41:0514(50)AR - - AFGE Local 31 and VA Medical Center, Cleveland, OH - - 1991 FLRAdec AR - - v41 p514
[ v41 p514 ]
The decision of the Authority follows:
41 FLRA No. 50
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Dallas M. Young 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 exception.
The grievant filed a grievance when she was not selected for promotion. The Arbitrator ordered the grievant retroactively promoted with backpay.
We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act, and we will deny the Agency's exception.
II. Background and Arbitrator's Award
In February 1988, the grievant was one of eight employees who applied for six vacancies in the position of medical supply technician, GS-5. When she was not selected, she filed a grievance. The grievant was selected for a subsequent vacancy and was promoted to medical supply technician, GS-5, in October 1988. However, her grievance remained unresolved and was submitted to arbitration.
Before the Arbitrator, the Union disputed management's consideration of the use of leave as part of the rating and ranking process. The Union claimed that use of leave was not a proper evaluation factor. The Union noted that use of leave had not previously been used as an evaluation factor and was not used in October 1988 when the grievant was promoted. The Union further claimed that had use of leave not been used as an evaluation factor in February 1988, the grievant, who was ranked seventh overall, would have been one of the six highest-ranked candidates, and she would have been selected for promotion.
The Union also disputed the grievant's rating under the evaluation factor of use of leave. The Union argued that five of the eight candidates had less, or no more, accrued leave than did the grievant, but were rated higher under this factor than the grievant. In particular, the Union argued that the grievant should have been rated higher than the sixth-ranked and last candidate chosen. The Union claimed that this candidate had less accrued leave than the grievant and had received a sick leave abuse letter in the past and that management was unable to explain why this candidate had been rated higher under the use of leave factor than the grievant. The Union asserted that had the grievant been fairly rated under the evaluation factor of use of leave, she would have ranked sixth overall and she would have been promoted in February 1988.
Before the Arbitrator, the Agency argued that the grievance was not arbitrable because the Union failed to proceed in a timely manner. The Agency also argued that the grievant was not entitled to be promoted. The Agency advised the Arbitrator that consistent with Authority decisions, the grievant was "entitled to the promotion retroactive to February 1988, only if the Arbitrator finds that her failure to receive such promotion was the direct result of an unjustified or unwarranted personnel action or violation of the Master Agreement." Award at 6 (emphasis in original). The Agency noted that the six candidates with the highest overall scores were selected for promotion. The Agency argued that all the candidates were rated fairly and that the grievant's failure to be selected was the result of six other candidates having been rated higher than the grievant. With respect to the Union's comparison of the leave balances of the grievant and the sixth-rated candidate, the Agency argued that the evaluation factor was not a strict comparison of leave balances, but an assessment of dependability. Moreover, the Agency noted that the sixth-rated candidate also received a low rating under this evaluation factor. The Agency further argued that, as an assessment of dependability, the disputed evaluation factor was an appropriate consideration in determining a candidate's qualification for promotion.
The Arbitrator first found that the grievance was arbitrable. He rejected the Agency's claims that the grievance was untimely filed or untimely processed. On the merits, the Arbitrator found that the promotion provisions of the parties' collective bargaining agreement had been completely disregarded by the Agency in making the selections for medical supply technician in February 1988. The Arbitrator reviewed the ratings of the candidates under the evaluation factor for use of leave. He found that the grievant had received the lowest rating with the result that her overall rating was just two points below the sixth-ranked candidate, whose absences had been given only "moderating weight." Award at 12. He noted the unrefuted testimony that use of leave had not been previously used as an evaluation factor for promotions and was not used in October 1988 when the grievant was promoted. The Arbitrator concluded that, for the February 1988 promotions to medical supply technician, the inclusion of the evaluation factor for use of leave in the rating and ranking of the candidates for promotion "was unfair and unjust." Id. Based on the evidence and testimony presented, including the evaluations of all the candidates, the Arbitrator ordered the grievant retroactively promoted with backpay from February 1988 to October 1988.
III. Positions of the Parties
The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency asserts that, under well-established Authority case law interpreting and applying the Back Pay Act, an arbitrator may not award a retroactive promotion and backpay without finding that, but for the unjustified or unwarranted personnel action, the grievant would have been promoted. The Agency maintains that the Arbitrator made no such finding in this case and that, accordingly, the award of a retroactive promotion with backpay must be set aside.
The Union contends that the Arbitrator was correct in awarding backpay even though he did not specifically find that, "but for" the unwarranted actions, the grievant would have been promoted in February 1988. Union's Opposition at 2. The Union maintains that requiring such an explicit finding is appropriate when "the case scenario is not clear[,]" but that requiring such a finding when the case is completely clear is not appropriate. Id. at 1.
The Union claims that this case is clear because the grievant would have been promoted if the evaluation factor for use of leave had not been used to evaluate the candidates for promotion. The Union has submitted the evaluations of the eight candidates and notes that if the evaluation factor for use of leave were deleted, the grievant would have been one of the six highest ranked candidates. Therefore, the Union contends that, if the use of leave had not been used as an evaluation factor, the grievant "would have been in the selection of the 6 positions, 'but for' the leave [the grievant] did not receive the promotion." Id. The Union also contends that the grievant should have received a higher evaluation under the use of leave factor than the sixth-ranked candidate. The Union notes that, if the grievant had received a higher rating under the use of leave factor than the sixth-ranked candidate, she would have ranked sixth and she would have been promoted. The Union asserts that its position is supported by the decision in American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988) (Wm. Jennings Bryan Dorn Veterans Hospital).
IV. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596.
Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials. Accordingly, the Authority has advised that, in order to award backpay, 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 t