46:1032(93)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE Council 215 - - 1992 FLRAdec AR - - v46 p1032



[ v46 p1032 ]
46:1032(93)AR
The decision of the Authority follows:


46 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

(Union)

0-AR-2308

_____

DECISION

December 30, 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 M. David Vaughn filed by 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator awarded priority consideration to a grievant who alleged that she was discriminated against in a selection action based on her Union activities as well as her race and sex. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a GS-12 Paralegal Specialist, applied for promotion to one of three vacant GS-13 Social Insurance Policy Analyst positions. Initially, after rating and ranking candidates for the position, the grievant was not among those employees rated best qualified (BQ) for the positions and was not included on the BQ list forwarded to the selecting official. In particular, only applicants with 95 or more points, as determined by the rating and ranking panel, were included in the BQ list. The grievant received 94 points. Shortly thereafter, through settlement of a separate grievance protesting her performance appraisal, the grievant's overall performance rating was raised and, as a result, it was determined that, if the revised appraisal had been considered initially, the grievant would have received sufficient points to be included on the BQ list.

The grievant then requested priority consideration for future vacancies. The Agency refused, however, because the Agency asserted that the BQ list previously forwarded to the selecting official had been amended to include the grievant's name and that she had been properly considered for the positions. The Union filed a grievance alleging that the Agency's actions in amending the BQ list and in refusing to grant the grievant priority consideration violated the merit promotion plan and the parties' agreement and resulted from discrimination on the basis of Union activity, race, and sex. As a remedy, the Union requested that the grievant be retroactively promoted with backpay.

When the matter was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

Did the Agency discriminate against and/or interfere with [the grievant]'s promotional opportunities because she engaged in activities protected by the Statute and National Agreement and/or because she is a white female, especially in regard to Vacancy Announcement OHA-91-8, Social Insurance Policy Analyst, GS-105-13, three (3) vacancies? If so, what is the relief?

Award at 1.

Applying the Authority's decision in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Arbitrator stated the following:

I conclude that the Union established a prima facie case that a motivating factor in the Agency's decision was discrimination against [the grievant] on the basis of protected activity. I conclude, further, that the Agency failed to demonstrate that there was legitimate justification for its action or that the same action would have been taken even in the absence of protected activity. To the contrary, I am persuaded that the manner in which it proceeded to amend the [BQ list] . . . was not for legitimate reasons. But for [the grievant's] protected activity, I am not persuaded that the Agency would have raced to amend the [l]ist as it did.

Award at 20. The Arbitrator also concluded, noting that the parties' agreement obligated the Agency to give "special consideration" to applicants, including white females, whose selection would reduce underrepresentation in certain positions, that the Agency failed to satisfy its obligation and "interfered with [the grievant's] promotional opportunity based on her sex." Id. at 21.

With regard to the remedy, the Arbitrator denied the Union's request that the grievant be retroactively promoted with backpay:

I am not persuaded that is the proper reconciliation of her rights; the requested remedy presupposes that she would have been selected for one of the three positions from the applicants on the BQ list. There is not, however, any evidence that was the case. Indeed, the facts simply indicate that [the grievant] was one of a number of applicants on the BQ list and that other applicants were selected.

Accordingly, the Arbitrator awarded the grievant priority consideration pursuant to Article 26, section 8, of the parties' agreement.(*)

III. Positions of the Parties

A. Union's Exceptions

The Union asserts that the award is contrary to law and regulation. Specifically, the Union contends that, by failing to grant the grievant a retroactive promotion with backpay, the award is inconsistent with Letterkenny, the Back Pay Act, decisions of the U.S. Supreme Court, and 29 C.F.R. § 1613.271. In addition, the Union argues that the award of priority consideration does not draw its essence from the agreement. The Union contends that the purpose of priority consideration, as provided in Article 26, section 8, "is to provide relief to an employee for a procedural, regulatory or program violation in connection with the promotional process" and that an act of discrimination cannot be interpreted as such a violation. Exceptions at 16.

B. Agency's Opposition

The Agency asserts that the award does not violate applicable law or regulation and that it draws its essence from the parties' agreement.

IV. Analysis and Conclusions

A. Letterkenny

In Letterkenny, the Authority addressed the analytical framework to be applied in cases alleging violation of section 7116(a)(2) of the Statute. The Authority stated, among other things, that it is necessary to establish in such cases that the affected employee was engaged in activity protected by the Statute and that such activity was a motivating factor in the agency's treatment of the employee. The Authority also stated that, even if these elements are established, an agency will not be found to have violated the Statute if the agency demonstrates that there was a legitimate justification for its action and that the same action would have been taken in the absence of protected activity. See generally id. at 117-23. The Authority concluded that the respondent in Letterkenny discriminated against an employee because of his union activities in violation of section 7116(a)(1) and (2) of the Statute and that, based on the record, the respondent's unlawful action "directly resulted in the failure to promote" the employee. Id. at 127. In particular, the Authority found that because, in the absence of the violation, the affected employee "would have been selected[]" for promotion, a retroactive promotion with backpay was "compelled[.]" Id. Accordingly, the Authority directed the respondent to retroactively promote the employee and provide him backpay.

In this case, by contrast, the Arbitrator specifically found no evidence that the Agency's actions regarding the grievant's application "'directly resulted in the denial of a promotion'" to the grievant. Award at 22. Nothing in Letterkenny establishes that, in such circumstances, a retroactive promotion is required to remedy an Agency's unlawful discrimination. Accordingly, the Union has not shown that, by refusing to grant the grievant a retroactive promotion, the award conflicts with Letterkenny. We conclude that the Union's assertion to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence before him and his conclusions based thereon, and provides no basis for finding the award deficient.

B. Back Pay Act

For an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) an aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal of or reduction in the grievant's pay, allowances, or differentials; and (3) but for such action the grievant would not have suffered the withdrawal or reduction. See National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206, 210 (1990). See also Letterkenny, 35 FLRA at 127.

In this case, the Arbitrator concluded that the Agency violated the parties' agreement. A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action, within the meaning of the Back Pay Act. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1347 (1991). However, as discussed above, the Arbitrator expressly refused to find a direct connection between the Agency's violation of the parties' agreement and the grievant's nonselection for promotion. As there is no direct connection between the Agency's violation of the parties' agreement and the grievant's failure to receive a promotion, we conclude that the Arbitrator's refusal to award backpay is consistent with the Back Pay Act. See, for example, American Federation of Government Employees, Local 12 and United States Department of Labor, 32 FLRA 771, 774-75 (1988).

C. Unlawful Discrimination

We reject the Union's arguments that the Arbitrator's failure to award the grievant a retroactive promotion with backpay is inconsistent with the Supreme Court's decisions in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Burdine). In McDonnell Douglas, 411 U.S. at 252, the Supreme Court "set forth the basic allocation of burdens and order of presentation of proof" in cases alleging discrimination under Title VII of the Civil Rights Act of 1964, and in Burdine the Court discussed McDonnell Douglas.

In the case now before us, there is no contention that, in resolving the Union's allegations that the Agency unlawfully discriminated against the grievant based on Union activity, race, and sex, the Arbitrator applied improper burdens of proof. Instead, the Union contends that the Arbitrator's remedy is inconsistent with McDonnell Douglas and Burdine. However, neither decision dictates remedies for unlawful discrimination or provides a basis for concluding that the Arbitrator was required to award a retroactive promotion in this case.

We also reject the Union's assertion that the award is contrary to 29 C.F.R. § 1613.271, which sets forth certain remedies, including retroactive promotion with backpay, which an agency may take to remedy unlawful discrimination. The regulation does not require particular remedies and expressly provides that remedial action "need not be limited to [such] actions[.]" 29 C.F.R. § 1613.271(c). Consequently, we conclude that the Arbitrator was not required under that regulation to award the grievant a retroactive promotion.

D. Essence of the Agreement

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Departm