File 2: Opinion of Chairman Cabaniss
[ v62 p125 ]
Chairman Cabaniss, dissenting in part:
I write separately to explain why I disagree with the finding that the "retroactive appointment" remedy for the grievant was imposed by the arbitrator in response to the agency's contract violation for failing to provide "proper consideration" to all bargaining unit employees prior to seeking external applicants. Because the arbitrator's award was unclear whether the retroactive appointment remedy was granted based upon the violation of not affording the grievant a preference based upon his service-connected disability (veterans' preference), I would find that the Authority must address on the merits the agency's exception alleging that the application of a veterans' preference to the grievant for this personnel action is contrary to law.
The AWARD portion of the decision, in its entirety, reads as follows:
The grievance was filed in a timely manner and the grievance is affirmed in part. The agency did not afford proper consideration to bargaining unit employees in violation of the Master Labor Agreement. The Agency did not afford the [g]rievant disabled veteran preference eligible rights. The grievant is entitled to a retroactive appointment or priority consideration for any future appointment (to be determined by the Agency) along with any rights to any losses in back pay or losses in fringe benefits. The Agency is instructed to give proper consideration to bargaining unit employees. The Agency will pay for reasonable attorney fees and costs incurred by the [g]rievant and the Union in this case. Th[e] Arbitrator will retain jurisdiction for a period of 90 days for any clarification of the award and with regard to the determination of any damages in this case.
Award at 13-14.
As noted in the majority opinion, the Arbitrator found a contract violation for failing to provide bargaining unit employees "proper consideration" prior to considering external applicants for the position at issue here (Award at 9), and a violation of law, rule, or regulation from the agency's failure to consider this personnel action as a "competitive appointment" for which the grievant was entitled to certain veterans' preference rights (Award at 13). The agency challenged the award as being contrary to the laws, rules, and regulations governing veterans' preference. The majority finds no need to address this exception by finding that there remains an alternative basis for upholding the award even if the award does violate veterans' preference laws, rules, and regulations, i.e., the contract violation, which is not challenged by the agency. Put more directly, the majority finds that the arbitrator relied on the contract violation to award the retroactive appointment, and as the contract violation is not challenged there remains an alternative basis for upholding the award.
As is clear from the quoted part of the decision, supra, the award is not at all clear in explaining whether the remedy of a retroactive appointment is based upon the contract violation, the violation of veterans' preference rights, or both. One possible option would be to remand to the arbitrator for an explanation of the award's rationale for the retroactive appointment remedy. However, as the arbitrator provided the agency the option of awarding the grievant either priority consideration for any future appointment, or an actual retroactive appointment, it could be concluded that the former remedy option was in response to the contract violation for failing to afford "proper consideration" to the grievant as a bargaining unit employee, while the latter remedy option was in response to the arbitrator's belief that the agency failed to afford the grievant his veterans' preference rights. Consistent with that, I would find that the Authority must resolve on the merits the agency's contrary to law claim pertaining to veterans' preference rights.
Related to the disagreement discussed above, I also disagree with the majority's decision not to seek an advisory opinion from the Office of Personnel Management (OPM). The basis for this disagreement stems from 5 U.S.C. § 7105(i), where Congress explicitly instructed that:
In the exercise of the functions of the Authority under this title, the Authority may request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority.
In this case it is not clear whether the grievant is entitled to a veterans' preference where he applied for a position within the same agency under an external application process, i.e., anyone, including those outside the Federal government, may apply for the position. In this respect, there is relative uncertainty in resolving this question. For instance, OPM in its regulations states that a veterans' preference "does not [ v62 p126 ] apply . . . to inservice placement actions such as promotions." [n1] 5 C.F.R. § 211.102(c); See also, Brown v. Dep't of Veterans Affairs, 247 F.3d 1222 (Fed. Cir. 2001); Bates v. Runyon, 97 F.3d 1464 (10th Cir. 1996); Glenn v. USPS, 939 F.2d 1516, 1523 (11th Cir. 1991) (Glenn) ("[V]eterans' preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency."); Qualls v. United States, 230 Ct. Cl. 534; 678 F.2d 190, 196-97 (Ct. Cl. 1982). Here, we note that the grievant may have received either a "promotion," which is defined as "a change of an employee, while serving continuously within the same agency: (i) [t]o a higher grade when both the old and new positions are under the General Schedule or under the same type grade . . .." 5 C.F.R. § 210-102(b)(11) (emphasis added) or, the grievant may have received a reassignment, which means "a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion." 5 C.F.R. § 210- 102(b)(12) (emphasis added). In any event, under the terms of the above OPM definitions, had the grievant been offered and accepted one of the advertised jobs, such action may have resulted in either a "promotion" or "reassignment."
Of course, it is also possible that the grievant may have received an "appointment" if he was hired through the external placement process, rather than through an internal process as the union argues. If the grievant's placement is considered an "appointment," the union argues that the grievant would be entitled to a veterans' preference under 5 C.F.R. § 335.106, which mirrors past statutory language as part of the Veterans Employment Opportunities Act (VEOA) found in 5 U.S.C. § 3304(f). [n2] VEOA, Pub.L. No. 105-339, 112 Stat 3182 (1998). However, the legislative history of the VEOA indicates, contrary to the union's claims, that the VEOA did not confer new benefits upon those already in civilian service. For example, one representative remarked that the VEOA "opens Federal employment opportunities for individuals honorably discharged from the military . . . by eliminating artificial barriers which prevent them from competing for Federal jobs because they are not already civilian employees or employees of a particular agency." 143 CONG. REC. E631-02 (daily ed. Apr. 10, 1997) (statement of Rep. Maloney), 1997 WL 168838 (emphasis added). Another representative commented that:
[V]eterans entitled to preference and other veterans who have 3 years of honorable service in the military will receive expanded opportunities to compete for Federal jobs. Very often, Mr. Speaker, Federal agencies will only allow current civilian employees to apply for vacancies. Veterans who do not work for the Federal Government are barred from even competing on their merits for these jobs. That will change when this legislation is enacted. Under this bill whenever an agency opens the competition to civilian employees outside of its own workforce, it must also allow these qualified veterans to compete.
144 CONG. REC. H10185-02 (daily ed. Oct. 8, 1998) (statement of Rep. Mica), 1998 WL 716410.
Accordingly, based upon the legislative history and the decision in Hunt, 154 F. Supp.2d at 1053, along with the various other decisions cited above, one could reasonably conclude that the grievant was not entitled to the 10-point veterans' preference to which the grievant claims he was denied. In this respect, and consistent with court precedent, it is clearly arguable that 5 C.F.R. § 335.106 does not expand the scope of a veterans' preference beyond an "initial appointment." See, e.g., Glenn, 939 F.2d at 1523; Hunt, 154 F. Supp.2d at 1053.
However, with this said, the Merit Systems Protection Board (Board) issued a decision after this matter came before the Authority. In Perkins v. USPS, 100 MSPR 48 (2005) the Board indicated that Glenn, and cases relying on Glenn, are distinguishable as they did not encompass the question as to whether an "internal applicant is entitled to veterans' preference within an open competitive examination[.]" Additionally, the Board notes, and gives some deference to, an OPM handbook (OPM's Delegated Examining Operations Handbook, A Guide for Federal Agency Examining Offices (1999)) which states, in pertinent part, "[u]nder [ v62 p127 ] the competitive (external) process, the veteran is given veterans preference. However, under the merit promotion (internal) process, veterans' preference is not used for status applicants." Ultimately, the Board concluded that veterans of an agency applying for a position in that agency, but through an external process, are entitled to a veterans' preference.
Therefore, as Congress has clearly authorized the Authority to seek an advisory opinion from OPM as to what interpretation it gives 5 C.F.R. § 335.106, and given the split in reasoned approaches as to what specific veterans' preference are allowable under these circumstances, I believe the Authority should seek OPM's opinion in its interpretation of this regulation. Not doing so leaves this question open to continued debate rather than resolving this issue for both agencies and veterans alike.
Footnote # 1 for 62 FLRA No. 32 - Chairman Cabaniss
To the extent that the arbitrator or the union contend that the Veterans Employment Opportunities Act of 1998 expanded veterans' preferences past an initial appointment, neither sets forth language in the VEOA that leads to this result. See, e.g., Hunt v. United States Gov't., 154 F. Supp.2d 1047, 1053 (E.D. Mich. 2001)(Hunt) ("Nothing in . . . VEOA, suggests that veterans' preferences have been expanded beyond initial appointment.")
Footnote # 2 for 62 FLRA No. 32 - Chairman Cabaniss
Preference eligibles or veterans who have been separated under honorable conditions from the armed forces after completing (as determined by the agency) 3 or more years of continuous active military service may compete for vacancies under merit promotion when an agency acc