48:0047(5)AR - - Naval Air Station Miramar, San Diego, CA and AFGE, Local 3723 - - 1993 FLRAdec AR - - v48 p47



[ v48 p47 ]
48:0047(5)AR
The decision of the Authority follows:


48 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NAVAL AIR STATION MIRAMAR

SAN DIEGO, CALIFORNIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3723

(Union)

0-AR-2416

_____

DECISION

August 6, 1993

_____

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. Meiners 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 sustained a grievance contesting the nonselection of the grievant for a promotion. The Arbitrator granted the grievant the promotion, retroactively, with backpay and benefits.

For the following reasons, we conclude that the Agency fails to establish that the award is contrary to section 7106(a)(2)(C) of the Statute or the Back Pay Act, 5 U.S.C. § 5596, and we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant applied for a promotion to the position of Fuel Distribution System Worker Supervisor. After evaluating all the applicants, the advisory panel, which served as the rating panel, listed the selected employee as the highest of the five candidates; the grievant was rated second highest. Based on the panel's recommendation, the position was awarded to the selected employee. A grievance was filed contesting the selection action. The grievance was not resolved and was submitted to arbitration.

The parties stipulated to the following issue before the Arbitrator:

Was [the grievant] deprived of a promotion based on a failure of the Agency to follow NASMIRAMARINST 12335.3(b)?

If so, what is the remedy?

Award at 1.(1)

The Arbitrator found that because the selected employee admitted that he had executed his application after the closing date of the vacancy announcement, his application should not have been considered. The Arbitrator further found that:

Had [the selected employee's application] not been considered, the evidence indicates that the grievant would have been the highest rated qualified applicant for the job. The selection was for the highest rated. Thus, the grievant, not [the selected employee], should have received the promotion.

Id. at 2.

Accordingly, the Arbitrator concluded that the grievance should be granted and the grievant should be made whole. The Arbitrator ordered the retroactive promotion of the grievant to the date that the promotion was erroneously awarded to the selected employee, with retroactive pay and benefits.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award is deficient because it violates management's right under section 7106(a)(2)(C) of the Statute to select from among properly ranked and certified candidates or from any other appropriate source.

The Agency notes that the Authority has held that 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 or from any other appropriate source. The Agency acknowledges that the Authority has upheld arbitration awards that directed that a specific individual be selected for or promoted to a position where (1) the award results from the enforcement of an arrangement by the parties; or (2) the arbitrator determines that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be selected or promoted. The Agency contends that the first situation is not applicable to this case because the Arbitrator did not rely on any provision of the parties' agreement.

As to the other circumstance where the Authority will enforce such an award, the Agency contends that the Arbitrator failed to make the required determination that an improper Agency action directly resulted in the failure of the employee to be promoted. The Agency argues that although the Arbitrator found that the Agency committed an improper action by considering the selected employee's application and subsequently selecting that individual, the Arbitrator never made the determination that the grievant would have been selected if he had been the highest ranked applicant.(2) The Agency concedes that if the selected employee had not been considered, the grievant would have been the highest rated qualified applicant for the job, but asserts that the Arbitrator made no finding, implicit or explicit, that the grievant would have been selected if the selected employee had been disqualified. The Agency maintains that although "the grievant might have been selected from the group of the four remaining candidates . . . management would have had complete discretion to select any one of the four remaining candidates or management might have decided not to select any of the candidates . . . ." Exceptions at 5. The Agency argues that the only attempt by the Arbitrator to explain his award directing the grievant's promotion were "two rather cryptic sentences[:] 'The selection was for the highest rated' [and] 'Thus, the grievant, not [the selected employee], should have received the promotion.'" Id. at 4. The Agency asserts that these statements cannot be interpreted as meeting the required finding that the improper Agency action directly resulted in the failure of the grievant to be selected. The Agency argues that the "closest" the Arbitrator comes to making the required finding "that the grievant would have been selected" was his statement that "the grievant should have been promoted." Id. at 5 (emphasis in original).

The Union contends that it is implicit from the record and explicit from the Arbitrator's award that the grievant would have been promoted to the position, but for the Agency's action, which the Arbitrator determined was improper.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to management's right to select under 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. When an arbitrator is not enforcing an arrangement, management's right to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds a direct connection between improper agency action and the agency's failure to select a specific employee for promotion. For example, Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 443 (1992). The Agency contends that the Arbitrator failed to find a direct connection between the Agency's improper consideration of the selected employee's application and the Agency's failure to select the grievant for promotion. We disagree.

We analyze arbitrators' awards of retroactive promotions with respect to section 7106(a)(2)(C) in the same manner as we would review such awards of retroactive promotions with backpay under the Back Pay Act. Id. Thus, we will review these awards for evidence of a finding by the arbitrator of a causal connection between an unwarranted agency personnel action and an agency's failure to promote an employee and not for a specific recitation of certain words and phrases. Id.

In this case, we find that the Arbitrator made the required finding of a direct connection between the grievant's failure to be selected for promotion and the Agency's improper consideration of the selected employee's untimely application. The Arbitrator specifically found that "[t]he selection was for the highest rated." Award at 2. The Arbitrator further found, as conceded by the Agency, that the grievant was the second highest rated applicant. Finally, the Arbitrator specifically found that the grievant should have received the promotion. Therefore, the Arbitrator made the required causal connection that the grievant, being the next highest rated applicant, should have received the promotion upon the disqualification of the selected employee. In this regard, we reject the Agency's contention that the requisite finding was not made because the Arbitrator stated that the grievant "should," rather than "would," have received the promotion. Accordingly, we will deny the Agency's exception.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award does not satisfy the requirement of the Back Pay Act that an arbitrator must find that the grievant would have been selected "but for" the agency's "unjustified or unwarranted" personnel action in order to award backpay. Exceptions at 7. The Agency concedes that the Arbitrator did determine that the Agency committed an unwarranted personnel action by considering the selected employee's application. However, the Agency argues that the Arbitrator "never cited any evidence which might have led him to believe that the grievant would have been selected if the selectee had not been considered." Id. The Agency argues that the Arbitrator never made a specific finding, "and it is not implicit from the record," that the grievant would have been selected "but for" the Agency's action. Id. at 7-8. Accordingly, the Agency contends that the award conflicts with the Back Pay Act.

The Union contends that the Agency's exception should be denied because the Arbitrator found that: (1) the evidence indicated that the grievant would have been the highest qualified applicant for the job; (2) the selection was for the highest rated; and (3) the Agency's improper action directly resulted in the grievant's failure to be promoted.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act.

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, 517 (1991). The Authority reviews these awards for evidence of a finding by the arbitrator of a causal connection between an unwarranted action and an employee's loss of pay and not for a specific recitation of certain words and phrases, such as "but for." Obviously, if an arbitrator makes a finding of a causal connection in the exact words that the Authority has used to state and set forth this requirement of the Back Pay Act, the requirement of the Act would clearly be satisfied. But the absence of such language will not be dispositive if the requisite finding of a causal connection is otherwise apparent. Id. at 518.

In our view, the Arbitrator's award in this case satisfies the requirements of the Back Pay Act. The Arbitrator found that the grievant was affected by an unjustified or unwarranted personnel action when he specifically found that the Agency improperly considered the selected employee's application. Furthermore, it is not disputed that the grievant's failure to be promoted resulted in a loss of pay. Finally, as we found above, the Arbitrator made the finding of a direct connection between the unwarranted personnel action and the grievant's failure to be promoted. Accordingly,