File 2: Opinion of Chairman Cabaniss
[ v58 p744 ]
Concurring opinion of Chairman Cabaniss:
While I agree with the majority as to the outcome in this case, I write separately to discuss the analysis relied on by the majority to resolve certain matters at issue here. For purposes of the 5 U.S.C. § 2302(b)(6) analysis, for example, I would not downplay the relative importance or legality of a grievant receiving priority consideration by noting that priority consideration does not mandate that an individual be selected, and that an agency is not precluded from considering other candidates in the event that no one is selected through the priority consideration process: those considerations have no bearing on whether or not priority consideration provides an unlawful preference or advantage. As it is possible for an arbitrator to legally require an agency to promote a grievant, there is no dispositive impact on the resolution of this 5 U.S.C. § 2302(b)(6) claim from the fact that the Arbitrator did not order the grievant to be promoted. See, e.g., Social Security Admin., Woodlawn, Md., 54 FLRA 1570, 1578 (1998) (SSA) (arbitral remedy of retroactive promotion upheld as not violative of agency right to select). Priority consideration is not an unlawful preference, without regard to whether or not selection is mandated.
Adzell (the Merit Systems Protection Board decision cited to by the majority) makes reference to Perry v. Dep't of the Army, 992 F.2d 1575, 1579-80 (Fed. Cir. 1993) (Perry). In Perry, the court faced an agency declaring that priority consideration [n1] meant only that an employee had to be referred to the selecting official before anyone else. In finding priority consideration to be something more, although not a guarantee of promotion or that an explanation for non-selection had to be provided by the employer, the court noted that priority consideration had to be "...consideration that precedes that of other candidates and that is `real, actual, genuine, and not feigned.' See Black's Law Dictionary 160 (5th ed. 1979)." Id. at 1579. In so stating, I believe it fairly clear that the court envisioned priority consideration as more than the ephemeral benefit that clearly is "authorized by law, rule, or regulation" to quote 5 U.S.C. § 2302(b)(6).
And, consistent therewith, I would find that the proper granting of a contractually mandated priority consideration in these circumstances does not "willfully obstruct" other employees in violation of 5 U.S.C. § 2302(b)(4).
I also believe, contrary to the majority, that the award in this case sufficiently presents an issue involving the demotion of the improperly selected employees such that our decision should address that issue on the merits. In addition to expressly vacating the selection actions at issue here, the Arbitrator expressly identified the fact that the promotion process used to make the contested selections was flawed, and twice mentions that the improperly selected employees would be demoted as a result thereof. Given that the Union does not dispute the Agency's assertion of that demotion has to take place (although the Union does dispute the Agency assertion that this part of the award is improper), I would find that the demotion issue is properly before the Authority as a part of this award. However, such a remedy would still appear to be within the province of an arbitrator to order so long as the demotion was consistent with a reconstruction of what the Agency would have done had it not violated the agreement. SSA. Therefore, while the ultimate resolution of these issues would be the same, I believe we are req