54:0142(18)AR - - SSA Branch Office, East Liverpool, OH & AFGE Local 3448 - - 1998 FLRAdec AR - - v54 p142



[ v54 p142 ]
54:0142(18)AR
The decision of the Authority follows:


54 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

BRANCH OFFICE

EAST LIVERPOOL, OHIO

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3448

(Union)

0-AR-2954

_____

DECISION

April 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Elliot I. Beitner 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that the Agency violated the parties' collective bargaining agreement by not properly giving the grievant priority consideration for a position. To remedy this violation, the Arbitrator directed the Agency to select the grievant for the next appropriate vacancy, and to begin paying the grievant at the higher rate of pay no later than 90 days from the date of the award, whether or not the grievant had begun working in a new position ("front pay"). For the reasons explained below, we conclude that the Agency's exceptions to the Arbitrator's determination that the Agency violated the collective bargaining agreement do not establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny these exceptions. However, we conclude that the portion of the award directing front pay is deficient because it is contrary to law and, therefore, we set aside this portion of the award.

II. Background and Arbitrator's Award

In accordance with Article 26, Section 8 of the parties' collective bargaining agreement,(1) the Agency granted the grievant two priority considerations, because it had twice failed to promote her as a result of procedural errors. The grievant used one of these priority considerations when she applied for promotion from service representative to claims representative. When the Agency did not select the grievant for this position, she filed a grievance. The grievance was not resolved, and the parties submitted it to arbitration, where the Arbitrator framed the issue as follows:

Did the employer violate Article 26, Section 8, by failing to give the grievant bona fide consideration for noncompetitive selection? If so, what should the remedy be?

Award at 8.

The Arbitrator interpreted Article 26, Section 8, to require the selecting official to give the grievant "bona fide" consideration, and to select the grievant if she met the minimum requirements for the position. Id. at 17. Relying on this interpretation, the Arbitrator found that the Agency did not demonstrate that the grievant failed to meet the minimum requirements. Accordingly, the Arbitrator concluded that the selecting official violated Article 26, Section 8 by failing to give the grievant priority consideration. To remedy the Agency's violation of the parties' agreement, the Arbitrator required the Agency to hire the grievant for the next available claims representative vacancy in her area, and to pay the grievant "at the higher claims representative rate no later than 90 days from the date of [the] award." Id. at 21. The Arbitrator expressly declined to award back pay. Id.

III. Positions of the Parties

A. The Agency

The Agency excepts to the Arbitrator's award on four grounds.

First, the Agency asserts that the Arbitrator found incorrectly that the Agency failed to give the grievant bona fide consideration for the position for which she applied. According to the Agency, the grievant did not meet the minimum requirements for the position. Exceptions at 2.

Second, the Agency contends that the Arbitrator's award fails to draw its essence from the collective bargaining agreement, because the award, by granting a position to the grievant, disregards the "rights of management spelled out in the agreement." Id. at 3.

Third, the Agency asserts that the Arbitrator's award is contrary to law, because by ordering the Agency to promote the grievant, the award violates sections 7106(a)(2)(C) and 7106(b)(1) of the Statute. The Agency contends that the award violates section 7106(a)(2)(C), because it interferes with the Agency's right to make selections from any appropriate source. The Agency supports its position that the award violates section 7106(b)(1) by quoting from SSA I, where the Authority stated:

[W]hen an arbitrator orders an employee prospectively promoted without regard to whether an appropriate vacancy exists and an agency excepts to the award on the basis that the award conflicts with management's right under section 7106(b)(1) to determine the numbers of employees or position[s] assigned to an organizational subdivision, [the Authority] will find that such an award is deficient."

Exceptions at 3-4 (quoting SSA I, 37 FLRA at 825).

Fourth, the Agency claims that the award to increase the grievant's pay after 90 days violates the Back Pay Act. The Agency argues that the Arbitrator may not award the grievant the salary for a position for which the grievant has not been appointed, or for work the grievant has not performed.

B. The Union

The Union asserts that the Authority should dismiss the exceptions, because "[t]he case number is incomplete and wrongly identifies the case as required by 5 U.S.C. 7122." Opposition at 2.

The Union makes three arguments on the merits. First, the Union states that "the award is a plausible interpretation of the agreement." Id. at 3. Second, the Union maintains that the award is not contrary to law. According to the Union, Article 26 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, consistent with the framework set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service).(2) Third, the Union responds to the Agency's argument that the award violates section 7106(b)(1) by asserting that the Agency has misinterpreted the award to require the Agency to create a vacancy for the grievant. The Union asserts that, instead, the award merely requires the Agency to hire the grievant for the next available claims representative vacancy in the Cleveland area.

IV. Analysis and Conclusions

A. The Minor Deficiency in the Agency's Exceptions Does Not Require a Procedural Dismissal

The Authority has declined to dismiss filings on the basis of minor deficiencies where the deficiencies did not impede the opposing party's ability to respond. See, e.g., U.S. Department of the Navy, Naval Audit Service, Southeast Region and National Federation of Federal Employees, 44 FLRA 717, 717 n.1 (1992) (failure to provide opposing party with statement of service was not a basis for dismissing application for review).

Here, the record shows that the Agency timely filed its exceptions along with sufficient supporting documentation. The Union filed its opposition to the exceptions in a timely manner. To the extent that the Agency failed to include the correct docket number and name of the case, there is no indication that these deficiencies impeded the Union's ability to respond. Thus, we do not dismiss the Agency's exceptions on procedural grounds.

B. The Award is not Based on a Nonfact

The Agency asserts that the Arbitrator incorrectly found that the grievant satisfied the minimum requirements for the position. We construe this as an assertion that the Arbitrator based his award on a nonfact.

The Authority has held that to establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

The question of whether the grievant met the minimum requirements for the position was clearly disputed below. Award at 3-7. As such, we conclude that the Agency's assertion provides no basis for finding the award deficient as based on a nonfact.

C. The Award does not Fail to Draw its Essence from the Parties' Agreement

Article 26 of the parties' agreement provides that if there has been a previous failure to properly consider an employee for a position, the Agency will grant the employee a priority consideration for other positions. As interpreted by the Arbitrator, the priority consideration required by the provision requires the Agency to select the employee for a position, if the employee meets the minimum requirements. The Arbitrator concluded that, as the grievant met the minimum requirements for the claims representative position she sought, the selecting official's failure to select the grievant for the position violated Article 26.

The Agency has provided no basis for finding the Arbitrator's interpretation of Article 26 implausible, irrational, or unconnected to the wording of the agreement. Thus, we find that the Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement. See American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA 1518, 1521 (1997).

D. The Award is not Contrary to Law

1. The Award does not Violate Section 7106(a)(2)(C)

In U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP), the Authority set forth the two-prong test by which it will assess arbitration awards "claimed to affect management rights." Id. at 153. Under Prong I, the Authority will determine whether an award enforces "an applicable law or a provision of the parties' collective bargaining agreement on a section 7106(b) matter." Id. Under Prong II, the Authority will uphold an award that reconstructs what management would have done, if management had followed such applicable law or contract provision. Id. at 154.

In SSA I, the Authority concluded that Article 26, Section 8 is an appropriate arrangement under Customs Service. The Authority found that:

It is clear that Article 26, Section 8 constitutes an arrangement for employees adversely affected by management's right to select. Furthermore, the provision as interpreted and applied by the Arbitrator only requires management to select an employee exercising a priority consideration when management determines that the application meets the minimum standards that management has set for adequate performance of the job. Although this interpretation limits management from selecting from any appropriate source in those instances where a qualified employee exercises priority consideration, this interpretation preserves management's right to determine the "minimum standard . . . for adequate performance of the job" and provides "no requirement than [sic] an unqualified employee be promoted under a priority consideration."

Consequently, . . . the provision as interpreted and applied by the Arbitrator clearly does not abrogate the exercise by management of its right to select.

SSA I, 37 FLRA at 822-23 (citations omitted). See also SSA II, 50 FLRA 578, 581-82. Thus, we find that the award satisfies Prong I, because it enforces a provision of the parties' collective bargaining agreement concerning a section 7106(b) matter.

We also conclude that the Arbitrator's award satisfies Prong II. As set forth above, the Arbitrator found that the Agency's failure to select the grievant violated the parties' agreement. To remedy this violation, he ordered the Agency to select the grievant for the next available claims representative vacancy in her area. Thus, the award constitutes a reconstruction of what the Agency would have done if it had not violated the parties' agreement.

We conclude that, as the award satisfies both prongs of BEP, the award is not deficient as contrary to management's right to select.

2. The Award does not Violate Section 7106(b)(1)

In asserting that Article 26, Section 8, as applied by the Arbitrator in this case, violates section 7106(b)(1) of the Statute, the Agency relies on the portion of the decision in SSA I where the Authority found that an award that required promotion of a grievant without regard to whether there was a vacancy conflicted with the agency's right to determine the numbers of employees assigned to an organizational subdivision or work project. However, the award in this case does not require the Agency to promote the grievant without regard to whether there is a vacancy; the award specifically requires the Agency to promote the grievant into the next available vacancy. Thus, the Agency's reliance on SSA I is misplaced. Accordingly, we find that the award is not deficient as contrary to section 7106(b)(1).

E. The Award of Front Pay is Contrary to Law

The Arbitrator did not order the grievant retroactively promoted. In addition, the Arbitrator specifically stated, "No back pay is awarded[.]" Award at 21. Although the Arbitrator did not award back pay, he specifically directed the Agency to select the grievant for the next appropriate vacancy and to pay her at the higher rate beginning no later than 90 days from the date of the award. Thus, the Arbitrator ordered that the grievant be granted higher pay -- front pay -- without regard to whether she is appointed to a position classified at the higher pay rate or is performing duties justifying the higher rate.

The United States is immune from liability for money damages under the doctrine of sovereign immunity. Lane v. Pena, 116 S. Ct. 2092 (1996). Sovereign immunity can be waived by statute, but waiver will be found only if "unequivocally expressed in statutory text[.]" Id. at 2096. Thus, a Federal agency will be subject to a monetary claim only if the statute on which the claim is based unambiguously establishes that it extends to an award of money damages. Id. at 2097; Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), vacating in part 48 FLRA 6 (1993). Therefore, an order requiring an agency to provide front pay must be supported by unambiguous statutory authority.

The Arbitrator did not cite statutory authority for his award of front pay, and no such authority is apparent. Such pay is not authorized by the Back Pay Act. Moreover, absent exceptions not relevant here, an employee is entitled only to the salary of the position to which the individual is appointed. U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1563 (1992) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989); U.S. Department of the Air Force, 88th Air Base Wing, Aeronautical Systems Division, Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333, 52 FLRA 285, 288 (1996). Accordingly, we find that the award of front pay is deficient as contrary to law.

V. Decision

The Agency's exceptions to the portion of the award requiring the Agency to promote the grievant to the next available claims representative position are denied. The portion of the award providing front pay is set aside as contrary to law.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 26, Section 8, entitled "Merit Promotion," states the following in subsection A:

Definition. For the purposes of this article a priority consideration is the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory or program violation.

The Authority has resolved exceptions to arbitration awards considering and applying this contract provision in several prior decisions: See, e.g., Social Security Administration, Mid-Atlantic Program Se