United States, Department of the Army, Army Missile Command, Army Communications Command Agency, Redstone Arsenal, Alabama (Agency) and American Federation of Government Employees, Local 1858 (Union)
[ v59 p154 ]
59 FLRA No. 30
DEPARTMENT OF THE ARMY
ARMY MISSILE COMMAND
ARMY COMMUNICATIONS COMMAND AGENCY
REDSTONE ARSENAL, ALABAMA
OF GOVERNMENT EMPLOYEES
September 22, 2003
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 Robert G. Bowling 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 Arbitrator found that the grievant did not receive fair and equal treatment in her application for a temporary vacancy and directed that she be selected for a GS-13 position for 1 year. For the reasons discussed below, we find the award deficient and set it aside.
II. Background and Arbitrator's Award
The Agency posted an announcement for a 1-year temporary GS-13 position. The grievant was not selected for the position. She filed a grievance alleging that she had not been given fair and equal consideration for the position and that she was discriminated against based on race and gender.
The grievance was not resolved and was submitted to arbitration. As relevant here, the Arbitrator stated the question before him as follows:
Was there `preselection' by the employer in [the selectee's] appointment to the GS 301-13, Job No. 99D180DW Job Announcement?
Award at 7. [n2]
The Arbitrator found that there was preselection as well as favoritism towards the selectee on the part of the grievant's immediate supervisor, and that the grievant did not receive fair and equal treatment on her job bid. In this regard, the Arbitrator cited an Agency regulation, MICOM 690-28.11, which provides at § 4.f. that officials "must avoid practices which would indicate that any person was preselected for a position filled under competitive promotion procedures, or that a promotion was based on favoritism." Id. at 6 (emphasis added by Arbitrator). [n3] Based on testimony, the Arbitrator found that it was "obvious that [the supervisor] was possibly pruning [the selectee] for a GS-13 appointment" by giving him high-level assignments. Id. at 7.
In addition, citing MICOM 690-12.5.B(1), the Arbitrator stated that "[t]here appear[ed] to be a duty" on the part of the supervisor to announce vacancies within his own department and to announce the filling of such vacancies. Id. The Arbitrator found that the supervisor did not announce either the vacancy or its filling to the grievant.
In sum, while stating that he was not questioning the selectee's qualifications, the Arbitrator found that "[u]nder the circumstances there are irregularities on how the appointment was made that certainly paint a picture of favoritism and preselection on [the supervisor's] part." Id. As a remedy, the Arbitrator awarded the grievant a GS-301-13 job rating for a period of 1 year, and directed that she commence her employment at that level no later than January 3, 2003, or at such time as the parties may mutually agree to begin. [ v59 p155 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award violates management's right to select under § 7106(a)(2)(C) of the Statute. Citing United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the Agency claims that by directing the Agency to select the grievant for a 1-year GS-301-13 position, the award affects management's right to select, and does not meet either prong I or prong II of BEP.
As to prong I, the Agency contends that the award does not provide a remedy for a violation of applicable law or a contract provision negotiated pursuant to § 7106(b) of the Statute. The Agency asserts that the Arbitrator did not cite any law or contract provision, and that the only regulations that he discussed do not constitute either applicable laws within the meaning of § 7106(a)(2) of the Statute or contract provisions negotiated pursuant to § 7106(b) of the Statute.
Further, the Agency contends that even if prong I of BEP were satisfied, the award is deficient under prong II of BEP because the remedy is not a reconstruction of what management would have done had it not violated that regulatory provision. The Agency states that it would have distributed work assignments evenly among various GS-12 employees, including the grievant, so that the selectee and the grievant would have received "an equal amount of specialized experience with neither candidate demonstrating clear superiority over the other." Exceptions at 5. The Agency asserts that the selecting official would then have been free to select the selectee, the grievant, or any of the other 89 candidates on the Best Qualified list. The Agency argues that since the Arbitrator failed to evaluate the other 89 candidates, there is no basis for finding that the grievant would have been selected.
B. Union's Opposition
The Union claims that the Agency failed to raise a management rights violation at the arbitration hearing. The Union also claims that "Army Regulation 690-300, Chapter 335, and MICOMR/AMCOMR 690-28 support correction [sic] action on preselection" and "are taken from 5 Code of Federal Regulations (CFR) 335." Opposition at 3. The Union further argues that the Arbitrator was enforcing contractual and regulatory provisions and, as such, the award does not violate management's right to select. According to the Union, the Agency is challenging the Arbitrator's interpretation of the negotiated agreement and the regulations. The Union asserts that the Arbitrator's interpretation is consistent with law and regulation and draws its essence from the parties' agreement.
IV. Analysis and Conclusions
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in BEP, 53 FLRA at 151-54. [n4] Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. 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, 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.
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 § 7106(a)(2)(C) of the Statute. See AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (Authority held that an award which placed the grievant in a position affected management's right to select); United States Dep't of the Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash., 55 FLRA 884, 887 (1999) (Authority found that [ v59 p156 ] an award ordering retroactive promotion of the grievant into a specified position affected management's right to select). Here, the award orders the Agency to place the grievant in a GS-13 position for 1 year. Consequently, the award affects management's right to select.
Applying the BEP analysis, we further find that the award fails to satisfy prong I because there is no evidence or assertion that the Arbitrator found a violation of either applicable law or a contract provision negotiated pursuant to § 7106(b) of the Statute. Although the Arbitrator cited two Agency regulations, he made no express finding that the Agency's action violated either regulation. Therefore, the Arbitrator's citation of the two Agency regulations does not satisfy prong I of BEP. See United States Dep't of Veterans Affairs Med. Ctr., Northampton, Mass., 53 FLRA 1743, 1746 (1998) (Authority found that award did not satisfy prong I of BEP where the arbitrator found "defects" in the agency's rating process but did not explicitly link his findings with the violation of any law or contract provision).
Moreover, even if we were to conclude that the Arbitrator implicitly found a violation of either or both of the Agency's regulations, there is no evidence or assertion that either regulation constitutes an applicable law within the meaning of § 7106(a)(2) of the Statute. The Union states, without elaboration, that MICOM 690-28 and another Agency regulation not addressed by the Arbitrator were "taken from 5 [C.F.R.] 335." Opposition at 3. This claim does not assert, let alone demonstrate, that the Agency regulations constitute applicable laws. Furthermore, there is nothing in the record that would lead us to conclude that the Agency regulations constitute "applicable laws" under the criteria established by the Authority.
The Authority has found that a regulation is an "applicable law" where that regulation has "the force and effect of law." NTEU, 42 FLRA 377, 391-92 (1991), enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993). Regulations are found to have the force and effect of law when they: (1) affect individual rights and obligations; (2) were promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; and (3) were promulgated in conformance with any procedural requirements imposed by Congress. Id. at 392-93. There is no basis in the record on which to conclude that MICOM 690-28.11 or 690-12.5 satisfies these requirements. See United States Dep't of the Army, United States Army Signal Ctr. & Ft. Gordon, Ft. Gordon, Ga., 58 FLRA 511, 514 (2003) (Member Pope concurring) (Authority set aside an award which failed to satisfy prong I of BEP because, in relevant part, there was no assertion or factual finding to show that the award was enforcing any law).
Further, we note that although the Union claims in its opposition that the award was enforcing provisions of the parties' agreement, there is no evidence that this argument was made to the Arbitrator or that the Arbitrator found any violation of the parties' agreement. Therefore, nothing in the record supports a conclusion that the award enforces a collective bargaining agreement provision negotiated pursuant to § 7106(b) of the Statute.
Accordingly, the award fails to satisfy prong I of BEP because it does not enforce an applicable law within the meaning of § 7106(a)(2) or a collective bargaining agreement provision negotiated pursuant to § 7106(b) of the Statute. Therefore, the award is set aside. [n5] Id.
The award is set aside. [ v59 p157 ]
MICOM 690-28.11.4.f states:
All officials concerned must avoid practices which would indicate that any person was preselected for a position filled under competitive promotion procedures, or that a promotion was based on favoritism. Among such practices are misassignments, excessive noncompetitive details, temporary promotions that create impressions of preselections, changes in qualification requirements, last minute additions to Referral and Selection.
MICOM 690-12.5.B(1) states in pertinent part:
[s]upervisors are responsible for informing employees where position vacancy announcements and bulletins are posted and where a copy of this regulation is maintained.
Award at 7.
Dissenting Opinion of Member Pope:
I agree with the majority's decision to find that the award is contrary to the Agency's right to assign work. However, I reach this conclusion for different reasons than those stated by the majority. Moreover, I would remand -- not set aside -- the award. Therefore, I dissent.
First, I disagree with the majority that the Arbitrator "made no express finding" that the Agency violated MICOM 690.12.5.B(1) and MICOM 690-28.11. Majority Opinion at 6. In this regard, MICOM 690.12.5.B(1) provides that "supervisors are responsible for informing employees where position vacancy announcements and bulletins are posted and where a copy of this regulation is maintained." Award at 7. The Arbitrator noted the express wording of this regulation and concluded that "the [g]rievant was not made aware that there was a vacancy within her own department . . . ." Id. Similarly, MICOM 690-28.11 provides that "[a]ll officials concerned must avoid practices which would indicate that any person was preselected for a position filled under competitive promotion procedures, or that a promotion was based on favoritism." Id. at 6. The Arbitrator both framed a question before him as "[w]as there `preselection' by the employer[,]" and made an express finding that "[y]es, [t]here was preselection as well as favoritism on the part of . . . the [g]rievant's immediate supervisor." Id. at 7. I question how these arbitral findings that the Agency violated the regulations could be clearer.
Second, I disagree with the majority that "there is no evidence or assertion that either regulation constitutes an applicable law within the meaning of § 7106(a)(2) of the Statute." Majority Opinion at 6. In my view, the Union effectively raised the applicable law issue by asserting that "the case law cited by the Agency and the alleged violation of management's rights do not apply" because the Arbitrator was enforcing regulations that were "taken from 5 [C.F.R. Pt.] 335." Opposition at 3. Consequently, this case is distinguishable from United States Dep't of the Army, United States Army Signal Center and Fort Gordon, Fort Gordon, Ga., 58 FLRA 511 (2003) (Member Pope concurring), where there was "no assertion or factual findings . . . that the [a]rbitrator's award was enforcing any law . . . ." Id. at 514. Moreover, the award clearly identifies the wording of regulations enforced by the Arbitrator, which distinguishes it from the award in United States Dep't of Veterans Affairs Med. Ctr., Northampton, Mass., 53 FLRA 1743 (1998), where the arbitrator failed to cite any law, rule, or regulation. Put simply, the majority's finding that "[t]here is no basis in the record" to determine whether MICOM 690-28.11 and/or 690-12.5 are applicable laws is unfounded.
In determining whether the regulations constitute applicable laws, I note that, in United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690 (1999) (citing NTEU, 42 FLRA 377, 391-92 (1991)) (Dep't of the Navy), the Authority found that an agency's internal regulation was an applicable law within the meaning of the Statute. The Authority held that a regulation is an applicable law where the regulation has the force and effect of law, as demonstrated by findings that the regulation: (1) affects individual rights and obligations; (2) was promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; and (3) was promulgated in conformance with any procedural requirements imposed by Congress. See id. (citing Hamlet v. United States, 63 F.3d 1097, 1103-05 (Fed. Cir. 1995)) (other citations omitted).
With respect to the first requirement, the Authority has held that an agency's regulation affects individual rights and obligations if it is mandatory, and it establishes the obligations of the agency and the rights of employees. See id. The regulations enforced by the Arbitrator in this case use the terms "must" and "are responsible for," indicating that the regulations are mandatory. Cf. Griessenauer v. Dep't of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985) (finding FPM's use of term "should" indicated that provision was precatory, not mandatory). In my view, these regulations obligate Agency supervisors to inform employees of vacancy announcements and to refrain from preselection and favoritism in making selections for promotions. Such requirements clearly affect the rights of employees.
With respect to the second requirement, the Office of Personnel Management (OPM) is expressly authorized by Congress to "prescribe rules governing the competitive service." 5 U.S.C. § 3302. Consistent with its authority in this regard, the OPM has promulgated rules governing agency promotion programs, 5 C.F.R. Pt. 335, from which the Union claims -- and the Agency does not dispute -- the Agency's regulations are derived. See Opposition at 3. As relevant here, 5 C.F.R. § 335.103(b) requires agencies to use merit promotion systems "based solely on job-related criteria" and to establish "procedures for promoting employees which are based on merit and are available in writing to candidates." Consistent with these requirements, MICOM 690-12.5.B(1) requires supervisors to notify employees where position vacancy announcements are posted and where a copy of the regulation is maintained, and MICOM 690-28.11.4.f provides that supervisors are to avoid preselection and favoritism when promoting [ v59 p158 ] employees. Thus, the Agency's regulations are consistent with, and derived from, these authorized, OPM-imposed requirements.
Finally, with respect to the third requirement, the Authority explained in Dep't of the Navy that although some agency regulations must be published in the Federal Register for notice and comment, 5 U.S.C. § 553(a)(2) "excepts agency rulemaking from the notice and comment requirement to the extent that it involves `a matter relating to agency management or personnel[.]'" 55 FLRA at 691 (quoting 5 U.S.C. § 553(a)(2)). The Agency's regulations enforced by the Arbitrator in this case govern employee promotions, which concern "personnel" matters within the meaning of 5 U.S.C. § 553(a)(2). See, e.g., Stewart v. Smith, 673 F.2d 485, 496 (D.C. Cir. 1982) (finding that hiring standards are personnel matters under § 553(a)(2)). Moreover, although 5 C.F.R. § 335.103 requires agencies to establish merit promotion systems that meet certain substantive requirements, it does not establish procedural requirements for promulgating regulations establishing such systems. Cf. 5 C.F.R. Pt. 430 (requiring agencies to establish appraisal systems and submit descriptions of them to the OPM for approval).
Based on the foregoing, I would conclude that MICOM 690-28.11 and 690-12.5 satisfy the relevant requirements and, as a result, constitute applicable laws within the meaning of the Statute. As such, the award's enforcement of the regulations satisfies prong I of the BEP test.
Nevertheless, I would find that the award is deficient under prong II of BEP because it does not reconstruct what the Agency would have done had it not violated the regulations. In this regard, the Arbitrator found that the Agency violated the regulations by failing to inform the grievant of the vacancy within her department, by failing to afford the grievant fair and equal consideration for the job, and by filling the position based on preselection and favoritism. To remedy these violations, the Arbitrator ordered the Agency to promote the grievant. However, there is no indication in the record, and the Arbitrator did not find, that in the absence of the Agency's violation of the regulations, the Agency would have selected the grievant. In fact, the Arbitrator stated that he was "not questioning the qualifications" of the selectee, and expressly concluded that the grievant was not discriminated against.
In these circumstances, the award ordering the Agency to promote the grievant does not satisfy prong II of BEP and is deficient. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37 (1998). However, as only the remedy is deficient --and the underlying violations of the Agency's regulations remain -- the award should be remanded to the parties for further action. See, e.g., id.
For the foregoing reasons, I dissent.