order for a retroactive promotion with backpay to be authorized under the Back Pay Act, the 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, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562 (1987).

The Arbitrator specifically found that the selected employee's qualifications were not equal to or better than those of either of the grievants and that both grievants had been affected by an improper agency action that directly resulted in the Activity's failure to select them for the position. Arbitrator's Award at 50, 52. The Arbitrator found that, but for the Activity's failure to give full consideration to the grievants, they would have been promoted to the vacancy. Id. at 51-52. He further found that, consistent with the collective bargaining agreement, the Activity should have placed Scarbrough in the position. Id. at 54. Based on these conclusions, we find that the Arbitrator made the necessary finding to award Scarbrough the WG-10 air conditioning equipment operator position in question.

We find, however, that the Arbitrator had no basis on which to grant Aragon the next available opening. The parties stipulated to the issue on the merits as: "Whether the Agency violated the (Master) Agreement and the Merit Promotion Policy in filling Vacancy Announcement No. 149(87)? If so, what is the proper remedy?" Id. at 4. At the hearing, it was agreed that of all the allegations reflected in the grievance, the sole remaining issue for the Arbitrator's consideration was the matter of promotion concerning Vacancy Announcement No. 149(87). Id. at 17-18. Thus, by stipulating the narrow issue to be addressed by the Arbitrator, the parties foreclosed him from considering the matter of the 1987 RIF, which was part of the original grievance. Accordingly, the Arbitrator's remedial authority also was limited to the matter of promotion concerning Vacancy Announcement No. 149(87). We conclude that in fashioning the remedy here to address "an improperly motivated Reduction In Force," id. at 52, an issue not properly before him, the Arbitrator exceeded his authority. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 34 FLRA 342, 346 (1990) (an arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration). Accordingly, we will modify the award as discussed below.

As the failure to select involved only one position, once the Arbitrator made the necessary finding regarding Scarbrough, he could not have made the same finding favorable to Aragon. In order to grant Aragon the next available opening, the Arbitrator was required to find that Aragon was affected by an improper agency action that directly resulted in the failure to promote him to that position. In our view, he could not have made such a finding except by going beyond the authority granted him by the parties and improperly considering the merits of the RIF. We find that the Arbitrator did not make the necessary finding that Aragon was affected by an improper agency action that directly resulted in the failure to promote Aragon to that particular position. Therefore, the Arbitrator could not grant Aragon the next available position or award him backpay.

Although the Arbitrator did not make the findings necessary to order Aragon promoted, the Arbitrator did find that the Activity violated the agreement by failing to give "ful