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

[ v61 p315 ]

61 FLRA No. 57

SOCIAL SECURITY ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)

0-AR-3936

_____

DECISION

September 30, 2005

_____

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 Mollie H. Bowers 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 untimely opposition to the Agency's exceptions. [n2] 

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) in the non-selection of the grievant for merit promotion to the position of Claims Representative (CR).

      For the reasons that follow, we find that the remedy ordered by the Arbitrator is deficient under § 7122(a)(1) of the Statute. Accordingly, we set aside this portion of the award.

II.     Background and Arbitrator's Award

      The grievant, a GS-8 Service Representative, applied for a CR position under two vacancy announcements. When the grievant learned that she had not been selected for the vacancies, she filed a grievance alleging that the Agency had violated Article 26, Section 11(C), among other articles, in its non-selection of the grievant for the vacancies by not "seriously considering" her "as a well qualified candidate who has been stagnated in grade." [n3]  Award at 5. The grievance also alleged that the "Agency had held against the [g]rievant the fact that she had `legitimate health problems and the fact that she exercised her legitimate [U]nion rights.'" Id. at 6. The grievance was denied and the matter was submitted to arbitration.

      Before the Arbitrator, the Union asserted that Article 26 provides that "once the Assessment Panel has established the well-qualified list selecting officials are prohibited from gathering additional information on the various applicants." Id. at 8. The Union argued that the selecting officials "received additional information beyond that provided through the Assessment Panel" and that these officials failed to give fair and impartial consideration to the grievant. Id. The Union also argued that these officials ignored their responsibility to consider grade stagnation as required under Section 11(C) of the CBA. The Agency argued that it did not violate Article 26 because it maintains the right to determine the qualifications needed to perform the work of a position and to determine those employees best qualified. The Agency asserted that grade stagnation did not apply to the grievant.

      The Arbitrator found "nothing in the parties' . . . agreement negates the Agency's right to determine the knowledge, skills, and abilities needed to perform a certain job" or "to determine who among [the] applicants . . . holds the requisite knowledge, skills, and abilities[.]" Id. at 10. Rather, according to the Arbitrator, Article 26 requires the Agency to "exercise its rights in such a way as to protect the right of candidates to a full and fair consideration of their qualifications." Id. at 11.

      The Arbitrator noted that while the Agency argued that full and fair consideration was given to the grievant's application, the record revealed "too many inconsistencies" to "accept the veracity of the claim." Id. The Arbitrator concluded that the selecting officials "had engaged in prohibited `information gathering' during their review and assessment of applicants." Id. The Arbitrator found that while one of these officials "may not have taken the initiative to get extra information on candidates beyond that provided through the Assessment Panel, when it came his way, he acted on it." Id. [ v61 p316 ] As to the other official, the Arbitrator noted his testimony that while he did not talk with anyone involved with the candidates during his consideration of them, he was "`aware from previous discussions with [Agency managers]' that the [g]rievant `could be a better team player,' that she need[ed] to `step up more,' `that she doesn't carry out assignments as well as she could have.'" Id. at 12. The Arbitrator found questionable the latter official's assertion that this information did not influence his consideration of the grievant's potential for a CR.

      The Arbitrator found the testimony of the selecting officials concerning their rationale for selecting specific individuals was suspect, given the description of the placement factors and their assigned point values promulgated as the standard assessment criteria. The Arbitrator found that the "destruction of the promotion packages ma[de] it impossible to address the issue." Id. at 12-13. The Arbitrator also found it "extremely unlikely that files directly relating to a grievance could be `inadvertently destroyed.'" [n4]  Id. at 13.

      The Arbitrator further determined that a finding for the Union did not rest with judging the correlation between selection placement factors and candidate applications, because "[w]hen the selecting officials received/obtained information/assessments about the [g]rievant outside the materials presented by the Assessment Panel they denied the [g]rievant full and fair consideration for promotion and thus violated Article 26." Id.

      As a remedy, the Arbitrator directed the Agency to promote the grievant to the position of CR retroactively with full back pay, plus interest.

III.     The Agency's Exceptions

      The Agency contends that the award violates management's right to select employees under § 7106(a)(2)(C) of the Statute. Citing United States Dep't of the Treasury, Bureau of Engraving & Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency contends that the award is deficient under the first prong because it did not identify a violation under Article 26, Section 11(A) of the CBA. According to the Agency, although the Arbitrator "construed the selecting officials' `knowledge' about [the grievant] as improper `information gathered' under Article 26, § 11(A), the Arbitrator conceded that [one of the selecting officials] `may not have taken the initiative to get extra information' and failed to address . . . that this `gathered information' was obtained by [the second selecting official] after the well-qualified list had been established, as required under the [CBA]." Exceptions at 6 (emphasis in original). The Agency argues that in these circumstance the award does not satisfy prong I of BEP because it does not provide a remedy for an actual contractual violation.

      The Agency further states that even if the Arbitrator did properly find that it violated Article 26, the Arbitrator failed to satisfy prong II by "establishing that [the grievant] would have been selected for the [CR] position but for management's violation of Article 26, § 11(A)." Id. at 2. According to the Agency, the Arbitrator "never addressed what would have happened had the selecting officials not violated Article 26, § 11(A) by improperly gathering information about [the grievant], and the Arbitrator . . . did not establish that [the grievant] would have been promoted to the CR position had the violation not occurred." Id. at 7 (footnote omitted).

      The Agency acknowledges that some of the promotion materials were "inadvertently" destroyed. Id. at 7 n.6. The Agency explained that it was able to produce certain information and further noted that the Arbitrator "conceded that even if this information was available, the assessment factors considered by the Assessment Panel in establishing the well-qualified list had no bearing on the selection of the candidates." Id.

      The Agency asserts that the Arbitrator failed to establish that the grievant was entitled to relief under the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, the Arbitrator did not establish a causal connection between the Agency's violation of Article 26 and the grievant's non-selection.

      The Agency contends that the award does not draw its essence from Article 26, § 11(A) of the CBA. According to the Agency, the Arbitrator "changed the plain meaning of Article 26, § 11(A) to include, not just information gathered after the compilation of the well qualified list but also information already possessed by the selecting official." Id. at 9. The Agency contends that the Arbitrator "did not make a distinction between prior and after-acquired knowledge, yet nothing in Article 26, § 11(A) states, or even suggests, that a selecting official needed to divest himself of all prior knowledge of the . . . candidates." Id. The Agency asserts that the Arbitrator did not find, and there is nothing in the record that suggests, that one of the selecting officials gathered information after the establishment of the well-qualified list. [ v61 p317 ]

IV.     Analysis and Conclusions

A.      The Award Does Not Fail to Draws its Essence from the
          Parties' CBA

      The Agency contends that the award fails to draw its essence from Article 26, § 11(A) of the CBA. According to the Agency, the Arbitrator "changed the plain meaning of Article 26, § 11(A) to include, not just information gathered after the compilation of the well qualified list but also information already possessed by the selecting official." Exceptions at 9. In order for an award to be found deficient because it does not draw its essence from a collective bargaining agreement, a party must show 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 purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context because it is "the arbitrator's construction of the agreement for which the parties bargained." Id. at 577.

      In this case, Article 26, Section 11(A) provides, in part, that "[o]nce a well qualified list has been established by the Assessment Panel, there will be no other candidate information gathered by the selecting official." The Arbitrator interpreted this language to prohibit selecting officials from "receiv[ing]/obtain[ing] information/assessments about the grievant outside the materials presented by the Assessment Panel." Award at 13. The Arbitrator found that one selecting official considered more than just the Panel's assessment of the grievant because the selecting official also was aware of assessments of the grievant that were obtained by the selecting official from prior conversations with other managers. Id. at 12. The Arbitrator concluded that this conduct amounted to "prohibited `information gathering[.]'" Id. at 11.

      The Arbitrator found that the selecting official could not consider the other managers' assessments of the grievant because those assessments were not contained in the Assessment Panel's materials. As the language of Article 26, Section 11(A) addresses limitations on what candidate information will be available to selecting officials, we find that the Arbitrator's determination is not so unfounded, implausible, irrational, or in disregard of the agreement so as to fail to draw its essence from the CBA. Therefore, we deny this exception.

B.      The Award Is Contrary to the Right to Select under
          § 7106(a)(2)(C) of the Statute

      The Agency's exceptions challenge the award's consistency with law. The Authority reviews questions of law raised in the Agency's exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (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. 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, 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. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contractual provision at issue. See BEP, 53 FLRA at 151-154.

      The Authority has held that an award requiring an agency to make a selection for an appointment affects management's right under § 7106(a)(2)(C) of the Statute. See AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (AFGE) (Authority held that an award which placed a grievant in a position affected management's right to select); United States Dep't of Health & Human Servs, Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 302 (1993) (Authority found that an award ordering retroactive promotion of the grievants affected management's right to select). Here, the Arbitrator ordered the Agency to promote the grievant to the position of CR retroactively with full back pay as a remedy for its failure to select her for a position. Thus, the award requires the Agency to place the grievant in a CR position. Therefore, the award affects management's right to select.

      As to prong I, the Agency argues solely that the award does not identify a violation under Article 26, § 11(A) of the CBA and thus does not provide a remedy for an actual contractual violation. [n5]  Contrary to the [ v61 p318 ] Agency's assertion, the Arbitrator specifically found that the Agency violated the requirements of Article 26 to provide the grievant full and fair consideration for promotion when the selecting officials "engaged in prohibited `information gathering' during their review and assessment of applicants." Award at 11. The remedy awarded, therefore, is directed at the Agency's violation of Article 26, § 11(A). Thus, the Agency's assertion provides no basis for finding that the award fails to satisfy prong I.

      Turning to prong II, the question is whether the Arbitrator's remedy, directing the Agency to promote the grievant to the position of CR retroactively, is a proper reconstruction of what the Agency would have done had it not violated the parties' CBA. In order to apply prong II, it is essential to identify how the violation relates to the remedy. See Panama Canal Comm'n, 54 FLRA 1161, 1174 (1998). Here, the Arbitrator did not explain what would have happened had the selecting officials not violated Article 26 by improperly obtaining information about the grievant. In that respect, the Arbitrator found that the grievant was not properly considered for the CR position, but the Arbitrator never determined that the grievant would have been promoted to the CR position had Article 26 not been violated. The Arbitrator stated only that "[w]hen the selecting officials received/obtained information/assessments about the [g]rievant outside the materials presented by the Assessment Panel they denied the [g]rievant full and fair consideration for promotion and thus violated Article 26." Award at 13. There is nothing in the Arbitrator's factual finding that reflects that the grievant would have been selected for promotion had the Agency acted properly.

      Accordingly, the remedy requiring the Agency to promote the grievant is deficient because it does not represent a reconstruction of what the Agency would have done had there been no violation. See, e.g., Soc. Sec. Admin., 58 FLRA 739, 743 (2003) (Chairman Cabaniss concurring) (award directing an agency to appoint a different selecting official failed to satisfy prong II because it did not reflect a reconstruction of what the agency would have done had it not violated the parties' agreement); AFGE, 54 FLRA at 1235-36 (award requiring an agency to reinstate a grievant failed to satisfy prong II because it did not constitute a reconstruction of what the agency would have done if it had acted properly under a memorandum of understanding and, therefore, as it concerned, that grievant was set aside). Therefore, we set aside the award of a retroactive promotion and, as a consequence, the award of back pay as well. [n6] 

V.     Decision

      The award as it concerns the remedy is deficient as contrary to law and, therefore, is set aside. [n7] 


APPENDIX

      Article 26 of the parties' CBA agreement, which is entitled Merit Promotion, contains a number of sections that address Agency's promotion and selection process provides. It provides, in relevant part, as follows:

Section 1 - Purpose and Policy
. . . .
The parties agree that the purpose and intent of the provisions contained [in Article 26] are to ensure that merit promotion principles are applied in a consistent manner with equity to all employees . . . and shall be based solely on job-related criteria. This article sets forth the merit promotion system, policies, and procedures applicable to bargaining unit positions in the [Agency].
Section 10 - Assessment Panel
. . . .
D.     Assessment Panel Responsibilities - The Assessment Panel will:
1. Develop assessment criteria;
. . . . [ v61 p319 ]
3. Verify applicant information, if necsary;
4. Apply assessment criteria;
5. Identify well-qualified candidates . . . .;
The Panel's working notes and/or work sheets will be made a part of the promotion package. The notes will serve as reference material to document the process by which the well-qualified candidates were identified.
Section 11 - Selection
A.     Once a well qualified list has been established by the Assessment Panel, there will be no other candidate information gathered by the selecting official. However, this does not preclude the selecting official from recontacting the Assessment Panel and/or interviewing all well-qualified candidates.
. . . .
C.     If an under-representation is not present, then the selecting official will seriously consider providing upward mobility for those well-qualified candidates who have been stagnated in grade.
Section 13 - Priority Consideration
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 consider[ation].

Award at 2-3.


Opinion of Member Pope, dissenting in part:

      I agree with the majority that the award does not fail to draw its essence from the parties' agreement, but that the remedy portion of the award is contrary to law because it does not satisfy prong II of the Authority's BEP analysis.

      I disagree with the majority's decision to set aside the deficient remedy without remanding the award to the parties/Arbitrator to formulate an alternative remedy. By leaving the contractual violation intact, but finding deficient the only remedy that was awarded for the violation, the majority continues its unjust practice of depriving employees of redress for contractual violations while permitting agencies to evade liabilities for such violations. The majority further compounds its error, as it has in the past, by refusing to explain what "facts and circumstances" it examines in considering whether to remand an award, and why it finds no such facts and circumstances here.

      Accordingly, and consistent with my dissents in United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248 (2003) and United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill., 59 FLRA 811 (2004), I dissent in part.



Footnote # 1 for 61 FLRA No. 57 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 57 - Authority's Decision

   The Authority issued an Order directing the Union to show cause why its opposition should be considered by the Authority because the opposition appeared to be untimely filed. The Union filed a timely response to the Order, but the response does not demonstrate that the opposition was timely filed. Accordingly, we have not considered the Union's opposition.


Footnote # 3 for 61 FLRA No. 57 - Authority's Decision

   The pertinent text of Article 26 is set forth in the Appendix to this decision.


Footnote # 4 for 61 FLRA No. 57 - Authority's Decision

   The Arbitrator found that the files were destroyed some time after the grievance was filed and after management's 3rd step response to the grievance. Award at 13.


Footnote # 5 for 61 FLRA No. 57 - Authority's Decision

   As the Agency raises no other argument as to how the award conflicts with BEP, we address only that argument raised by the Agency.


Footnote # 6 for 61 FLRA No. 57 - Authority's Decision

   In view of this determination, we find it unnecessary to address the Agency's contention concerning the Back Pay Act.


Footnote # 7 for 61 FLRA No. 57 - Authority's Decision

   In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248, 252 (2003) (Chairman Cabaniss concurring and Member Pope dissentin