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18:0486(65)AR - AFGE Local 3553 and VA Medical Center, New Orleans, LA -- 1985 FLRAdec AR

[ v18 p486 ]
The decision of the Authority follows:

 18 FLRA No. 65
                                            Case No. 0-AR-703
    This matter is before the Authority on exceptions to the award of
 Arbitrator Norwood J. Ruiz filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The grievance in this case concerned the Activity's failure to
 promote the grievant to the position of pipefitter foreman.  The
 grievant was selected from a certificate of eligibles, but his promotion
 was never effectuated by the approving official because it was
 determined that he would be supervising his brother in violation of the
 Veterans Administration nepotism regulation.  A waiver of the regulation
 was requested, but it was denied.  Thereafter, the grievance was filed
 and submitted to arbitration.  At arbitration the Union primarily
 contended that the grievant was wrongfully denied promotion because the
 Activity as a matter of practice willfully and knowingly permitted, in
 other cases, nepotism violative of the agency regulation.  The
 Arbitrator determined that "there (was) not one iota of credible
 evidence" to substantiate that the Activity knowingly permitted such
 nepotism.  The Arbitrator did however expressly cite a previous
 situation at the Activity involving an employee who supervised another
 employee whom he subsequently married.  The Arbitrator noted that the
 subordinate was permitted to remain in her position after her job
 description was amended to have someone other than her husband have
 responsibility for all personnel actions affecting her.  The Arbitrator
 acknowledged the Activity's explanation that the grievant's situation
 was different because the prohibited nepotism here was pre-existing and
 the promotion personnel action could not have been effectuated
 consistent with regulation.  The Arbitrator nevertheless determined that
 the grievant had a right to protection from discriminatory application
 and interpretation of agency policy and that he had not been afforded
 this equality.  Accordingly, as his award, the Arbitrator ordered the
 Activity to waive application of the agency nepotism regulation and to
 permanently promote the grievant retroactively with backpay to the
 position of pipefitter foreman.
    In its exceptions the Agency contends among other things that the
 award is contrary to the Back Pay Act, 5 U.S.C. 5596, and section 7106
 of the Statute.  The Authority agrees.
    The Authority has uniformly held that in order for an award of
 backpay to be authorized under the Back Pay Act, there must be not only
 a determination that the aggrieved employee was affected by an
 unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the withdrawal or reduction in
 the pay, allowances, or differentials that the employee would otherwise
 have earned or received.  E.g., American Federation of Government
 Employees, Local 51 and U.S. Department of the Mint, Old Mint Building,
 Customer Service Division, 15 FLRA No. 164 (1984).  More specifically,
 the Authority has held in cases involving a failure to promote that in
 order for a retroactive promotion and backpay to be authorized, there
 must be both a determination that the grievant was affected by an
 unjustified and unwarranted personnel action and a determination that
 such unwarranted action directly resulted in the denial of a promotion
 to the grievant that the grievant otherwise would have received.  E.g.,
 American Federation of Government Employees, Local 2811 and U.S.
 Government District Office, Social Security Administration, St. Paul,
 Minnesota, 7 FLRA 618 (1982).  In terms of this case, the Arbitrator, as
 noted, expressly determined that the grievant was not afforded equality
 with respect to the interpretation and application of agency policy,
 which constitutes the requisite finding that the grievant was affected
 by an unjustified or unwarranted personnel action.  The Arbitrator,
 however, did not expressly find that this unwarranted action directly
 resulted in the failure of the grievant to be promoted when he otherwise
 definitely would have been, and consequently the award in this respect
 is deficient.  See, e.g., American Federation of Government Employees,
 Local 2502 and U.S. Department of Justice, Federal Prison System,
 Federal Correctional Institution, 17 FLRA No. 61 (1985).
    With regard to filling positions, the Authority has specifically held
 that section 7106(a)(2)(C) of the Statute ensures to management the
 right to make the actual substantive determinations with respect to
 selection and appointment.  Army and Air Force Exchange Service, Fort
 Knox Exchange, Fort Knox, Kentucky and American Federation of Government
 Employees, Local 2302, AFL-CIO, 8 FLRA 256 (1982).  In conjunction with
 the decisions of the Authority specifying when an award of a retroactive
 promotion is authorized under the Back Pay Act, the Authority has
 indicated, however, that an agency may be constrained consistent with
 section 7106(a)(2)(C) to select a particular employee for promotion if
 an arbitrator finds that the employee has been affected by improper
 agency action that has directly resulted in the failure of the employee
 to be promoted when the employee otherwise would have been.  See
 American Federation of Government Employees, Local 12 and United States
 Department of Labor, 15 FLRA No. 113 (1984).  In this case, as indicated
 above, the Arbitrator has not made these findings that would constrain
 the Activity consistent with section 7106(a)(2)(C) to take the actions
 necessary to effectuate the grievant's promotion to the position of
 pipefitter foreman.  See id. at 2.
    For these reasons, the award of backpay is deficient as contrary to
 the Back Pay Act and the order to waive the agency nepotism regulation
 and promote the grievant is deficient as contrary to section
 7106(a)(2)(C) of the Statute.  Accordingly, the award is set aside.  /2/
 Issued, Washington, D.C., June 19, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ MP-5, Part 1, Chapter 300, Change 1 pertinently provides:
          a.  Extreme care must be taken to avoid any possibility or
       likelihood that the nepotism law may be violated in an employment
       action (5 U.S.C. 3110).
          b.  Close relatives, as defined in chapter 310 of the FPM, will
       not be assigned so that one relative will directly supervise the
       work of another, or be in a position to make or influence an
       administrative decision, or take (or fail to take) an action which
       will affect the other relative.
          c.  Provided that the nepotism law is not violated, exceptions
       to the VA policy in subparagraph b above are permitted (1) for
       details and acting assignments, and (2) when the assignment
       violates VA policy but is the only way that the employee's legal
       or regulatory right to a position can be met, such as restoration,
       reemployment or reduction-in-force.
    /2/ In view of this award it is not necessary to address the Agency's
 other exceptions, and it is not necessary to address the award of a
 permanent promotion by the Arbitrator when the announcement for the
 foreman position stated that the promotion was temporary.