42:0347(28)AR - - HHS, Family Support Administration, Washington, DC and NTEU Local 250 - - 1991 FLRAdec AR - - v42 p347



[ v42 p347 ]
42:0347(28)AR
The decision of the Authority follows:


42 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

FAMILY SUPPORT ADMINISTRATION

WASHINGTON, D.C.

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

LOCAL 250

(Union)

0-AR-2033

DECISION

September 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles E. Donegan 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 committed a prohibited personnel practice and violated the merit promotion provisions of the parties' collective bargaining agreement when it failed to select the grievant for a GS-9 position. The Arbitrator ordered the Agency to promote the grievant retroactively to a GS-9 position and awarded the grievant backpay.

For the following reasons, we conclude that the award of a retroactive promotion with backpay is contrary to section 7106(a)(2)(C) of the Statute and to the Back Pay Act, 5 U.S.C. § 5596. That portion of the award will be set aside and the award will be modified to provide that the grievant will receive priority consideration for the next appropriate GS-9 position vacancy for which she is qualified. The Agency's remaining exceptions will be denied.

II. Background and Arbitrator's Award

The grievant is a GS-303-7 Policy Staff Assistant in the Agency's Office of Family Assistance, Division of Policy, Compliance and Litigation Branch. In April 1989, the Agency announced a vacancy for a GS-345-9 Program Analyst position in the Compliance and Litigation Branch. The area of consideration was limited to employees with civil service status at Agency headquarters. The grievant and three other headquarters employees applied for the position but none of the applicants was found to be minimally qualified. The Agency reannounced the position in June 1989 and expanded the area of consideration to all sources, including applicants with civil service status and those without civil service status.

More than 40 people, including the grievant, applied for the GS-9 position announced in June. Eight of the 40 were placed on the list of best qualified applicants. See Exceptions, Tab B, Transcript at 78. From that list, the Agency selected an applicant who had occupied a GS-303-7 position in the Agency's Office of Family Assistance from 1986 until May 1989, when she became employed by the Social Security Administration. In connection with the second announcement, an Agency personnel management specialist had performed a minimum qualifications analysis of the Standard Form (SF) 171 applications submitted by the civil service status applicants and had determined that the grievant did not meet the minimum educational and experience qualification requirements for the GS-9 position.

The grievant filed a grievance protesting the Agency's failure to select her for the GS-9 position. The parties did not resolve the grievance and the grievance was submitted to arbitration on the following issues:

Whether [the Agency], in accordance with the Collective Bargaining Agreement, employed systematic and equitable procedures on the basis of merit in evaluating grievant's application for the position of GS-345-9 Program Analyst and determining [that] the grievant did not meet the minimum qualifications for the position?

Whether the Agency engaged in prohibited personnel practices by preselecting [another applicant] for the GS-9 Program Analyst position and deceiving the grievant regarding the contents of her SF-171 application.

Award at 3.

The Union contended before the Arbitrator that the Agency erred when it determined that the grievant was not minimally qualified for the GS-9 position. The Union claimed that a comparison of the grievant's application with the application of the person selected would show that the grievant possessed the required qualifications. The Union also argued that the Agency used inappropriate qualification standards and that the personnel specialist who rated the applicants failed to properly evaluate the grievant's application and failed to give the grievant the strong consideration due an applicant from the bargaining unit. The Union also contended that the Agency preselected the person chosen for the position in violation of the parties' agreement.

The Agency maintained before the Arbitrator that the promotion action was conducted in accordance with the collective bargaining agreement and that the grievant was properly found to be not minimally qualified for the GS-9 position when rated independently by two Agency personnel specialists using Office of Personnel Management (OPM) Manual X-118 qualification standards and other qualification standards established by OPM. The Agency contended that it gave strong consideration to bargaining unit candidates by first limiting consideration to headquarters employees and that it was only after finding no qualified candidates within the bargaining unit that the area of consideration was expanded to include all sources. The Agency argued that it was not required to consider documents and position descriptions in the grievant's personnel file to supplement the information contained in the grievant's SF-171 application. The Agency asserted that it used the proper qualification standards based on Manual X-118 and other OPM guidance when it determined that the grievant did not possess required specialized experience directly related to the work of the program analyst position and did not possess the required knowledge, skills, and abilities to perform the duties of the GS-9 program analyst position. The Agency denied that there was preselection in filling the position with a well-qualified applicant.

The Arbitrator found that the Agency violated Article 18, Merit Promotion, of the collective bargaining agreement because the Agency failed to "employ systematic and equitable procedures on the basis of merit in evaluating [the] grievant's application for the position of GS-345-9 Program Analyst . . . and determining [that] the grievant did not meet the minimum qualifications for the position." Id. at 24.(*) The Arbitrator ruled that the evidence showed "that the grievant's SF-171 was substantially similar, if not superior to that of the selectee[.]" Id. The Arbitrator noted that the personnel specialist who rated the applications had little knowledge about the position being filled and that she used qualification standards that were 25 years old and criteria that had no relationship to the position being filled. The Arbitrator also noted that the personnel specialist failed to consider relevant qualifying information in the grievant's personnel file.

The Arbitrator found that the Agency committed "a direct and significant violation of Article 18, Section 3 of the [collective bargaining agreement]" because it failed to give strong consideration to the grievant who was a qualified candidate from within the bargaining unit and that the Agency violated Article 1, Section 1(F) of the agreement by granting a preference to the employee selected. Id.

The Arbitrator also found that the Agency committed a prohibited personnel practice and violated Article 18, Section 16 of the agreement by preselecting the selectee. In addition, the Arbitrator determined that the Agency violated Article 6, Section 1(D) of the agreement when a management official "deceived the grievant regarding the contents of her SF-171 application[,]" by telling her when he received her application that "she had done a good job[,]" and by leading her to believe "that the substance of her application was pertinent and germane to the position sought." Id. at 26.

The Arbitrator concluded that the Agency "awarded the position to a person who was at best no better qualified that the grievant." Id. He noted that "the only clear distinction between the two candidates is that the grievant . . . is Black and the Selectee . . . is White." Id. According to the Arbitrator, "[t]he totality of evidence strongly indicates that the Agency has violated Article 6, Section 1 [of the agreement], which prohibits personnel actions which discriminate, inter alia, based on race." Id.

As his award, the Arbitrator ruled that the Agency violated Articles 6 and 18 of the collective bargaining agreement by failing to select the grievant for the GS-9 position. He ordered the Agency to promote the grievant to GS-9 with backpay retroactive to May 1, 1989.

III. The Award Is Not Contrary to Section 7106(a)(2)(A) And (B) of the Statute and the Arbitrator Did Not

Exceed His Authority

A. Positions of the Parties

In its first and second exceptions, the Agency asserts that the Arbitrator's finding that the Agency applied improper qualification standards in determining that the grievant was not minimally qualified for the GS-9 position violates management's rights under section 7106(a)(2)(A) and (B) of the Statute to assign work and to determine the skills and qualifications necessary to do the work of the position. The Agency alleges that the Arbitrator's finding also violates Federal Personnel Manual (FPM) Chapters 335 and 338 and is contrary to the parties' collective bargaining agreement. The Agency maintains that it applied the proper OPM minimum qualification standards set forth in Manual X-118 and mandated for use by FPM Chapters 335 and 338. The Agency contends that the Arbitrator's ruling that the use of those standards was not appropriate is contrary to those binding FPM regulations and to management's right to determine the qualifications needed by employees to perform work.

The Agency also contends that the Arbitrator exceeded his authority under the agreement by stating that the Agency was required to look beyond the grievant's SF-171 application and to consider information contained in her official personnel file to determine her qualifications. The Agency contends that it is management's right to decide which sources of information it will use in rating the qualifications of job applicants. The Agency argues that the method used in rating the applicants for the GS-9 position was uniform and equitable to all applicants. The Agency also maintains that limiting the examination of qualifications to information contained in the SF-171 applications is consistent with Article 18 of the agreement.

The Union denies that the Arbitrator improperly imposed qualification standards on the Agency and asserts that the Arbitrator merely determined that the grievant met the minimum qualification standards used by the Agency in rating applicants for the position. Further, the Union notes that, based on the standards used by the Agency, the Arbitrator determined that the grievant was equally qualified to the applicant selected for the position. The Union maintains that the Arbitrator's finding regarding the Agency's obligation to consider information outside the grievant's SF-171 is consistent with the collective bargaining agreement.

B. Analysis and Conclusions

We find nothing in the Arbitrator's award that violates management's rights under section 7106(a) to determine the qualifications of employees for positions or to make determinations concerning the personnel by which the Agency's operations will be accomplished. The Arbitrator discussed the qualification standards used by the Agency and made comments critical of those standards. However, he did not change the standards or require the Agency to apply different standards. Rather, the Arbitrator determined that the grievant was not rated fairly under the standards applied to all the applicants for the GS-9 position and he found that the grievant was entitled to a rating at least equal to that of the applicant selected for the position. He found that the Agency's failure to rate the grievant as minimally qualified was a violation of the merit promotion provisions of the agreement, including the requirement in Article 18, Section 3, that the Agency give strong consideration to bargaining unit candidates as a recruitment source.

The Agency has not shown that the Arbitrator's award is contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency is only disagreeing with the Arbitrator's findings and with his interpretation and application of the collective bargaining agreement. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).

We find no merit in the Agency's argument that the Arbitrator exceeded his authority under Article 50 of the agreement. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted, or awards relief to persons who are not covered by the grievance. See U.S. Department of Veterans Affairs, Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1898, 37 FLRA 1092 (1990). The Agency has not established that the Arbitrator's award relates to matters which were not submitted to arbitration, encompasses persons who were not included in the grievance, or in any other manner exceeds the Arbitrator's authority. Accordingly, the Agency's assertion that the Arbitrator exceeded his authority provides no basis for finding the award deficient.

The Agency's first and second exceptions will be denied.

IV. The Award Is Not Based on Nonfacts

A. Positions of the Parties

In its third exception, the Agency contends that the Arbitrator's award is deficient because it is based on nonfacts. The Agency asserts that the Arbitrator's conclusion that the grievant was qualified for the GS-9 position on the basis of specialized experience is erroneous. The Agency argues that instead of using the proper OPM qualification standard for a GS-9 program analyst position, the Arbitrator substituted his own standard concerning the kind of specialized experience required. The Agency contends that, contrary to the Arbitrator's finding, the grievant did not possess the requisite experience under the OPM standard for experience.

The Agency disagrees with the Arbitrator's determination that the grievant's SF-171 application was substantially similar to that of the person selected. The Agency asserts that the Arbitrator erroneously assessed the grievant's training and experience and that he failed to consider the differences between the grievant's experience and the experience of the person selected. Further, the Agency denies that there was preselection in filling the GS-9 position and notes that the Arbitrator failed to substantiate that finding by referring to relevant evidence or testimony. The Agency submits that there is no evidence in the record to indicate that the person selected for the GS-9 position was ever asked by the Agency to apply for the position under either the first or second announcement of the position. Finally, the Agency asserts that the finding that the grievant was deceived by management is not based on fact. The Agency argues that a note from a management official to the grievant stating that the grievant's SF-171 was neater and better written than other applications for the position does not prove that the grievant was deceived or that the Agency intended to deceive her.

The Union maintains that none of the Agency's contentions meets the requirements for establishing that the award is deficient because it is based on a nonfact. The Union contends that none of the four findings by the Arbitrator that the Agency labels as nonfacts is objectively ascertainable and that none of those findings constitutes a fact upon which the award was based. The Union asserts that the Agency is merely disagreeing with the Arbitrator's factual determinations based on the record.

B. Analysis and Conclusions

We will find an award deficient because it is based on a nonfact if the central fact underlying the award is clearly erroneous and is a gross mistake of fact, but for which a different result would have been reached. See, for example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316, 323 (1990).

The Arbitrator's findings that the grievant was not given a proper qualifications rating, that her qualifications were equal to those of the person selected, that there was preselection, and that the grievant was deceived, do not constitute clearly erroneous facts on which the Arbitrator's award is based. The Agency is merely disagreeing with the Arbitrator's findings of fact and is attempting to relitigate the matter before the Authority. Disagreement with an arbitrator's findings of fact and attempts to relitigate a matter decided by an arbitrator provide no basis for finding an award deficient. See U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160, 170 (1991). Therefore, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient because it is based on nonfacts. The Agency's third exception will be denied.

V. The Award Is Contrary to Section 7106(a)(2)(C) of the Statute

A. Positions of the Parties

In its fourth exception, the Agency contends that the Arbitrator's award violates management's right under section 7106(a)(2)(C) of the Statute to select from a group of properly certified candidates for promotion or from any other appropriate source. Specifically, the Agency argues that the Arbitrator failed to find a direct connection between an improper action by the Agency and the failure of the grievant to be selected for the GS-9 position. The Agency asserts that in order to award the grievant a retroactive promotion, the Arbitrator was required to reconstruct the promotion action and determine that the selecting official would have selected the grievant but for the Agency's alleged preselection of a candidate from outside the Agency. The Agency maintains that the grievant could not have been selected because she was not minimally qualified for the position. The Agency also asserts that the Arbitrator could not require management to select a bargaining unit employee over an equally qualified candidate from outside the bargaining unit.

The Union denies that the award is contrary to section 7106(a)(2)(C) of the Statute. The Union maintains that the Arbitrator found that the Agency violated the parties' collective bargaining agreement by (1) failing to give "strong" consideration to the grievant, as a member of the bargaining unit, (2) granting a preference to the outside candidate, (3) preselecting the outside candidate, and (4) deceiving the grievant as to the adequacy of her application. Opposition at 12. The Union points out that Article 18, Section 15 of the agreement provides that an employee is entitled to a retroactive promotion when an arbitrator determines that, but for an unwarranted personnel action by the Agency, the employee would have been promoted.

The Union states that the Arbitrator found the grievant to be qualified for the position and that "her application was similar, if not superior, to that of the selectee[.]" Id. The Union also notes the Arbitrator's finding that the Agency violated Article 18, Section 3 of the agreement, which provides that the Agency will give "strong" consideration to recruiting from within the bargaining unit when determining appropriate recruitment sources. Id. at 13. The Union asserts that if the Agency had complied with that agreement provision, the grievant would have been found qualified when the vacancy was first announced in April 1989 and would have been selected for the position under that announcement.

The Union cites National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 510-11 (1990) (Family Support Administration), as presenting a similar situation in which the Authority upheld an arbitrator's finding of a causal connection between an improper agency action of failing to give an employee appropriate consideration for a vacant position and the employee's not being promoted. The Union contends that, in this case, the Arbitrator's finding that the Agency violated the applicable promotion procedures and failed to select the grievant, who was at least equally as qualified as the selectee, should similarly be upheld.

B. Analysis and Conclusions

We agree with the Agency that the Arbitrator's award ordering the grievant promoted is 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. An arbitrator may, consistent with an agency's right to make selections under section 7106(a)(2)(C) of the Statute, properly award a grievant a promotion in circumstances where the award results from enforcement of a contractual arrangement. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-17 (1990) (Customs Service). An arbitrator also may properly order an agency to select or promote an employee when the arbitrator determines that the employee was affected by improper agency action that directly resulted in the failure of the employee to be promoted. See U.S. Department of Veterans Affairs, Regional Office, Waco, Texas and American Federation of Government Employees, Local 2571, 41 FLRA 681, 685 (1991). See also U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1421-22 (1990).

In this case, the Arbitrator found that the grievant was prejudiced by the Agency's failure to rate her as minimally qualified and eligible to be placed on the list of best qualified applicants. However, the Arbitrator did not find that the Agency's improper action directly resulted in the grievant's failure to be selected for the GS-9 position. At best, the Arbitrator determined that the grievant could have been selected, which is not a sufficient basis upon which to order a retroactive promotion.

We find no merit in the Union's argument that the grievant would have been selected if the Agency had found her to be minimally qualified when the position was first announced in April 1989 by Announcement No. 89-027A. The Arbitrator did not address and the record does not show that the grievance concerned the grievant's nonselection under that announcement. Rather, before the Arbitrator the parties argued the issue of the grievant's nonselection under Announcement No. 89-059A and the Arbitrator ruled on that issue. See Award at 11, 16, and 24. There was no finding by the Arbitrator that the grievant would have been selected under the announcement of April 1989 if the Agency had found her to be minimally qualified for the GS-9 position.

We find that the Union's reliance on Family Support Administration is misplaced. Family Support Administration concerned a grievance by an employee who alleged that he was denied a promotion because of his activities as a union official and is distinguishable from the present case. The arbitrator in Family Support Administration reconstructed the challenged promotion action and determined that the grievant would have been selected if he had been interviewed in a timely manner. For that reason, the Authority concluded that the arbitrator properly established a direct causal connection between the Agency's improper discrimination against the grievant and his nonselection and found that the arbitrator established the required condition for ordering the grievant's retroactive promotion with backpay to the position. In this case, however, the Arbitrator did not find a direct causal connection between the Agency's improper action and the grievant's nonselection.

Based on the record before us, we conclude that the award ordering the grievant retroactively promoted does not constitute the enforcement of, or the remedy for a violation of, a specific provision of the parties' agreement within the meaning of Customs Service. Further, we find that the Arbitrator failed to determine that there was a causal connection between an improper action by the Agency and the grievant's failure to be promoted. Consequently, the award is contrary to section 7106(a)(2)(C) of the Statute and must be set aside.

VI. The Award Is Contrary to the Back Pay Act

A. Positions of the Parties

The Agency contends in its fifth exception that the award is contrary to the Back Pay Act because the Arbitrator failed to make the required findings under the Back Pay Act to support the granting of a retroactive promotion with backpay to the grievant. The Agency maintains that the Arbitrator did not find that an unjustified or unwarranted personnel action by the Agency resulted in the withdrawal or reduction of the grievant's pay. The Agency argues that there was no unjustified or unwarranted personnel action in this case because a failure to give an employee a competitive promotion is not such an action and does not result in the withdrawal or reduction in pay. In support of that argument, the Agency cites Brown v. Secretary of the Army, 918 F.2d 214 (D.C. Cir. 1990), petition for cert. filed May 13, 1991 (No. 90-1733) for the proposition that a failure to promote an employee does not constitute an improper withdrawal or reduction in pay for purposes of the Back Pay Act. The Agency maintains that the grievant could not have been selected for the position because she was not minimally qualified. Further, the Agency alleges that the Arbitrator improperly awarded a promotion with backpay retroactive to May 1, 1989 rather than to the closing date of the second announcement in June 1989.

The Union contends that the Arbitrator made a proper award of a retroactive promotion with back pay based on the Agency's commission of an unjustified and unwarranted personnel action by violating the collective bargaining agreement and by committing prohibited personnel practices. The Union asserts that failure to promote an employee in violation of a nondiscretionary personnel policy contained in a collective bargaining agreement, such as the requirement in this case to give strong consideration to internal candidates, gives rise to an entitlement to backpay. The Union maintains that but for the Agency's violation of the agreement, the grievant would have been selected for the position. The Union argues that an award retroactive to May 1, 1989 is proper because if the Agency had complied with the agreement, an internal candidate would have been selected and the position would not have been reannounced in June.

B. Analysis and Conclusions

We conclude that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator did not find that the grievant would have been selected for the GS-9 position if the Agency had not violated the provisions of the parties' agreement.

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 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 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514 (1991) (VA Cleveland).

The Arbitrator's award in this case does not satisfy the requirement of the Back Pay Act that the grievant would have been selected "but for" the Agency's unjustified or unwarranted personnel action. Although the Arbitrator did find that the Agency violated relevant provisions of the parties' collective bargaining agreement by: (1) not giving strong consideration to bargaining unit candidates before seeking applicants from outside the Agency; (2) failing to apply qualification standards equitably; (3) engaging in preselection of an outside applicant; and (4) discriminating against the grievant, the Arbitrator did not find that the grievant would have been selected for the GS-9 position had those violations of the agreement not occurred. See 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). In VA Cleveland, the Authority held that where a direct connection between an unwarranted and unjustified personnel action and the failure of an employee to be selected for a position "is implicit from the record and the award[,]" the required "but for" finding is present for purposes of the Back Pay Act. 41 FLRA at 519. However, a finding that the grievant would have been selected but for the Agency's improper action is not implicit from the record in this case. Consequently, the Arbitrator's award of a retroactive promotion with backpay is deficient because it is contrary to the Back Pay Act and will be set aside.

VII. Remedy Awarded by the Arbitrator

As we have determined with regard to the Agency's fourth and fifth exceptions, the Arbitrator's award of a retroactive promotion with back is contrary to management's right to make selections under section 7106(a)(2)(C) of the Statute. The award is also contrary to the Back Pay Act because the Arbitrator failed to determine that the grievant would have been selected for the GS-9 position in the absence of the Agency's improper actions. Consequently, the Arbitrator's award of retroactive promotion with backpay is deficient and the award must be modified.

We have held that where there is no basis for an award of a promotion, but where an agency violates provisions of law, rule, regulation or negotiated agreement in a selection action, other remedies, such as awarding priority consideration, are appropriate. See, for example, Internal Revenue Service, Des Moines, Iowa District and National Treasury Employees Union, Chapter 4, 35 FLRA 144, 151 (1990) (where agency failed properly to consider grievant's prior experience in evaluating the grievant for promotion, award granting grievant priority consideration upheld). Similarly, where an arbitrator finds that a selection action did not conform to applicable requirements of law or a collective bargaining agreement, the arbitrator may order that the action be rerun. For example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 942-43 (1991); U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 143 (1990) (arbitrator properly ordered agency to rerun selection action that did not conform to requirements of collective bargaining agreement).

We conclude that in the circumstances of this case, awarding the grievant priority consideration for a future GS-9 vacancy is the appropriate remedy. The grievant was entitled under Article 18, Section 3 of the parties' agreement to receive "strong" consideration and the Arbitrator found that the Agency violated that provision. Attachment to Exceptions, Tab Q. We note that Article 18, Section 16B of the agreement provides that "an employee [who] is improperly excluded from the best qualified list from which a selection was made . . . will receive priority consideration for the next appropriate vacancy for which he/she is qualified." Id. Accordingly, we will modify the award to provide as a remedy that the grievant be given priority consideration for the next appropriate GS-9 vacancy for which she is qualified.

VIII. Decision

The award of retroactive promotion with backpay to May 1, 1989 is set aside. The award is modified to grant the grievant priority consideration for the next appropriate GS-9 vacancy for which she is qualified in accordance with the parties' collective bargaining agreement. The Agency's first, second and third exceptions are denied.

APPENDIX

ARTICLE 6

PROHIBITED PERSONNEL PRACTICES

Section 1

Any employee who has the authority to take, direct others to take, recommend or approve any personnel action, shall not, with respect to such authority:

A. Discriminate for or against any employee or applicant for employment on the basis of race, color, religion, sex, national origin, sexual preference, age, handicapping condition, marital status, or political affiliation;

. . . .

D. Deceive or willfully obstruct any person with respect to such person's right to compete for employment;

. . . .

F. Grant any preference or advantage not authorized by law, this Agreement, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment[.]

ARTICLE 18

MERIT PROMOTION

Section 1

It is agreed that all promotions to bargaining unit positions and the placement actions set forth in Section 2 below will be made using systematic and equitable procedures on the basis of merit and from among properly ranked and certified candidates or from other appropriate sources.

Section 2

A. When merit promotion procedures are to be used, it is understood that this Article applies to all personnel

actions not specifically excluded in Section 2.D. below. Examples of personnel actions covered are:

1. filling a position by promotion[.]

. . . .

Section 3

Prior to its determination of the appropriate recruitment sources for filling bargaining unit positions, the Administration will give strong consideration to the potential for qualified candidates within the bargaining unit as a recruitment source. The Administration recognizes that in its search for the best qualified applicants to fill positions, internal candidates may be a suitable source, especially in light of balancing recruitment needs against the career development needs of current employees.

The Administration will provide the Union quarterly a list or all competitive promotion selections made within the bargaining unit. The provided list will be annotated to show those positions for which bargaining unit employees were on the best qualified list and those selected.

. . . .

Section 15

If, as a result of a grievance being filed under this Agreement, either the Employer agrees, or an arbitrator decides there was an unjustified or u