American Federation of Government Employees, Council 147 (Union) and Social Security Administration (Agency)

[ v59 p864 ]

59 FLRA No. 158

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL 147
(Union)

and

SOCIAL SECURITY ADMINISTRATION
(Agency)

0-AR-3741

_____

DECISION

April 27, 2004

_____

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 an exception to an award of Arbitrator Robert R. Bergeson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      The Arbitrator sustained a grievance, finding that the grievant had not been given "bonafide" priority consideration for a vacant position. The Union claims that the Arbitrator erred in failing to grant a backpay award. For the following reasons, we deny the Union's exception.

II.      Background and Award

      In 1991, the grievant, a contract representative, was not selected for a claims representative position, after having exercised priority consideration for that position. She filed a grievance, which was not resolved. Twelve years later, in 2003, an arbitration hearing was held on the following stipulated issue:

Did the Agency violate the collective bargaining agreement when it did not select [the grievant] for the position of Claims Representative . . . ?  If so, what shall the remedy be?

Award at 3.

      Initially, the Arbitrator rejected the Agency's claim of laches, which was based on the "12-year gap" between the filing of the grievance and "its being moved to arbitration." Id. at 4. While agreeing with the Agency "that the [U]nion has provided no satisfactory explanation for its failure to more expeditiously bring this matter to arbitration," the Arbitrator determined that the Agency failed to establish "how it has been materially prejudiced by such delay." Id. at 5. [n2] 

      As to the merits of the grievance, the Arbitrator made no express finding that the grievant would have been selected for the position had the Agency not violated the agreement. Rather, the Arbitrator agreed with the Agency that "[a] priority consideration is not priority selection." Id. at 5 (emphasis in original).

      Nonetheless, the Arbitrator found that the grievant had not been given "bonafide consideration" for the position, largely because the selecting official relied on a "less than favorable appraisal of her work" which was "contradicted by documentary evidence . . . ." Id. at 7, 8. The Arbitrator concluded that, by this conduct, the Agency violated Article 26, Section 8 of the parties' collective bargaining agreement. [n3] 

      To remedy the violation, the Arbitrator directed the parties to meet for the purpose of "determining the geographical scope of priority consideration rights of the grievant[,]" and ordered that the grievant be offered the first claims representative vacancy in that geographical area. Id. at 10. The Arbitrator denied the Union's request that the grievant be awarded backpay for the difference between her contract representative position and the claims representative position for which she had not been selected 12 years earlier. Noting "the common law rule that one whose contractual rights have been breached is obligated to act so as to mitigate damages[,]" the Arbitrator found that "by all appearances the grievant has sat on her rights" and, as such, that the requested remedy would be "excessive." Id. at 9. [ v59 p865 ]

III.     Positions of the Parties

A.      Union's Exception

      The Union argues that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. Citing a decision of the Merit Systems Protection Board (MSPB) in Green v. United States Postal Service, 57 MSPR 560 (1993) (Green), the Union states that there is no obligation for an employee to mitigate damages under the Back Pay Act. [n4]  Even assuming that such a requirement exists, the Union states that any mitigation "was solely out of the grievant's control." Exception at 4. The Union maintains that the grievant is entitled to an award of backpay because she was affected by an unjustified or unwarranted personnel action that directly resulted in a loss of pay. The Union also states that the Arbitrator's award "that the grievant be awarded the next available Claims Representative vacancy was wholly appropriate." Id.

B.      Agency's Opposition

      The Agency asserts that the Union has not demonstrated any legal basis for overturning the award. In addition, the Agency states that the remedy provided by the Arbitrator -- awarding the grievant the next available claims representative position within an agreed-upon geographical area -- is responsive to the stipulated issue.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by exceptions to an arbitrator's 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union argues that the award is contrary to the Back Pay Act. The Authority has long held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998) (DHHS).

      With regard to the first requirement, a breach of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See GSA, 55 FLRA 493, 496 (1999). An arbitrator's finding of an agreement violation satisfies this requirement. See United States Dep't of Def., Army & Air Force Exch. Serv., Dallas, Tex., 49 FLRA 982, 991-93 (1994). The second part of the Back Pay Act test requires that there be a showing of a causal connection between the unwarranted personnel action and the withdrawal or reduction of a grievant's pay.

      In the case before us, the Arbitrator found that the Agency violated Article 26, Section 8 of the parties' agreement. This contractual violation constitutes an unjustified or unwarranted personnel action. As such, the award satisfies the first requirement under the Back Pay Act.

      However, we find that the award does not satisfy the second requirement of the Back Pay Act as there is no basis on which to find that, but for the Agency's failure to follow the agreement, the grievant suffered a loss of pay, allowances or differentials.

      In this regard, the Arbitrator made no express finding that the grievant would have been selected for the claims representative position had the Agency accorded her priority consideration under the agreement. To the contrary, the Arbitrator found that "priority consideration is not priority selection." Award at 5 (emphasis in original). Moreover, rather than ordering the Agency to vacate the position for which the grievant had applied and to retroactively promote her, the Arbitrator ordered the Agency to offer the grievant "the first claims representative vacancy" within a prescribed geographical area and further explicitly directed that "the grievant is to receive no claims representative pay until that time." Award at 10. [n5]  From these express statements, it is clear that the Arbitrator intended to order only prospective relief to the grievant in this case. Clearly, if the Arbitrator intended to conclude that the Agency would have selected the grievant had she been given bonafide priority consideration, then the Arbitrator could have, and [ v59 p866 ] should have, made that finding explicit. Instead, the Arbitrator made no such explicit finding.

      In addition, the required causal connection is not implicit from the findings of the Arbitrator or the record before the Authority. Although the Arbitrator found a violation of Article 26, Section 8, a finding of a contract violation does not, by itself, establish a causal connection justifying an award of backpay. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124 (2002) (Member Pope concurring) (order of retroactive promotion and backpay set aside where there was no express or implicit finding that the employee would have been selected for promotion); Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla., 54 FLRA 609, 614 (1998) (award of backpay set aside as 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); United States Dep't of Health and Human Servs., Soc. Sec. Admin., Office of Hearings and Appeals, 46 FLRA 1032, 1036 (1992) (arbitrator's refusal to award backpay found consistent with the Back Pay Act as there was no direct connection between the violation of the agreement and the grievant's failure to receive a promotion).

      Although the Union does not rely on the following to support its claim that the Arbitrator erred in failing to award backpay, we note the following statement made by the Arbitrator:

If this were the usual case the grievant might theoretically be entitled to be made whole for lost wages under the Back Pay Act as but for the agency's violation of the grievant's contractual rights she would have received claims representative pay, as opposed to merely being paid as a contract representative.

Award at 9.

      We do not view this comment, when read in the context of the entire award, as providing a sufficient basis on which to conclude that the Arbitrator made an implicit finding that the grievant would have been selected for the claims representative position for which she had applied 12 years earlier. The Arbitrator's statement -- that if this were the usual case the grievant might theoretically be entitled to make whole relief -- is too speculative to establish that, even if the Arbitrator had found this case to be "the usual case," he would necessarily have ordered a backpay remedy. Id. In our view, to read this statement as an implicit causal connection (a claim not advanced by the Union) would constitute too tenuous a connection to satisfy the Back Pay Act's requirements. This is particularly true where, as here, the Arbitrator expressly discussed and awarded the grievant a different remedy of prospective relief and specifically stated that "the grievant is to receive no claims representative pay until" she accepts the first available vacancy. Id. at 10.

      Accordingly, as there is no basis on which to find that, but for the Agency's failure to follow the agreement, the grievant suffered a loss of pay, allowances or differentials, the award does not satisfy the second requirement of the Back Pay Act. In these circumstances, we conclude that the Arbitrator did not err in failing to award the grievant backpay. [n6] 

      In sum, and for the reasons expressed above, we find that the Union has failed to establish that the award is deficient as contrary to the Back Pay Act. Accordingly, we deny the exception. [n7] 


File 1: Authority's Decision in 59 FLRA No. 158
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 158 - Authority's Decision

   Member Pope's dissenting opinion appears at the end of this decision.


Footnote # 2 for 59 FLRA No. 158 - Authority's Decision

   The Agency did not except to the Arbitrator's findings in this regard.


Footnote # 3 for 59 FLRA No. 158 - Authority's Decision

   Article 26, Section 8 provides, in relevant part, as follows:

Section 8-Priority Consideration
For purposes of this article a priority consideration is the bonafide 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.

Award at 3-4.


Footnote # 4 for 59 FLRA No. 158 - Authority's Decision

   The Union cites this case as 93 FMSR 5186. In Green, the MSPB held that a wrongfully terminated employee was not required to seek other employment while pursuing his administrative appeal and, as a consequence, that the employee's backpay award "should not be diminished on the basis of an alleged failure to seek outside employment." 57 MSPR at 564-65.


Footnote # 5 for 59 FLRA No. 158 - Authority's Decision

   We note the Union's agreement that the Arbitrator's award of the next available Claims Representative vacancy "was wholly appropriate." Exception at 4.


Footnote # 6 for 59 FLRA No. 158 - Authority's Decision

   Because the second requirement of the Back Pay Act has not been met, we do not address the Union's argument that there is no obligation for an employee to mitigate damages under the Back Pay Act and that the Arbitrator shoul