54:1570(135)AR - - SSA, Woodlawn, MD and AFGE Local 1923 - - 1998 FLRAdec AR - - v54 p1570



[ v54 p1570 ]
54:1570(135)AR
The decision of the Authority follows:


54 FLRA No. 135

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

WOODLAWN, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-3072

_____

DECISION

November 30, 1998

_____

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

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Marvin E. Johnson 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 found that the Agency violated Article 26, section 11(C) of the parties' collective bargaining agreement (parties' agreement) by not giving serious consideration to the grievant when making selections to fill three GS-13 Program Analyst (PA) vacancies. To remedy the violation, the Arbitrator directed the Agency to place the grievant in a GS-343-13 PA position with full backpay, and any other attendant benefits, retroactive to the date of the initial selection for the PA position. The Agency concedes its violation of the parties' agreement, and excepts solely to the remedy portion of the Arbitrator's award.

For the following reasons, we conclude that the Arbitrator's award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

This case involved the arbitration of a grievance which alleged that the Agency discriminated against the grievant on the basis of age, and violated Article 26, section 11(C) of the parties' agreement, when the Agency failed to select the grievant for one of three announced PA positions.(1) The issue, as relevant here, was stipulated by the parties as follows:

Did the Agency violate Article 26 of the parties' [a]greement when it did not select the [g]rievant for the GS-13 [PA] position because of grade[-]stagnation; and if so, what shall the remedy be?

Award at 4.

At the time of the grievance, the grievant had been employed with the Agency for 34 years as a Senior Analyst in the Office of Public Service and Operations Support (OPSOS). The grievant applied, and was placed on the Best Qualified (BQ) list, for the open PA positions. The selecting official chose three individuals from the BQ list to fill the positions. At the time of selection, the grievant had been a GS-12 for approximately 27 years. Of the employees selected for the three PA positions, the Union maintains that one selectee in particular (the selectee) was less qualified for the position than the grievant.

After the grievant was notified that she was not selected for one of the PA positions, the grievant sought and received EEO counseling from the Agency. The EEO counseling report recounted that the selecting official contacted the grievant's division director, prior to the selection announcement for the positions, and discussed the selectee and other candidates who were on the BQ list, but did not discuss the grievant. The EEO report also stated that the selecting official never contacted the grievant's first line supervisor to ask about the grievant's qualifications. Additionally, according to the grievant's testimony credited by the Arbitrator, the selecting official told the grievant, at the grievance meeting, that the selecting official had not reviewed the grievant's application when making selections for the PA position. When the grievant failed to reach resolution in the EEO process, she commenced this grievance and arbitration.

Addressing the violation of Article 26 of the parties' agreement, the Arbitrator found that it was "undisputed" that section 11(C) required selecting officials to give "serious consideration" to grade-stagnated candidates.(2) Id. at 11. However, the Arbitrator explained, "it is understood that [Article 26, section 11(C)] does not guarantee that grade-stagnated candidates will be selected for the positions they seek." Id. Nevertheless, the Arbitrator concluded that a "fair reading" of section 11(C) required the selection of the grade-stagnated individual, when she or he is among the candidates on the BQ list and is clearly equally or better qualified than the other applicants. Id.

In his award, the Arbitrator compared with specificity the grievant's qualifications with the selectee's qualifications under the weights and factors used to rate applicants for the BQ list, and the criteria articulated by the selecting official in the EEO counseling report and at the arbitration hearing. Based on this review, the Arbitrator determined that evidence revealed the grievant to be "clearly" and "substantially" more qualified than the selectee for the disputed PA position. Id. at 12, 14-15.

As the Arbitrator found that the grievant was on the BQ list and "substantially more qualified" than the selectee, he reasoned that a presumption was raised that the grievant was not seriously considered. Id. at 14-15. After viewing the record as a whole, including the grievant's testimony and the statements of the selecting official, the Arbitrator found that the selecting official did not seriously consider the grievant for one of the PA positions. In this connection, the Arbitrator noted the Agency's argument that the selecting official could not have selected all of the grade-stagnated candidates, as there were more grade-stagnated candidates than there were open PA positions. However, he found that "no evidence was submitted as to those candidates' respective qualifications, which may not be equal to the [g]rievant's qualifications." Id. at 17. Thus, the Arbitrator explained that "the presence of other grade[-]stagnated candidates on the BQ list does not nullify the conclusion that the [g]rievant was not seriously considered for the position." Id.

Based on his findings, the Arbitrator determined that the Agency violated section 11(C) of the parties' agreement by not giving serious consideration to the grievant when making the PA position selections. Consequently, the Arbitrator concluded that had the grievant's application been given serious consideration, the grievant would have been selected over the selectee on the basis of her grade-stagnation. Accordingly, the Arbitrator granted the grievance and ordered the grievant to be placed in a GS-343-13 PA position with full backpay, and any other attendant benefits, retroactive to the date of the initial selection for the PA position.

III. Positions of the Parties

A. Agency's Exceptions

The Agency articulates three exceptions addressing the remedy dictated in the award.

1. The Arbitrator's award violates section 7106(a) of the Statute.

The Agency submits that the Arbitrator's award requiring the Agency to place the grievant in a PA position interferes with the Agency's section 7106(a)(2)(C) right to select. The Agency asserts that it may only be constrained, consistent with section 7106(a)(2)(C), to select a particular candidate for a retroactive promotion upon proper findings by the Arbitrator. Specifically, the Agency contends that it must retroactively promote the grievant only when "the [a]rbitrator finds that the employee has been affected by [an] improper agency action that has directly resulted in [a] failure of the employee to be promoted when the employee otherwise would have been." Exceptions at 13. In this case, the Agency argues, the Arbitrator did not make these requisite findings.

2. The Arbitrator's award does not draw its essence from the parties' agreement.

The Agency claims that Article 26 of the parties' agreement "specifically provides a remedy for procedural violations: the granting of a priority consideration."(3) Exceptions at 5-6. The Agency argues that its failure to seriously consider the grievant is a procedural violation under the parties' agreement. Thus, the Agency contends that the Arbitrator was not entitled, under the agreement, to order the Agency to place the grievant in a PA position. Furthermore, the Agency argues that "the Arbitrator manifestly disregarded the specific, direct and plausible interpretation of Article 26 directing that the Agency grant the grievant a priority consideration for such procedural violations." Id.

3. The Arbitrator's award violates the Back Pay Act.

The Agency asserts that the remedy directed by the Arbitrator is not appropriate because it does not meet the "but for" requirement of the Back Pay Act. The Agency argues that "there is clearly no way to know that 'but for' the interpretation that not enough serious consideration was given to the grievant, as found by the Arbitrator, that the grievant would certainly have been selected." Id. at 10.

The Agency relies on Authority case law which states that, in cases involving a failure to promote, there must be both a determination that the grievant was affected by an unjustified and unwarranted personnel action, and that the unwarranted action directly resulted in the denial of a promotion that the grievant otherwise would have received. Here, the Agency claims that the Arbitrator "did not expressly find that this unwarranted action resulted in the failure of the grievant to be promoted when she otherwise definitely would have been[.]" Id. at 11. Thus, the Agency asserts that the award is deficient. Accordingly, the Agency requests that the Authority modify the award to direct that the grievant be provided priority consideration.

B. Union's Opposition

The Union asserts that the Arbitrator has great latitude in fashioning remedies. The Union argues that the Arbitrator's award is "soundly reasoned, legally correct, responsive to the issues and fully supported by the evidentiary record." Opposition at 8. Though the Union believes the Agency's exceptions to be without merit and a "mere disagreement" with the Arbitrator's interpretation and application of the parties' agreement, it responds to each exception. Id. at 9.

First, the Union believes that the Agency's section 7106 exception is an effort to relitigate the case. The Union claims that both the priority consideration and serious consideration provisions of Article 26 of the parties' agreement are appropriate arrangements consistent with section 7106(b)(3) of the Statute. The Union states that these arrangements "do not intrude on management's right to determine the minimum qualifications for satisfactory performance of the jobs and do not require that an unqualified employee be promoted." Id. at 6-7.

Second, the Union claims that the Agency's essence exception rests on a bare assertion, as the Agency failed to provide a specific provision from which the award allegedly fails to draw its essence. Addressing the Agency's contention that priority consideration is a "mandatory remedy" when the Agency violates a Merit Promotion provision, the Union argues that the Agency failed to differentiate between procedural, regulatory or program violations and contractual violations under Article 26, section 13 of the parties' agreement. Opposition at 4. The Union claims that procedural violations include, for example, "failure to consider an employee entitled to consideration, selection of an employee not on the BQ list or failure to give the required weight to an evaluation factor prescribed by the Plan." Id. at 4-5. As the Arbitrator stated that the Agency violated the parties' agreement, the Union contends that the Agency's argument is "totally devoid of merit, incongruous and is, transparently, an attempt to relitigate the case." Id. at 5.

Finally, the Union states that the Arbitrator "clearly articulated the findings necessary to trigger relief authorized by the Back Pay Act[.]" Id. Specifically, the Union points out that the Arbitrator stated that the grievant "would have been selected over [the selectee] on the basis of her grade[-]stagnation." Id., quoting Award at 17 (emphasis added in Opposition). Therefore, the Union claims, that since Authority case law does not require "a specific recitation" of the term "but for" in the award, the Arbitrator made the necessary findings under the Back Pay Act. Id. at 6.

IV. Analysis and Conclusions

A. The remedy portion of the award is not contrary to 5 U.S.C. § 7106(a)(2)(C).

The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

The Agency has alleged that the remedy portion of the award violates its management rights under section 7106(a)(2)(C) of the Statute. The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth 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, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. For the reasons that follow, we conclude that even though the award affects management rights, it satisfies both prong I and II of BEP.

1. The Arbitrator's award affects management's rights.

The Authority has held that an award requiring an agency to make an actual selection for an appointment affects management's right to select under section 7106(a)(2)(C) of the Statute. See, e.g., American Federation of Government Employees, Council 220 and Social Security Administration, Region VI, Dallas, Texas, 54 FLRA No. 107, slip op. at 10 (1998) (Authority held that an award which placed the grievant in a position affected management's right to select); 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, 302 (1993) (Authority found that an award ordering retroactive promotion of the grievants affected, but did not interfere with, management's right to select). Here, the award orders the grievant to be placed, retroactively, into a GS-13 PA position. Based on Authority precedent, the award affects management's right to select.

2. The Arbitrator's award satisfies prong I of BEP.

In this case, the Arbitrator directed the Agency to place the grievant in a PA position to remedy the Agency's conceded violation of Article 26, section 11(C) of the parties' agreement.(4) Section 11(C), as interpreted by the Arbitrator, requires the Agency's selecting official to give serious consideration to applicants on the BQ list who have been stagnated in grade. The Arbitrator's interpretation of section 11(C), and his finding that the Agency violated this provision, demonstrates the Arbitrator's intention to enforce a provision in the parties' agreement within the meaning of BEP prong I. As there is no contention that this provision was unenforceable within the meaning of BEP prong I, we will proceed to evaluate the award under prong II. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1429 (1998) (Authority found that there was no contention that the provision at issue was unenforceable); U.S. Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 53 FLRA 1344, 1348 (1998) (Authority found that there was no contention that the provision at issue was unenforceable).

3. The Arbitrator's award satisfies prong II of BEP.

Under prong II, the remedy awarded must reflect a reconstruction of what the agency would have done if management had not violated the agreement provision on a section 7106(b) matter. See BEP, 53 FLRA at 154. Here, the Arbitrator ordered the grievant to be placed in a PA position with full backpay, and any other attendant benefits, retroactive to the date of the initial selection for the PA position.

As previously indicated, the Arbitrator made detailed findings that the grievant was more qualified than the selectee for at least one of the PA positions. Specifically, the Arbitrator found that, had the grievant been given serious consideration under the parties' agreement, "[the grievant] would have been selected over [the selectee]." Award at 17. In this connection, the Arbitrator stated that the presence of other grade-stagnated candidates on the BQ list did not "nullify" the Arbitrator's conclusion that the grievant would have been selected. Id. The Arbitrator determined that "no evidence was submitted as to those candidates' respective qualifications, which may not be equal to the [g]rievant's qualifications." Id. Based on these findings, the Arbitrator concluded that, had the Agency not violated Article 26, section 11(C) of the parties' agreement, the Agency would have selected the grievant over the selectee for the PA position.

We conclude from the foregoing that the award reflects the Arbitrator's reconstruction of what the Agency would have done, absent the Agency's violation of the parties' agreement. See, e.g., U.S. Department of Defense, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 54 FLRA 487, 492-93 (1998). Accordingly, we find that the Agency has not established that the award is deficient under prong II of BEP. In so finding, we conclude that the grievant's retroactive promotion, as ordered by the Arbitrator, was an appropriate remedy for the Agency's violation and is not contrary to management's right to select. Thus, the Agency's exception is denied.

B. The Arbitrator's award draws its essence from the parties' agreement.

The issue before the Arbitrator concerned whether the Agency violated Article 26 of the parties' agreement when it did not select the grievant because of grade-stagnation. The provision addressing grade-stagnation is found in section 11(C). Nonetheless, the Agency argues that the Arbitrator's award did not draw its essence from the agreement, because the proper remedy for the Agency's violation was to grant the grievant priority consideration, as addressed in Article 26, section 13.(5)

To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

Here, the Agency has failed to establish that the Arbitrator's award is implausible, irrational or in manifest disregard of the parties' agreement. The only argument that the Agency makes is that the Agency's failure to seriously consider the grievant under the parties' agreement was a "procedural violation," within the meaning of Article 26, section 13. However, the Arbitrator found that the Agency's failure to seriously consider the grievant under section 11(C) was a violation of the "serious consideration" requirement of the parties' agreement. See Award at 11, 17. Thus, the Agency action in this case was not a procedural violation of the selection process. Section 13 expressly states that it was negotiated to cure procedural violations of the agreement, not violations of substantive rights set forth in the parties' agreement. Therefore, the Arbitrator implicitly determined that section 13 of the parties' agreement did not apply.

Given the Arbitrator's findings, and his ability to reconstruct remedies for agreement violations, the Arbitrator's order that the Agency retroactively promote the grievant with backpay, and other attendant benefits, is not an implausible result under the parties' agreement. See, e.g., American Federation of Government Employees, Local 2006 and Social Security Administration, Philadelphia, Pennsylvania, 54 FLRA 110, 119-20 (1998). Consequently, we find that the Agency has not established that the Arbitrator's award is deficient and deny this exception.

C. The Arbitrator's award does not violate the Back Pay Act.

The Agency also contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, the Arbitrator "did not expressly find that [the Agency's violation of Article 26, section 11(C)] resulted in the failure of the grievant to be promoted when she otherwise definitely would have been[.]" Exceptions at 11. Therefore, the Agency claims that there was "clearly no way to know that 'but for' the [Agency's violation] . . . that the grievant would certainly have been selected." Id. at 10.

Under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials.(6) U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA No. 106, slip op at 9-10 (1998) (HHS).

Here, contrary to the assertions of the Agency, the Arbitrator's explicit findings fulfill the criteria for an award of backpay under the Back Pay Act. With regard to the first requirement, the Arbitrator found that the Agency violated Article 26, section 11(C) of the parties' agreement by not seriously considering the grievant for selection to one of the three available PA positions. This finding represented the Arbitrator's determination that the Agency committed an unwarranted personnel action. As to the second requirement, the Arbitrator found that the unwarranted personnel action resulted in the grievant's nonselection for promotion, and loss of backpay and other attendant benefits. See Award at 17 ("had the [g]rievant's application been given serious consideration, [the grievant] would have been selected over [the selectee]"). See also HHS, 54 FLRA slip op. at 11-12; U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383, 385 (1995). Thus, we find that the award of retroactive promotion with backpay complies with the Back Pay Act. Accordingly, we deny the Agency's exception.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
 

1. In light of his conclusion that the Agency violated the parties' agreement, the Arbitrator found it unnecessary to address the issue of age discrimination. Neither party objected to the Arbitrator's declining to address this issue. As we base our decision on the Agency's contract violation, and as the parties do not dispute the resolution of the age discrimination issue, we will not address this claim further.

2. The text of Article 26, Merit Promotion, section 11, Selection, provides, in pertinent part:

C. If an underrepresentation [sic] is not present, then the selecting official will seriously consider providing upward mobility for those well-qualified candidates who have been stagnated in grade.

The Arbitrator noted that there was not