Social Security Administration, Office of Hearings and Appeals, Paducah, Kentucky (Agency) and American Federation of Government, Employees, Local 3627 (Union)

[ v58 p124 ]

58 FLRA No. 23

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
PADUCAH, KENTUCKY
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3627
(Union)

0-AR-3484

_____

DECISION

September 30, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members  [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin filed by the Agency under § 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 grievant filed a grievance disputing her failure to be promoted. The Arbitrator sustained the grievance and ordered that one of the employees selected for the position be removed from the position and that the grievant be retroactively promoted to the position. We conclude that the promotion order is deficient.

II.     Background and Arbitrator's Award

      The grievant applied for promotion to one of two GS-13 senior attorney positions. The grievant was on a list of bargaining unit candidates referred to the selecting official for consideration under Article 26, Section 7B of the parties' collective bargaining agreement. [n2]  She was not selected for either of the positions. Instead, the selecting official selected two non-bargaining unit employees. The grievant filed a grievance claiming that her failure to be selected violated Section 7B.

      The Arbitrator first determined that the selecting official had failed to consider the internal unit candidates for 10 working days, in violation of Section 7B. In addition, the Arbitrator ruled that the application of one of the nonunit employees selected for the position was untimely.

      As a remedy, without any additional elaboration, the Arbitrator ordered the Agency to remove the employee whose application was untimely from the senior attorney position and to promote the grievant to the position retroactively with backpay and benefits.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency does not except to the Arbitrator's determination that the selecting official violated Article 26, Section 7B of the parties' agreement by failing to first consider internal candidates for 10 days. Instead, the Agency contends that the remedy ordered by the Arbitrator is deficient on several grounds.

      The Agency contends that the order to vacate the selection of the applicant whose application was untimely is contrary to law, rule or regulation because the Arbitrator failed to find that the selected applicant could not have been selected. In support of this claim, the Agency cites the award of another arbitrator and Authority precedent. The Agency also contends that the order fails to draw its essence from the agreement because it ignores provisions of Article 26, which pertain to priority consideration as a remedy. [n3] 

      Further, the Agency contends that the order to retroactively promote the grievant with backpay is contrary to the Back Pay Act and fails to draw its essence from the agreement. The Agency argues that the order is contrary to the Back Pay Act because the Arbitrator failed to find a direct causal connection between the violation of the agreement and the grievant's failure to be promoted. The Agency also contends that the order of retroactive promotion fails to draw its essence from the priority consideration provisions of Article 26. [ v58 p125 ]

B.     Union's Opposition

      The Union contends that the Agency's exceptions should be denied. The Union argues that the Arbitrator made the findings necessary to support his orders to vacate the one selection action and retroactively promote the grievant.

IV.     Analysis and Conclusions

A.     The order to vacate the one selection action is not deficient.

      The Agency has failed to establish that this order is contrary to any law, rule, or regulation. The Authority cases on which the Agency relies are all based on the corrective action provisions of Federal Personnel Manual (FPM) chapter 335, appendix A, section A-4b. However, we note that the FPM was abolished in 1994 and that the provisions set forth in section A-4b have not been codified elsewhere.

      The events that gave rise to the grievance in this case occurred in 2000. In view of the abolishment of the FPM in 1994, section A-4b and Authority cases applying that section are no longer applicable. See Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla., 55 FLRA 834, 836 (1999); accord United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion, and Repair, Newport News, Va., 56 FLRA 339, 342 (2000). As the Agency cites no other law, rule, or regulation and as arbitration awards are not precedential, see, e.g., AFGE Local 2280, 51 FLRA 620, 624 (1995), the Agency provides no basis for finding the ordered removal of one of the selected applicants deficient, as alleged. Accordingly, we deny this exception.

      In resolving exceptions which contend that an award fails to draw its essence from the collective bargaining agreement, we apply the deferential standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., Soc. Sec. Admin., Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573 (1990)). Under this standard, we will find that an award fails to draw its essence from the agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement so as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See id.

      In terms of this case, the Agency's claim is that the Arbitrator has disregarded the agreement by failing to allow the disputed selection action to stand. However, the Agency fails to establish that these provisions precluded the Arbitrator from vacating the selection action. See id. (Authority denied similar claim by the Agency that priority consideration provisions of Article 26 precluded the arbitrator's choice of remedy). Accordingly, we deny the Agency's exception.

B.     The award of a retroactive promotion with backpay is deficient.

      The Agency contends that to the extent that the Arbitrator has awarded a retroactive promotion with backpay, the award is contrary to the Back Pay Act. When a party's exception disputes an award's consistency with law, we review the question of law raised by the award and the exception de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995).

      An award of a retroactive promotion with backpay by an arbitrator is authorized under the Back Pay Act, 5 U.S.C. § 5596, only when: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in a loss of pay, allowances, or differentials by the employees. See, e.g., United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000). In determining whether an award of backpay is deficient, we examine whether there has been an unjustified or unwarranted personnel action and whether there is a causal connection between the unwarranted personnel action and the loss of pay, allowances, or differentials. See id. With respect to the requirement of a causal connection, we examine whether the arbitrator has found that but for the unwarranted action, the loss of pay, allowances, or differentials would not have occurred. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998) (an examination of whether a pay loss would have occurred but for the unwarranted action amplifies the causal connection requirement of the Act).

      We conclude that the award of backpay is deficient because it is contrary to the Back Pay Act. The award does not establish that the grievant would have been selected for promotion if the Agency had considered the internal applicants as required by Section 7B.

      Although the violation of the collective bargaining agreement constitutes the requisite unjustified or unwarranted personnel action, the Arbitrator made no finding that but for the Agency's failure to follow Section 7B, the grievant would have been selected for promotion. In [ v58 p126 ] addition, the required causal connection is not implicit from the findings of the Arbitrator or the record before the Authority. Consequently, contrary to the claim of the Union, nothing in the Arbitrator's findings or the record supports a causal connection between the violation of Section 7B and the grievant's failure to be promoted. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla., 54 FLRA 609, 614 (1998) (SSA) (arbitrator's award did not reflect any connection between the failure to follow promotion procedures and the failure of the grievant to be selected for promotion). Therefore, to the extent that the Arbitrator awarded a retroactive promotion with backpay, the award is deficient as contrary to the Back Pay Act, and we will strike the order that the grievant be promoted. See, e.g., United States Dep't of the Army, Army Missile Command, Multiple Launch Rocket Sys. Project Office, Redstone, Ala., 56 FLRA 388, 391 (2000) (Army Missile Command). [n4] 

      The Agency has not excepted to the Arbitrator's finding that it violated Section 7B by failing to provide the grievant a full 10 days of first consideration. This violation remains unaffected by striking the order of promotion and warrants an appropriate remedy because the violation of Section 7B personally aggrieved the grievant, and we have struck the only individual relief that the Arbitrator awarded the grievant for the violation. We note that the ordered removal of one of the selected employees is unrelated to the violation of Section 7B.

      In some cases in which the Authority has upheld a contract violation but found the remedy deficient, the Authority has remanded the awards to the parties. See, e.g., United States Dep't of Justice, Fed. Bur. of Prisons, Mgmt. & Specialty Training Ctr., Aurora, Colo. 56 FLRA 943 (2000); Army Missile Command, 56 FLRA at 391; SSA, 54 FLRA 609. In other cases, the Authority has set aside deficient awards without remanding them to the parties. See, e.g., United States Dep't of Health and Human Services, Soc. Sec. Admin., San Juan, Puerto Rico, 46 FLRA 1134, 1141-43 (1993). However, in the circumstances presented here --where a provision in the parties' agreement explicitly sets forth a remedy for the particular matter at issue -- the Authority has modified the arbitrator's award to provide the remedy set forth in the parties' agreement. See United States Dep't of Health and Human Services, Family Support Admin., Washington, D.C., 42 FLRA 347, 360 (1991) (Family Support Admin.).

      In Family Support Admin., the Authority upheld an award finding that the grievant was not given the appropriate consideration for a vacancy as required by the parties' agreement, but set aside the remedy award of retroactive promotion with backpay as contrary to the Back Pay Act. To remedy the underlying contract violation, the Authority modified the award to grant the grievant priority consideration for the next appropriate vacancy for which she was qualified "in accordance with the parties' collective bargaining agreement." Id. at 361. In that case, the parties' agreement explicitly provided that an employee who was improperly excluded from a best qualified list from which a selection was made will receive priority consideration for the next appropriate vacancy for which the employee is qualified. Id. at 360.

      We find, consistent with Family Support Admin., that modifying the award in this case would provide an appropriate remedy for the violation of the agreement. As noted previously, the Arbitrator found that the Agency violated Article 26, Section 7B of the parties' agreement by failing to consider internal unit candidates, including the grievant, for the announced vacancies for 10 working days before considering non-unit candidates. In the exceptions to the award, and the opposition, both the Agency and the Union cite the same text of the parties' agreement as establishing priority consideration as an appropriate remedy. As set forth in the appendix, that language provides that:

If the action taken to correct an erroneous promotion was to require that the position be vacated, employees who were not promoted or given proper consideration because of the violation (that is, employees in the best-qualified group who were not selected or employees who should have been in this [the] group but were not) will be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action.

Exceptions at 3, Opposition at 2.

      Consistent with this negotiated provision, an order that the grievant be given priority consideration for filling the vacated position will effectuate the parties' intent that the grievant "be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action." In these circumstances, we find no reason to remand this case to the parties. [ v58 p127 ]

V.     Decision

      The award of retroactive promotion with backpay is set aside. The award is modified to grant the grievant priority consideration for the next appropriate vacancy in accordance with Article 26, Section 7B.2 of the parties' agreement. The Agency's exceptions regarding the order vacating the selection action are denied.


Appendix

      The priority consideration provisions of Article 26, Section 7B of the parties' agreement provide as follows:

B.     Eligibility. The following employees will receive priority consideration in accordance with the procedures set forth.
     1.     Where the erroneous selection was allowed to stand, those employees who were not properly considered (as identified below) because of the violation will receive priority consideration. An employee is entitled to only one priority consideration for noncompetitive promotion for each instance in which he/she was previously denied proper consideration.
a.     Those excluded from a well qualified list.
b.       Those on an improperly established well qualified list.
     2.     If the action taken to correct an erroneous promotion was to require that the position be vacated, employees who were not promoted or given proper consideration because of the violation (that is, employees in the well-qualified group who were not selected or employees who should have been in this group but were not) will be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action.

Concurring Opinion of Member Pope

      I agree with the majority's decision, but write separately to underscore my position that the decision to fashion and substitute a remedy in this case is limited to the unique circumstances presented here.

      Where the Authority upholds a contract violation, but finds the remedy deficient, it consistently has remanded the award to the parties. See United States DOJ, FBOP, Mgmt. & Specialty Training Ctr., Aurora, Colo., 56 FLRA 943 (2000); United States Dep't of the Army, Army Missile Command, Multiple Launch Rocket Sys. Project Office, Redstone, Ala., 56 FLRA 388, 391 (2000); Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla, 54 FLRA 609 (1998). Remanding such awards to the parties is consistent with the Authority's statutory function of reviewing arbitrator's awards, and with the principle that the Authority must not usurp arbitrators' roles in interpreting and applying collective bargaining agreements. However, in the limited circumstances presented here -- where a provision in the parties' agreement explicitly sets forth a remedy for the particular matter at issue and where the parties agree that that provision applies -- I agree that precedent provides an exception to the usual requirement for a remand, and permits the Authority to modify an arbitrator's award to provide the remedy set forth in the parties' agreement. See United States Dep't of HHS, Family Support Admin., Wash., D.C., 42 FLRA 347, 360 (1991).



Footnote # 1 for 58 FLRA No. 23

   Member Pope's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 23

   Article 26, Section 7B provides: "For a period of 10 workdays prior t