49:0957(91)AR - - AFGE, Local 31 and VA Medical Center, Wade Park Unit, Cleveland, OH - - 1994 FLRAdec AR - - v49 p957



[ v49 p957 ]
49:0957(91)AR
The decision of the Authority follows:


49 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 31

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER, WADE PARK UNIT

CLEVELAND, OHIO

(Agency)

0-AR-2510

_____

DECISION

May 12, 1994

_____

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 Mollie H. Bowers 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.(1)

The Arbitrator found that the person selected to fill a supervisory position was not as well-qualified as one of the grievants and ordered that that grievant be placed in the position with backpay. For the following reasons, we find that the award is deficient as contrary to section 7106(a)(2)(C) of the Statute. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The Agency posted a vacancy announcement for a supervisory corrective therapist position in the Kinesiotherapy Section of Rehabilitation Services at the Agency.(2) Five applicants applied for the position; one applicant withdrew his application. The Agency selected a white male for the position. The Union filed a group grievance on behalf of the remaining three applicants, who are black, alleging that the selection was contrary to the parties' collective bargaining agreement and that the selection was discriminatory and based on preselection. The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as:

Whether the [Agency] violated the Agreement in the selection of [the selectee] instead of one of the [g]rievants for the position of Supervisor, Corrective Therapist, in the Kinesiotherapy Section of the Rehabilitation Medicine Service at the Medical Center?

Award at 2.

The Arbitrator rejected the Union's claims that the grievants were not selected because of discrimination and preselection. The Arbitrator found that the Union had failed to provide sufficient evidence to support those claims.

The Arbitrator set forth various provisions of the parties' agreements, including provisions of Article 34, Promotion and Placement, of the parties' master agreement and the merit promotion provisions of the parties' supplemental agreement.(3) The Arbitrator then stated that "the record does not sustain the [Agency's] position that it selected the most qualified applicant as required by law and the applicable terms of the Agreement between the parties." Id. at 22. In examining the selection process itself, the Arbitrator noted that the selectee was a physical therapist in the Agency's Recreation Service and the three grievants were kinesiotherapists. The Arbitrator noted that the selective factors listed in the vacancy announcement were as follows:

1. Ability to effectively coordinate and integrate the work of subordinate kinesiotherapists.

2. Knowledge of kinesiotherapy principles and techniques including aquatics, tests and measures, amputee gait training, geriatrics and wellness education.

3. Ability to assess and/or modify services using total quality management principles with a goal of continuous quality improvement.

4. Ability to communicate effectively at all levels and foster an attitude of response[ive] service to internal and external customers.

Id. at 7.

The Arbitrator was not persuaded by the testimony of the selecting official that the first and third selective factors were the most important and that the second factor, which encompassed kinesiotherapy experience, was the least important. To the contrary, the Arbitrator stated that "the importance of substantive knowledge/experience in kinesiotherapy is both implicit and/or explicit in all of the four rating factors." Id. at 23. The Arbitrator further stated:

[T]here is nothing in the language of the posting announcement supporting the notion that managerial/supervisory experience of any nature divorced from the area of kinesiotherapy was sufficient to constitute grounds for being the most qualified for any or all of the rating factors. Yet, that is apparently precisely how the selection in this case was made, and precisely why that selection is inconsistent with the posted job duties and rating factors.

Id. at 24.

The Arbitrator noted that the qualifications of the female grievant were clearly superior to those of the two male grievants and that the record indicated that the female grievant would have been selected if the selectee had not been selected. For that reason, the Arbitrator focused her award on a comparison between the female grievant and the selectee. The Arbitrator found that the female grievant "was unquestionably the most senior and knowledgeable of all the applicants in kinesiotherapy" and that she had the most relevant supervisory experience in kinesiotherapy. Id. at 26.  In this regard, the Arbitrator noted that the female grievant had worked closely with the previous supervisor and had observed and assisted him in supervisory duties for more than a year, which provided experience that "was unique among all the applicants . . . ." Id. The Arbitrator also found that the female grievant's testimony as to her experience established that she had performed managerial and administrative duties that "clearly are relevant for purposes of the abilities sought in rating factors one and three." Id. at 27.

The Arbitrator rejected the Agency's argument that the female grievant had not properly submitted a required Employee Supplemental Qualifications Statement setting forth how she met the selective factors for the vacant position. The Arbitrator noted that although "both the announcement and the supplemental statement forms indicate that the statement will be treated as the primary source document used for evaluating candidates[,]" the grievant's failure to properly complete the supplemental statement could have been overlooked by the selecting official and the information could have been submitted at the interview stage without impropriety. Id. at 27-28. The Arbitrator also cited the female grievant's recent performance appraisals and the favorable recommendation of the grievant's supervisor as supporting the finding that the female grievant was the most qualified applicant for the position.

As her award, the Arbitrator denied the part of the grievance alleging discrimination and preselection. The Arbitrator ordered that the female grievant, as the most qualified candidate, be placed in the position with backpay to the date the original selection action was effective.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to sections 7106(a)(2)(A) and 7106(a)(2)(C) of the Statute because it denies management the right to select and promote when filling positions. The Agency maintains that the Arbitrator found no violation of any law, regulation, or contract provision and, consequently, had no basis upon which to order the grievant selected. The Agency asserts that management had the right to establish the qualifications for the vacant position and that the selecting official properly determined the weights and relative importance assigned to the four selective factors that were contained in the vacancy announcement. The Agency maintains that the Arbitrator's analysis of the rating procedure and her finding that a background in kinesiotherapy should have been the most important factor "usurps the selecting officials' determination of the qualifications, skills, and abilities needed to perform the work of the position and to determine which candidate possessed such requirements, in violation of management rights." Exceptions at 6.

The Agency also asserts that the Arbitrator exceeded her authority by addressing an issue that was not presented by the parties in the grievance. The Agency maintains that the issues concerned whether there was discrimination or preselection and the Arbitrator addressed the qualifications of the applicants. Further, the Agency maintains that the grievance involved three grievants and the Arbitrator provided a remedy limited to only one of the three grievants.

Finally, the Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement and that the award is based on nonfacts.

B. The Union

The Union contends that the Arbitrator did not exceed her authority and maintains that the award addresses the issue before the Arbitrator. The Union also contends that the award draws its essence from the collective bargaining agreement and denies that the award is based on nonfacts. According to the Union, the Agency is merely disagreeing with the Arbitrator's interpretation and application of the collective bargaining agreement and with her reasoning and conclusions.

IV. Analysis and Conclusions

We conclude that the award is deficient because it is contrary to the Statute. Specifically, we find 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. 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 Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employees Union, Local 250, 42 FLRA 347, 356 (1991) (Family Support Administration); U.S. Department of Veterans Affairs, Regional Office, Waco, Texas and American Federation of Government Employees, Local 2571, 41 FLRA 681, 685 (1991).

Based on the record before us in this case, we conclude that the award ordering the grievant retroactively promoted does not constitute the enforcement of, or the remedy for a violation of, an arrangement in the parties' master or supplemental agreements within the meaning of Customs Service. See U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1142 (1993) (SSA, San Juan) (Customs Service did not apply because there was no evidence that the arbitrator enforced an arrangement); Family Support Administration, 42 FLRA at 357 (award ordering grievant promoted retroactively did 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). Although the Arbitrator quoted various provisions of the parties' agreements, including portions of Article 34 of the parties' master agreement and Article XII of the parties' supplemental agreement, it is not apparent that those agreement provisions constitute arrangements for employees adversely affected by the exercise of management's right to make selections for positions. In particular, we note that Article 34, Section 1 of the master agreement provides only that the purpose of the placement procedures is to locate the best-qualified candidates for vacant positions. There is nothing in that provision or in the remainder of the portion of Article 34 quoted by the Arbitrator that constitutes an arrangement for employees adversely affected by the exercise of management's right to select for positions under section 7106(a)(2)(C) of the Statute.

Similarly, it is not apparent that the Arbitrator enforced any provision in Article XII of the parties' supplemental agreement that constitutes an arrangement for employees adversely affected by the exercise of management's right to select. See U.S. Department of Defense, National Guard Bureau, Washington Army National Guard, Tacoma, Washington and National Association of Government Employees, Sub-Local R12-122, 45 FLRA 782, 788 (1992) (Customs Service did not apply where it was not apparent that provision of a collective bargaining agreement enforced by an arbitrator constituted an arrangement for employees adversely affected by the exercise of a management right). Further, we note that neither the parties nor the Arbitrator referred to provisions of the parties' agreements as being appropriate arrangements for employees adversely affected by the exercise of management's rights. See U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035, 1042 n.1 (1991). Consequently, in the absence of the Arbitrator's enforcement of a contractual arrangement, we need not apply the test set forth in Customs Service.

Next, we address the Agency's contentions that the award is inconsistent with management's right under section 7106(a)(2)(C) of the Statute to select employees because the Arbitrator interfered with management's rights to determine the qualifications of positions and to select a qualified candidate for a position. As noted above, section 7106(a)(2)(C) provides that management has the right to select from a group of properly ranked and certified candidates for promotion. In our view, the Agency has established that the award conflicts with management's right to determine the qualifications of the supervisory kinesiotherapist position and to select a properly ranked and certified applicant based on those qualifications.

The Arbitrator rejected the Agency's determination of the relative weights and values assigned to the four selective factors and made her own determination that the position required experience in kinesiotherapy rather than managerial and administrative experience. On that basis, she determined that the grievant was more qualified than the selectee and that the grievant should have been selected. The Arbitrator made no finding that the selectee was not qualified for the position, but found only that he was not the most qualified applicant when applying the selective factors as interpreted by the Arbitrator. We conclude that the Arbitrator's changing of the relative weights of the four selective factors from the weights assigned by management directly interfered with management's right to determine the qualifications for the position and to make a selection from a group of properly qualified applicants pursuant to section 7106(a)(2)(C) of the Statute. See Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 20 (1992) (proposal which limited management's right to determine qualification requirements for a civilian national guard position directly interfered with management's right to select under section 7106(a)(2)(C) of the Statute). Compare U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 48 FLRA 293, 301 (1993) (agency failed to establish that award interfered with management's right to determine qualifications for positions).

Further, we note that when an arbitrator is not enforcing an arrangement, such as in this case, management's right to select employees 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. See Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 443 (1992). In addition, we approach awards of promotions by arbitrators in relation to section 7106(a)(2)(C) in the same manner as awards of retroactive promotions with backpay by arbitrators under the Back Pay Act, 5 U.S.C. § 5596. See id.

In this case, the Arbitrator specified no provision of law or the parties' collective bargaining agreement that required the Agency to give more weight to experience in kinesiotherapy or prohibited the Agency from placing greater emphasis on managerial and administrative skills than on kinesiotherapy experience as a basis for its selection to fill a supervisory position. The Arbitrator expressly found that there was no evidence of discrimination or preselection as alleged by the Union in the grievance. Although the Arbitrator held generally that the Agency failed to show that it had selected the most qualified applicant as required by law and the parties' agreement, the specific ground on which the Arbitrator found that the grievant was entitled to a promotion was her finding that the Agency should have used technical experience and ability in kinesiotherapy as the primary qualification for the supervisory position instead of managerial and supervisory experience and ability. For that reason, the Arbitrator determined that the grievant was better qualified than the selectee and should have been selected. We conclude that the Arbitrator has not set forth a sufficient basis on which to justify an order directing that the grievant be selected for the position. See SSA, San Juan, 46 FLRA at 1143 (arbitrator failed to set forth a sufficient basis on which to order a grievant selected for a position).

Accordingly, we find that the award is deficient as contrary to management's right to select under section 7106(a)(2)(C) of the Statute and must be set aside.

V. Decision

The Arbitrator's award is set aside.(4)

APPENDIX

As relevant to this decision, the Arbitrator quoted the following provisions of Article 34 of the parties' master agreement and Article XII of the parties' supplemental agreement:

Master Agreement

Article 34 - Promotion And Placement

Section 1 - Purpose

The purpose of these placement procedures is to locate the best qualified candidates for vacant positions . . . .

Section 11 - Sources of Information on Candidates

. . . .

C. Supervisory appraisals for promotion must be job-related and will be made on VA Form 5-4667b, Supervisory Appraisal of Employee for Promotion (Specialized Category Appraisal with Narrative). These appraisals will be available for consideration by the rating panel.

Supplemental Agreement

ARTICLE XII - PROMOTIONS

Section 1. Policies Governing Employee Promotions

Policies and procedures for promotion of employees are found in Chapter 335, Part I, VA Personnel Policy Manual MP-5; Chapter 335, Federal Personnel Manual issued by the Civil Service Commission; Chapter 335A, Part I, Hospital Personnel Policies, and the provisions of this agreement. Additional information concerning established policies is found in VA Employee Letter No. 00-69-2.

Section 2. Basis for Promotion or Appointment

It is the policy of the hospital and the Federal service that vacant positions be filled on the basis of merit and fitness. The hospital agrees there will be no discrimination because of race, color, religion, sex, national origin, lawful political affiliation, or because of employee membership or employee organization.

Promotion is one method of filing vacancies and will be used to the maximum extent possible to provide opportunity for employee career advancement and for maximum utilization of employee skills. In the interest of creating a stable work force and provide [sic] greater opportunity for employee advancement, hospital employees will be considered first when promotion announcements are made, and they are among the best available qualified Veterans Administration employees before consideration is given to other qualified applicants. If there are at least three (3) highly qualified employees considered with other qualified employees for promotion but no employee is selected for promotion, the selection official will officially identify the basis for the nonselection.

Both parties agree that employees for whom a vacancy provides promotion opportunity are competing with other qualified applicants who may be ap