44:1223(100)AR - - NLRB and NLRB Union - - 1992 FLRAdec AR - - v44 p1223
[ v44 p1223 ]
The decision of the Authority follows:
44 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD UNION
May 13, 1992
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 Robert G. Williams filed by the Agency and the Union 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 Agency did not file an opposition to the Union's exceptions.
A female employee of the Agency filed a grievance alleging that she was not selected for promotion to a supervisory attorney position because of sex discrimination. The Arbitrator found that the grievant presented a prima facie case of discrimination and that in selecting a male employee instead of the grievant, the Agency "failed to articulate any objective process" for making a selection. Award at 28. The Arbitrator ordered the Agency to develop objective selection standards and to make a new selection by applying those standards to the three candidates who were on the list of best-qualified applicants when the original selection was made. The Arbitrator also ordered that following the new selection action, the two nonselected candidates would be allowed to contest the new selection action. Further, the Arbitrator ruled that, if the Agency failed to present written objective standards to the Union within 60 days of the award, the grievant would be appointed to the supervisory attorney position.
For the following reasons, we conclude that the award is contrary to law. We will set the award aside and remand the matter to the parties for resubmission to the Arbitrator for action in accordance with this decision.
II. Background and Arbitrator's Award
In August 1989, the Agency advertised a vacancy for the position of Supervisory Attorney, GS-14, in Region 11, Winston-Salem, North Carolina. Three persons from Region 11 and one person from outside the Region applied for the position. The person from outside the Region was eliminated from consideration on the basis of experience. The remaining three applicants included two men and one woman. All three applicants had been with the Agency for approximately the same length of time. Both the male applicant who was selected for the position (the selectee) and the grievant had received performance ratings of commendable for the years 1988 and 1989. All three applicants had served as acting supervisory attorney within recent years. The two male applicants had worked in the Region 11 office during their entire careers with the Agency. The grievant had worked in various areas of the Agency, including Washington, D.C., where she was a staff attorney for a Member of the National Labor Relations Board (NLRB), and Puerto Rico, where she had served as an acting supervisory attorney.
A ranking committee consisting of the Assistant to the Regional Director of Region 11 and the Regional Attorney determined that the three applicants from the Region should be placed on the list of best-qualified applicants submitted to the Regional Director for a recommendation on selection. The list of best-qualified applicants was not ranked numerically. The list was sent to the Regional Director on September 6, 1989.
On October 20, 1989, the Regional Director sent a memorandum to Agency headquarters recommending that one of the male applicants be selected for the position. In the selection recommendation the Regional Director discussed and compared the qualities of the three applicants. He noted, among other things, that the selectee had received higher performance ratings than the grievant on the critical elements of timeliness and quality of work and that the selectee had "constantly demonstrated superior knowledge and ability to perform the technical aspects of a supervisory attorney's duties." Award, Appendix B at 1. The Regional Director noted that there did not "appear to be any significant differences in the performance of either [of the three] candidate[s] as acting supervisor[y] [attorney] or regional attorney" Id. at 2. He also noted that the selectee seemed less approachable by subordinates than the other two candidates and stated that the selectee "has an abrupt manner and appears to have problems at times with verbal communication[s,]" and that the selectee "tends to be less able than [the other two candidates] to see the 'big picture' in casehandling situations which involve complicated issues or fact patterns, and for that reason . . . requires somewhat greater guidance and direction than [the other two candidates]." Id. The Regional Director concluded that that factor was not "sufficient to warrant [the grievant] being awarded the Supervisory position." Id. The Regional Director concluded that "[u]nder all the circumstances, including performance of the three candidates as indicated in their appraisals, the skills, experience and knowledge of the candidates, and the potential of the candidates to perform as supervisory attorney, the Region recommends selection of [the selectee]." Id.
The Agency's General Counsel approved the selection and appointment of the selectee on December 14, 1989. The appointment became effective on February 11, 1990. On March 13, 1990, the other male candidate filed a grievance protesting his nonselection. He subsequently withdrew the grievance. On March 15, 1990, the grievant filed a grievance protesting her nonselection. That grievance was not resolved and was submitted to arbitration on the following issue:
Did the Agency violate the [a]greement, applicable rules or laws in denying the [g]rievant a promotion to [s]upervisory attorney and, if so, what shall be the remedy?
Award at 2.
In their arguments before the Arbitrator, both the Union and the Agency cited the decision of the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas) in support of their positions. The Union contended that the grievant had made a prima facie case of discrimination under McDonnell Douglas and that the Agency had failed to rebut the inference of discrimination by providing a nondiscriminatory, nonpretextual reason for the grievant's nonselection. The Union also argued that the Agency had failed to comply with its affirmative action plan and, therefore, had discriminated against the grievant. The Agency denied that it had discriminated against the grievant and maintained that its selection decision was made in accordance with the criteria set forth in McDonnell Douglas and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The Arbitrator examined the sections of the parties' collective bargaining agreement that relate to the procedures for providing equal employment opportunity, rating performance, and filling positions within the Agency. He noted that those procedures had been followed by the ranking committee when the list of the four qualified applicants was reduced to three applicants on the basis of the objective standard of years of experience. The Arbitrator found, however, that thereafter the Agency failed to use objective standards in making the final selection. He stated that although the Regional Director applied selection criteria contained in the parties' agreement such as knowledge, skills, abilities, experience, performance, and potential, "the Regional Director failed to identify any objective standard for eliminating and selecting candidates." Award at 20. The Arbitrator found that in making his recommendation for the selection of the selectee, the Regional Director "made a subjective recommendation" and "failed to adopt any objective standards describing the process of selecting from among the three (3) 'Best Qualified' candidates." Id. at 21. The Arbitrator concluded that the higher-level Agency review of the selection and resulting appointment of the selectee applicant to the supervisory attorney position was also based on "subjective determinations." Id. at 22.
The Arbitrator next addressed the McDonnell Douglas arguments and noted the parties' agreement that the grievant had met the first criterion--a prima facie showing of discrimination--set forth in that decision. The Arbitrator stated that once the grievant established the prima facie showing of discrimination, the Agency became "obligated to articulate some legitimate nondiscriminatory reason" for not selecting the grievant. Id. The Arbitrator found that "the Agency has offered the subjective opinions of the Regional Director and his superiors as the reason for rejecting the [grievant] and selecting [the selectee]." Id. at 23. The Arbitrator ruled that such reasons for nonselection were not sufficient under McDonnell Douglas because that decision "relies on the principle that subjective opinions include permissible and impermissible grounds for employment decisions and, therefore, constitute discriminatory violations." Id. at 25. The Arbitrator stated that "McDonnell Douglas permits the inference of discrimination once a claimant is proven qualified." Id.
The Arbitrator found that the Regional Director and his superiors at the Agency's headquarters, in making a selection from three best-qualified, unranked candidates, failed to "articulate any objective reason(s) for selecting [the selectee] over the [g]rievant[,]" and "could not articulate any objective process for selecting a candidate from the 'Best Qualified' list." Id. at 28.
The Arbitrator rejected the Union's contention that the Agency's affirmative action plan mandated the selection of the grievant. The Arbitrator noted that "[t]he breach of an affirmative action plan is not a per se violation of Title VII [of the Civil Rights Act of 1964]." Id. at 29 (citing Liao v. Tennessee Valley Authority, 867 F.2d 1366 (11th Cir. 1989), cert. denied, 494 U.S. 1078 (1990). He also rejected the Agency's claim that objective criteria had been used in the selection process because the Regional Director relied on the selected candidate's performance appraisals in making the selection. The Arbitrator conceded that if performance had been the stated basis for making the selection, that would have been an acceptable objective factor. However, he found that performance was not a stated selection factor and concluded that "the Regional Director's analysis [of performance] was an after the fact personal assessment, a subjective view of the candidates." Id. at 32.
The Arbitrator held that the appropriate remedy in this case was to require the Agency "to present and articulate objective reason(s) describing the process of selecting from the 'Best Qualified' list. Once these objective reason(s) are forthcoming, the denied candidates may attempt to show these reasons are a mere pretext to conceal discrimination by showing they are disparate treatment." Id. The Arbitrator added that "the burden of proof remains on the candidates to prove the objective reason(s) are a pretext." Id. at 33. The Arbitrator also held that the other male candidate could "initiate a new grievance contesting these objective reason(s) as a pretext." Id. The Arbitrator made the following award:
The [g]rievance is hereby sustained, in part, in accordance with the opinion. The Agency shall develop, articulate and present objective reason(s) describing a process for selecting appointees from the "Best Qualified" list. The Agency shall apply the reasoning in this selection process to the three (3) candidates on the "Best Qualified" list in this case and select the same or another candidate. Any candidate denied a promotion under this process may contest the process or its application. Such [g]rievant(s) continue to have the burden of proof. If the Agency fails to present these objective reason(s) describing the selection process in writing to the Union's representative within sixty (60) days following the date of this award, the [g]rievant shall be appointed as [s]upervisory [a]ttorney. This Arbitrator hereby reserves jurisdiction in the event a dispute arises out of or relates to the implementation of this award.
Id. at 34.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law because the Arbitrator failed to order the Agency to promote the grievant. The Union maintains that under the law set forth in McDonnell Douglas and Burdine, the grievant was entitled to the promotion to supervisory attorney once the Arbitrator found that the Agency failed to rebut the grievant's prima facie case of discrimination. The Union notes that the parties agreed that the grievant had established a prima facie case of discrimination and that the Arbitrator "specifically held that the [A]gency failed to articulate legitimate, nondiscriminatory reasons for its nonselection of [the grievant]." Union's Exceptions at 10. The Union contends that the Arbitrator ordered an improper remedy when he required the Agency to develop objective reasons for making a selection from the three original candidates. The Union asserts that the Arbitrator should have ordered the Agency to promote the grievant to the position retroactively.
The Union also maintains that the award is contrary to regulations of the Equal Employment Opportunity Commission (EEOC), specifically 29 C.F.R. § 1613.271, which provide for remedial actions for persons found to have been the subject of unlawful discrimination by an agency. The Union contends that "the EEOC has held where there has been a finding that an employee has been subject to discrimination, the remedial aspects of this regulation, [29 C.F.R.] § 1613.271, are mandatory." Id. at 11 (emphasis deleted). The Union asserts that the Arbitrator was obligated to find that the Agency discriminated against the grievant in this case and that the mandatory remedy for the grievant under 29 C.F.R. § 1613.271(c) is retroactive promotion with backpay.(1)
Moreover, the Union contends that the award is deficient because the Arbitrator failed to address the issue of whether the Agency's failure to select the grievant for the position was contrary to the Agency's affirmative action plan and contrary to the parties' collective bargaining agreement. The Union maintains that the affirmative action plan was incorporated into the parties' collective bargaining agreement and the Arbitrator framed as an issue whether the failure to select the grievant constituted a violation of the agreement. The Union contends that the award addressed only whether there was a violation of Title VII of the Civil Rights Act of 1964 and was not responsive to the issue of whether there was a violation of the agreement. The Union maintains that the Arbitrator's award "is not 'directly responsive' to an issue in this case." Id. at 15, citing U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 35 FLRA 1175 (1990).
Finally, the Union contends that the award is deficient because the Arbitrator exceeded his authority by awarding relief to a nongrievant. Citing several Authority decisions in support of its exception, the Union maintains that, by requiring the Agency to apply the new objective selection standards to the three original best-qualified candidates, the award grants relief to the other male candidate who had already filed and withdrawn a grievance over his nonselection.
B. Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because the Arbitrator exceeded his authority by awarding a remedy in the absence of a finding that there had been a violation of the agreement, law or regulation. The Agency asserts that "in order for there to be any remedy there has to be a specific finding of a violation." Agency's Exceptions at 4 (emphasis deleted). According to the Agency, the Arbitrator did not find that the grievant's nonselection constituted a violation of the agreement or law, "but rather, seems to state that he did not like the fact that, as found by him, the Agency used both objective and subjective reasons for its selection of [the selectee] for promotion." Id. at 5.
The Agency also contends that the Arbitrator exceeded his authority by requiring the Agency to develop new selection criteria for filling the supervisory attorney position and, by so doing, "went beyond the scope of the grievance." Id. at 6. The Agency states that the Arbitrator did not find, as the Union requested, that the grievant would have been selected if she had not been female, and the Agency asserts that by ordering the selection process rerun under new criteria, the Arbitrator "is further involving the Union in establishing criteria and thereby is unlawfully requiring [the Agency] to establish new criteria." Id. at 7.
Further, the Agency asserts that the Arbitrator exceeded his authority by awarding the grievant the supervisory attorney position in circumstances where the Arbitrator did not find that the Agency discriminated against the grievant based on her sex. In support of its exception, the Agency cites, among other cases, the Authority's decision in U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1419-21 (1990) (IRS, Helena), in which the Authority discussed the McDonnell Douglas standard. The Agency asserts that in the absence of a finding of an improper action by the Agency resulting in the failure of the grievant to be selected for the supervisory attorney position, "the Arbitrator's [a]ward is contrary to [s]ection 7106(a)(2)(C) of the Statute and the Federal Personnel Manual, Chapter 335, Subchapter 1-4, Requirement 4, and therefore must be overturned." Agency's Exceptions at 11.
The Agency also contends that the award is deficient because the Arbitrator imposed an improper "default penalty" on the Agency by ordering that the grievant be promoted to the supervisory attorney position if the Agency fails to rerun the selection process and apply new objective selection criteria to the original candidates on the best qualified list within 60 days. Id. at 12. The Agency contends that the imposition of such a penalty on the Agency "is inconsistent with the Authority's exclusive jurisdiction to enforce an arbitrator's award following the filing of [u]nfair [l]abor [p]ractice charges." Id. The Agency also contends that ordering a prospective promotion to a position for which there is no vacancy is contrary to management's right under section 7106(b)(1) to determine the number of employees it will assign to an organization. The Agency contends that the award in this regard would dictate to the Agency the number of supervisory attorneys that it must employ in the regional office.
The Agency maintains that the Arbitrator's award is contrary to section 7106(a)(2)(C) of the Statute and FPM Chapter 335, subchapter 1-4, Requirement 4, because the award permits the Agency to consider only the three candidates on the best qualified list when it reruns the selection process. The Agency argues that, by imposing a limitation on the persons that it may consider for promotion to the original three candidates, the award precludes the Agency from making a selection from any other appropriate source or from not making a selection.
The Agency asserts that the award is deficient because the Arbitrator exceeded his authority by giving a remedy to a person other than the grievant in this case. The Agency maintains that the other male candidate had filed and later withdrawn a grievance over his nonselection. Therefore, the Agency argues, the Arbitrator's award allowing any candidate dissatisfied with the outcome of the rerun selection action to file a grievance "has the effect of granting a remedy" to that candidate. Id. at 15. Finally, the Agency asserts that the Arbitrator exceeded his authority by ordering the Agency to "develop 'objective reason(s)' for 'selecting appointees'" in the future. Id. at 16.
C. Union's Opposition
The Union agrees with the Agency that the Arbitrator erred. The Union argues that the award is contrary to law because the Arbitrator failed to make the finding that the grievant was not selected for the supervisory attorney position for discriminatory reasons and failed to order make-whole relief. The Union repeats its contention that under McDonnell Douglas and Burdine, once the Union presented a prima facie case of discrimination against the grievant, the Agency was required to rebut the presumption of discrimination with "legitimate, nondiscriminatory reasons for its actions." Union's Opposition at 5, citing McDonnell Douglas, 411 U.S. at 802. Citing Guthrie v. Tifco Industries, 941 F.2d 374 (5th Cir. 1991), the Union asserts that "the Agency has failed to rebut a prima facie case of sex discrimination, therefore, a judgment of discrimination must follow." Id. at 6. The Union argues that "[u]nder Title VII precedent, once a finding of discrimination is made, which should have been done here, a make-whole remedy must be ordered." Id. at 6-7.
The Union denies that the Arbitrator erred by ordering the grievant promoted in the event the new criteria were not developed and applied within a specified time period. The Union contends that the Arbitrator's order that the grievant be promoted after 60 days was not a penalty but, rather, an "alternative remedy." Id. at 11. However, the Union continues to maintain that the award is deficient because the Arbitrator failed to find that the Agency discriminated against the grievant and failed to order the grievant promoted as a remedy.
In response to the Agency's contention that the Arbitrator exceeded his authority by ordering the grievant promoted to a supervisory attorney position even though there is no vacant supervisory attorney position available, the Union asserts that the Agency's objection is "specious" because in a discrimination case, "[g]ranting a make-whole remedy is not dependent upon there being a vacant position. To the contrary, a make-whole remedy is mandatory." Id. at 12 (emphasis in original). The Union denies that granting a retroactive promotion in this case would be contrary to section 7106(b)(1) of the Statute and asserts that a make-whole remedy is required by EEOC regulations, particularly 29 C.F.R. § 1613.271(c).
The Union disputes the Agency's claim that the award limiting the rerunning of the selection action to the three original candidates is contrary to management's right under section 7106(a)(2)(C) to select from any appropriate source when making promotions. The Union contends that the Arbitrator ordered only that the selection process be rerun from the point at which the discrimination occurred and asserts that the Agency's exception in this regard is inconsistent with the Agency's exception that the Arbitrator exceeded his authority by awarding relief to nongrievants. According to the Union, in this exception the Agency argues that the Arbitrator "unduly limited the field of consideration," whereas in its other exception the Agency argues that the Arbitrator "made the area of consideration too wide." Id. at 14.
As to the Agency's exception that the award improperly awards relief to the other male candidate, a nongrievant, the Union agrees with the Agency's position that the Arbitrator exceeded his authority in that regard.
IV. Analysis and Conclusions
We conclude that the Arbitrator erred, as a matter of law, by finding that the reasons offered by the Agency for its selection action did not set forth a legitimate, nondiscriminatory reason for the Agency's decision under the standards set forth in McDonnell Douglas. Further, the Arbitrator did not make a finding as to whether the reasons proffered by the Agency for its selection decision were pretextual. Consequently, the award is deficient and will be set aside and the case remanded to the parties for appropriate action in accordance with this decision.
In McDonnell Douglas, "the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in Title VII cases alleging discriminatory treatment." Parker v. Department of Housing and Urban Development, 891 F.2d 316, 320 (D.C. Cir. 1989) (Parker). We will examine the Arbitrator's award in this case to determine whether the Arbitrator properly applied the McDonnell Douglas analytical standard. See IRS, Helena, 37 FLRA at 1419-21.
Under McDonnell Douglas and its progeny, an employee establishes a prima facie case of discrimination when the employee shows that: (1) the employee is a member of a protected class; (2) the employee is qualified for the position; and (3) someone of equal or lesser qualifications who is not a member of the protected class is selected for the position. IRS, Helena, 37 FLRA at 1420. Once a prima facie showing of discrimination is made, the burden then shifts to the employer "to articulate some legitimate nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. If the employer then articulates a legitimate nondiscriminatory reason for not selecting the employee, the employee must "be afforded a fair opportunity to show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." Id. at 804.
In Burdine, the Supreme Court discussed and further explained its McDonnell Douglas decision. With regard to the burden on an employer in Title VII discrimination cases to offer a legitimate, nondiscriminatory reason for its actions, the Court held that the employer "need not persuade the court that it was actually motivated by the proffered reasons, but it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the [employee]." Burdine, 450 U.S. at 248. The Court noted that it had "stated consistently that the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Id. at 257.
In applying the McDonnell Douglas standard in this case, the Arbitrator noted that the parties agreed that "a prima facie showing of discrimination has been made . . . ." Award at 22. The Arbitrator next held that, under McDonnell Douglas, the Agency was "obligated to articulate some legitimate nondiscriminatory reason" for not selecting the grievant for the position. Id. He stated that the Agency had only "offered the subjective opinions of the Regional Director and his superiors as the reason" for its decision. Id. at 23. He found that "[n]either the Regional Director nor his superiors articulated any objective reason(s)" for their decision and "[t]hey could not articulate any objective process for selecting a candidate from the 'Best Qualified' list." Id. at 28. The Arbitrator ruled that a subjective reason for the Agency's decision "does not pass muster under McDonnell Douglas[,]" and concluded that the Agency had failed to meet its burden of producing a legitimate, nondiscriminatory reason for not selecting the grievant. Id. at 32.
However, the Supreme Court requires only that, in order to rebut a prima facie showing of discrimination, an employer "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus[,]" and the employer's "explanation of its legitimate reasons must be clear and reasonably specific." Burdine, 450 U.S. at 257, 258. The Court also has held that "it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as [sex]." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).
The Arbitrator improperly rejected the Agency's reasons for its selection of the selectee in this case on the ground that those reasons were subjective. However, we find that the Agency offered legitimate, nondiscriminatory reasons for its selection decision under the analytical framework discussed in the cases cited above. According to the Agency, its selection decision was based on the assessment of the comparative qualifications of the three applicants by the Regional Director and other Agency officials. The Regional Director stated that he "considered the knowledge, skills and abilities of the applicants, the quality and scope of the applicants' job experience and performance and the potential of the applicants." Award, Appendix B at 1. In particular, he noted that the selectee had received higher performance ratings than the grievant on the critical elements of timeliness and quality of work and that the selectee had "constantly demonstrated superior knowledge and ability to perform the technical aspects of a supervisory attorney's duties." Id. In forwarding the Regional Director's recommendation to the General Counsel of the NLRB, the Assistant to the General Counsel and the Deputy to the Assistant General Counsel stated that "based on [the applicants'] appraisals and [the Regional Director's] recommendation, we agree that [the selectee] should be selected for the supervisory position." Id., Appendix C at 3.
We find that the Agency offered legitimate, nondiscriminatory reasons for its decision under McDonnell Douglas. In meeting the second prong of the McDonnell Douglas test, "the bare articulation of a legitimate nondiscriminatory explanation generally suffices to undermine" a complainant's prima facie case. Segar v. Smith, 738 F.2d 1249, 1269 (D.C. Cir