Defense Security Assistance Development Center (Agency) and American Federation of Government Employees, Local 2004 (Union)

[ v60 p292 ]

60 FLRA No. 63

DEFENSE SECURITY
ASSISTANCE DEVELOPMENT CENTER
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2004

(Union)

0-AR-3609
(59 FLRA 270 (2003))

_____

DECISION

September 29, 2004

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to the award on remand of Arbitrator J. Joseph Loewenberg 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 exceptions.

      On remand from the Authority, the Arbitrator awarded the grievants priority consideration for future promotion vacancies. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The Union filed a grievance, which was submitted to arbitration, where the Arbitrator framed the issue as whether the Agency violated law or the parties' collective bargaining agreement when it did not select five specified employees for promotion. The Arbitrator denied the grievance as it pertained to two of the employees. As to the other three employees, he sustained the grievance. He ruled that as to these employees, the Agency had violated 5 U.S.C. §§ 2301-2302 and the parties' collective bargaining agreement. As a remedy, he ordered the Agency to retroactively promote these employees with backpay to the date of the grievance. In explaining the remedial order, the Arbitrator stated that although he was ordering retroactive promotions, it was not possible to know whether any of the three grievants would have been promoted in 1998 if management had not engaged in the improper action.

B.     Authority's Decision in 59 FLRA 270

      The Agency filed exceptions to the Arbitrator's award. In 59 FLRA 270 (Chairman Cabaniss concurring; Member Armendariz dissenting in part), the Authority set aside the remedy of retroactive promotions with backpay because it was contrary to the Back Pay Act. [n1]  The Authority ruled that the remedy was deficient because it was not established that the three grievants would have been promoted if the Agency had not violated the law or the collective bargaining agreement. However, as only the remedy was set aside, the Authority remanded the issue of an appropriate remedy to the parties for resubmission to the Arbitrator absent settlement. See 59 FLRA at 271.

C.     Arbitrator's Award on Remand

      Following the Authority's decision, the parties submitted the remedy issue to the Arbitrator with each party proposing an appropriate remedy.

      The Union proposed the remedy of a prospective promotion for each of the three grievants. The Union asserted that the Back Pay Act does not apply to prospective promotions and that the remedy of prospective promotions was supported by the Chairman's concurring opinion in 59 FLRA 270. The Union also asserted that the remedy of prospective promotions would best serve the interests of fairness. The Union claimed that "a major stumbling block in its presentation in the arbitration hearings was the absence of documentary evidence," which the Union claimed had been "improperly abandoned or destroyed" by the Agency. Award on Remand at 2.

      The Agency proposed the remedy of priority consideration. The Agency maintained that the Arbitrator was not authorized to award the remedy of prospective promotions. The Agency asserted that under the Statute, an arbitrator must make the same findings for a prospective promotion that are required for a retroactive promotion and that the Chairman's concurring opinion in 59 FLRA 270 did not support a remedy of prospective promotions. Agency's Brief at 5 (citing Dep't of the Army, United States Army Missile Command, Redstone Arsenal, Ala., 25 FLRA 167 (1987) (Redstone Arsenal)).

      The Arbitrator stated the issue on remand to be "what is the most appropriate remedy that does not contravene law and regulations." Award on Remand at 3. The Arbitrator noted that in Redstone Arsenal, the Authority had advised that "the same finding that must [ v60 p293 ] be made by an arbitrator under the Back Pay Act in order to authorize an award of a retroactive promotion must also be made by an arbitrator in order to award a prospective promotion[.]" Id. at 4 (quoting Redstone Arsenal, 25 FLRA at 169). The Arbitrator agreed with the Agency that the failure to establish a causal connection between the Agency's actions and the grievants' failure to be promoted "would also seem to doom the award of a prospective promotion." Id. at 5. Accordingly, the Arbitrator awarded the three grievants "priority consideration in all future promotion vacancies for which each is eligible until he has been appointed to the next higher grade." Id. at 6.

III.     Positions of the Parties

A.     Union's Exceptions

      As background, the Union states that prior to resubmission to the Arbitrator, the parties conducted two settlement discussions, and the Union specifies the settlement proposals presented. The Union notes that the parties were unable to reach settlement and that the matter was resubmitted to the Arbitrator.

      The Union contends that the award on remand is deficient because it violates an "explicit, well-defined and dominant public policy by failing to provide an appropriate remedy for the Agency's intentional conduct." Exceptions at 3. The Union notes that regulations implementing the Ethics in Government Act prohibit executive branch employees from engaging in any of the prohibited personnel practices set forth in 5 U.S.C. § 2302 and from destroying public records. See id. (citing 5 C.F.R. § 2635.902). The Union also notes that 5 C.F.R. § 335.103(b)(5) requires agencies to maintain promotion records that allow reconstruction of promotion actions.

      The Union asserts that the Ethics in Government Act and these regulations clearly demonstrate that the Agency's actions in this case were contrary to these explicit, well-defined, and dominant public policies. The Union further asserts that public policy requires that the arbitration process and, ultimately, the FLRA provide a meaningful remedy for the Agency's actions. The Union argues that the Arbitrator's remedy of priority consideration is not meaningful or appropriate and that consequently, it "is contrary to explicit, well-defined and dominant public policy." Id. at 4.

      The Union also contends that the Arbitrator erred in finding that the remedy of prospective promotions was precluded by law. The Union asserts that the remedy of prospective promotions is permissible. The Union argues that prospective promotions are permissible even without a causal connection because the Back Pay Act does not apply to prospective promotions and the language in Redstone Arsenal, cited by the Agency and quoted by the Arbitrator, is dicta.

      The Union also argues that prospective promotions are not precluded by § 7106 of the Statute. The Union first asserts that management "forfeits its rights" to select for promotion under § 7106(a)(2)(C) when it fails to select from properly ranked and certified candidates. Id. at 10. In addition, the Union asserts that "[t]he plain language of 5 U.S.C. [§] 7106 does not require that the remedy reflect what management would have done had it not violated the agreement." Id.

      The Union maintains that the requirement under § 7106(a) that the remedy reflect a reconstruction of what management would have done had it acted properly is purely a matter of interpretation by the FLRA and is not required by the Statute. The Union argues that the requirement of reconstruction should not be applied to cases where an agency has improperly destroyed the records required for the reconstruction. The Union claims that prospective promotions should have been ordered because the grievants were entitled to an inference that the destroyed records would have shown that they would have been promoted had the Agency not violated the collective bargaining agreement. [n2] 

B.     Agency's Opposition

      The Agency contends that the Union provides no basis for finding the award deficient. The Agency argues that the Union fails to identify any public policy violated by the Arbitrator's remedy. The Agency maintains that priority consideration is an appropriate remedy and notes that the FLRA has itself modified awards to provide a remedy of priority consideration. In addition, the Agency claims that the Union inappropriately discusses settlement offers between the parties.

IV.     Analysis and Conclusions

A.     The award on remand is not deficient as contrary to public policy.

      We will find an award deficient as contrary to public policy. However, we have stated that this ground is "extremely narrow." Soc. Sec. Admin., 32 FLRA 765, 767 (1988) (quoting United States Postal Serv. v. NALC, 810 F.2d 1239, 1241 (D.C. Cir. 1987)) (SSA). For an award to be found deficient, the public policy must be explicit, well-defined, and dominant. See id. The appealing party must identify the policy "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. at 768 (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (Grace)). To prevail, the [ v60 p294 ] appealing party must clearly show that the award violates the asserted public policy. See id.

      We find that the Union fails to establish that the Arbitrator's award of priority consideration for promotion violates public policy.

      We note that the Union argues that the Agency's conduct, not the Arbitrator's award, violates the public policies set forth in 5 C.F.R. §§ 335.103(b)(5) and 2635.902. Accordingly, these policies provide no basis for finding the award deficient.

      The Union's public policy argument with respect to the award is that public policy requires meaningful and appropriate arbitration remedies and that the remedy of priority consideration in this case is not meaningful or appropriate to correct the Agency's improper conduct. However, the Union fails to cite any explicit, well-defined, and dominant public policy that proscribed the Arbitrator from awarding priority consideration for promotion in circumstances where there was no established causal connection between the Agency's unwarranted actions and the failure of the grievants to be promoted. See id.

      Furthermore, the explicit policy on arbitration remedies recognized by the Authority has always been one of according broad discretion to arbitrators in the fashioning of appropriate remedies. See, e.g., Veterans Admin., 24 FLRA 447, 450 (1986) ("[B]oth the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies."). The Union's asserted policy on meaningful and appropriate remedies is insufficient to override this clearly articulated policy on arbitration remedies. See AFGE Local 2172, 57 FLRA 625, 629 (2001). In addition, as recognized by the Agency, the Arbitrator's remedy of priority consideration is specifically supported by Authority precedent. In several cases where an arbitrator awarded a promotion without the required causal connection, the Authority ruled that the appropriate remedy was priority consideration and substituted that remedy for the deficient promotion remedy. See Veterans Admin. Med. Ctr., Houston, Tex., 36 FLRA 122, 128 (1990) (and cited cases).

      At best, this exception is based on "general considerations of supposed public interest[,]" which fail to establish the necessary explicit, well-defined, and dominant public policy. AFGE Local 2172, 57 FLRA at 629 (quoting Grace, 461 U.S. at 766). Consequently, this exception provides no basis for finding the Arbitrator's award on remand deficient. See id. Accordingly, we deny this exception.

B.     The Arbitrator did not err in finding that the remedy of a prospective promotion was precluded by law.

      The Arbitrator stated that the issue on remand was to determine the most appropriate remedy that is not contrary to law. He rejected the Union's proposed remedy of prospective promotions because he essentially determined that such a remedy was precluded by law. The Union in its exception argues that the award on remand is deficient because the remedy of prospective promotions is not precluded by law. This exception presents the question of whether the award is contrary to law. Accordingly, we review the exception de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995).

      We find that the Arbitrator correctly determined that the failure to establish a causal connection between the Agency's actions and the grievants' failure to be promoted precluded the award of prospective promotions.

      Prior to the establishment of the framework in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Authority uniformly and repeatedly held that management's right to make selections for promotions under § 7106(a)(2)(C) of the Statute could be abridged by an arbitrator only when the arbitrator found a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. See, e.g., Fed. Deposit Ins. Corp., Chicago Region, 45 FLRA 437, 443 (1992); NTEU, 35 FLRA 501, 508 (1990). Accordingly, regardless of whether the language of Redstone Arsenal, 25 FLRA at 169, stating that an arbitrator must support a prospective promotion with the same findings required of a retroactive promotion, is dicta, it accurately stated the Authority's interpretation and application of § 7106(a)(2)(C) of the Statute.

      In BEP, the Authority established a framework to assess when an award that affects a management right under § 7106 of the Statute is deficient. Under prong II of the BEP framework, the Authority considers whether the arbitrator's award reflects a reconstruction of what management would have done if management had acted properly. 53 FLRA at 154. Accordingly, under prong II, the Authority has continued to require that an award of a promotion reflect that the grievant would have been selected for promotion had the agency acted properly. See United States Dep't of Def., Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Ala., 55 FLRA 37, 41 (1998). Consequently, the Union fails to establish that prospective promotions are permissible under § 7106(a)(2)(C) when there is no established connection between the Agency's violation of the collective bargaining agreement and the grievants' failure to be promoted. Therefore, the Union provides no basis for finding deficient the Arbitrator's determination that a [ v60 p295 ] remedy of prospective promotions was precluded by law.

      The Union's arguments as to forfeiture, inferences, sanctions, and prong II fail to establish otherwise.

      We reject the Union's assertion that a prospective promotion is not precluded by § 7106(a)(2)(C) because the Agency "forfeit[ed]" its management right. Exceptions at 10. The Authority has uniformly adhered to the principle that management rights under § 7106 of the Statute cannot be waived. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 57 FLRA 158, 162 (2001) ("[M]anagement rights cannot be waived."); Michigan Air Nat'l Guard, Selfridge ANG Base, Mich., 34 FLRA 296, 298 (1990) ("Management rights under § 7106(a) cannot be waived or relinquished[.]").

      In addition, we reject the Union's arguments on inferences and sanctions. The Union provides no basis for compelling the Arbitrator to infer that the records allegedly destroyed by the Agency would have shown that the grievants would have been promoted if the Agency had acted properly in order to satisfy prong II. The Union also provides no basis on which to sanction the Agency's asserted improper destruction of records required for reconstruction. We note that the Arbitrator made no finding that the Agency intentionally destroyed documents.

      We also reject the Union's assertion that prong II should not be applied in this case because it is assertedly not required by the Statute. The Union argues that prong II is purely a matter of interpretation by the Authority and that "[t]he plain language of 5 U.S.C. [§] 7106 does not require that the remedy reflect what management would have done had it not violated the agreement." Exceptions at 10. The Authority has specifically reaffirmed prong II of BEP in cases where the arbitrator has enforced a contract provision negotiated pursuant to § 7106(b) of the Statute. See United States Dep't of Justice, Fed. Bureau of Prisons, Metropolitan Detention Ctr., Guaynabo, P.R., 59 FLRA 787, 791-92 (2004) (Bureau of Prisons); Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268-69 (2001) (Member Wasserman dissenting in part) (SSA, Boston).

      The Authority has determined that the requirements of prong II are rooted squarely in the Supreme Court's decision in IRS v. FLRA, 494 U.S. 922 (1990), and that reconstruction is necessary to ensure that an agency's rights are limited only to the extent to which the parties have bargained. See SSA, Boston, 57 FLRA at 269-70. Accordingly, prong II applies in this case to preclude prospective promotions because there is no established connection between the Agency's violation of the parties' agreement and the grievants' failure to be promoted.

      We note that in Bureau of Prisons, the Authority modified the application of prong II. The Authority ruled that "[a]n arbitrator may lawfully award a remedy directing relief that is provided for by Title VII [of the Civil Rights Act of 1964], irrespective of whether such a remedy affects a management right but fails to reflect reconstruction." 59 FLRA at 792. However, we do not construe the Union's exception as contending that prospective promotions are provided as a remedy for the violations of 5 U.S.C. §§ 2301-2302 originally found by the Arbitrator. Accordingly, even if Bureau of Prisons applies to all applicable laws, within the meaning of § 7106(a)(2), it is not necessary for us to address whether in the circumstances of this case, the remedy of prospective promotions is provided for by §§ 2301-2302.

      In sum, the Union fails to establish that the award denying prospective promotions is contrary to law. Accordingly, we deny this exception. [n3] 

V.     Decision

      The Union's exceptions are denied. [n4] 



Footnote # 1 for 60 FLRA No. 63 - Authority's Decision

   In her concurrence, Chairman Cabaniss questioned whether the Back Pay Act provided a basis for setting aside the retroactive promotions. See 59 FLRA at 271-72.


Footnote # 2 for 60 FLRA No. 63 - Authority's Decision

   In addition, the Union contends that "the original arbitration award should be reinstated." Exceptions at 13. The Union claims that under § 2429.5 of our Regulations, we should not have addressed the Back Pay Act in 59 FLRA 270. The Union also claims that "an award of retroactive promotion and back pay is permissible under the Back Pay Act." See id. at 12.


Footnote # 3 for 60 FLRA No. 63 - Authority's Decision

   Because the Arbitrator did not order prospective promotions and we have denied the Union's exception that the failure to do so is contrary to law, we need not determine how or if the Back Pay Act would apply if such promotions had been ordered.


Footnote # 4 for 60 FLRA No. 63 - Authority's Decision

   In denying the Union's exceptions, we have not considered the settlement discussions of the parties addressed by the Union in its exceptions. In addition, in its exceptions, the Union also claimed that the original award should be reinstated either because the retroactive promotions are permissible under the Back Pay Act or because we should not have considered the Agency's exception on the Back Pay Act. These claims directly challenge the decision in 59 FLRA 270. As such,