[ v18 p486 ]
The decision of the Authority follows:
18 FLRA No. 65 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3553, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER, NEW ORLEANS, LOUISIANA Activity Case No. 0-AR-703 DECISION 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 Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ MP-5, Part 1, Chapter 300, Change 1 pertinently provides: 10. EMPLOYMENT OF MEMBERS OF THE SAME FAMILY 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.