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The decision of the Authority follows:
35 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
May 2, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator James P. O'Grady. The grievant, who had been granted priority referral consideration, filed a grievance relating to his nonselection for either of two unit vacancies. The Arbitrator found that the Activity had not violated the parties' collective bargaining agreement or pertinent regulations by its failure to select the grievant.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition to the Union's exceptions.
After the arbitration award issued, we found in a related unfair labor practice case that the selecting official in this case was biased against priority referral candidates. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 34 FLRA 956 (1990) (Scott Air Force Base I). Because we are unable to resolve the Union's exceptions without a determination by the Arbitrator as to the impact of our finding in the related unfair labor practice case, we will remand the Arbitrator's award to the parties with the direction that they obtain a clarification and interpretation of the award in accordance with this decision.
II. Background and Arbitrator's Award
The grievant, John Cissell, is a boiler operator, Wage Grade-9 (WG-9), at the Activity's base. In November, 1987, the Activity's personnel office mistakenly omitted the grievant's name from the merit promotion list for a WG-10 boiler operator vacancy. In resolving the dispute over the personnel office's mistake through the parties' negotiated grievance procedures, the Activity granted the grievant priority consideration, also known as priority referral, for future boiler operator vacancies.
In January, 1988, during the selection process for the two WG-10 boiler operator vacancies at issue in this case, the Activity conducted interviews with candidates, including the grievant, who were interested in being selected for the vacancies. Award at 4. The Superintendent-Heat Plant, Charles Affolter, and the appropriate first level supervisor represented the Activity at the interviews. Id. Each management official scored the candidates' qualifications and suitability for the vacant positions on the basis of their answers to interview questions formulated by Affolter, who was also the selecting official. Award at 10-11. According to the Arbitrator, the grievant did not score the minimum number of points during this interview and he was not considered to be suited for either of the vacancies. Id. at 11. When the parties could not resolve the dispute over the failure of the Activity to select the grievant for either of the two vacancies, the matter was submitted to arbitration.
The Arbitrator found that the Activity had properly considered the grievant for the two vacancies. In this regard, he determined that the "consideration given the [g]rievant's qualifications and suitability for the position[s] was genuine and meaningful." Award at 7. He specifically rejected the Union's contention that the failure to select the grievant amounted to a rejection of the priority consideration to which the grievant was entitled. He also apparently rejected the Union's contention that the Activity was estopped by law from challenging the Administrative Law Judge's credibility determinations in Scott Air Force Base I that the selecting official had made certain statements between April and May, 1987 that allegedly expressed a bias against the grievant's union activities and against priority referrals. In this regard, the Arbitrator concluded that the unfair labor practice case was another forum and that "he must make his own credibility determination." Award at 10. The Arbitrator determined that the selecting official did not act in bad faith when he failed to select the grievant.
Finding that the grievant had been considered for the positions prior to any other candidates and that the consideration his candidacy received was "genuine," the Arbitrator concluded that the Activity had granted the grievant priority consideration in accordance with Air Force Regulation 40-300 pertaining to such consideration. Award at 12 and 14. Moreover, the Arbitrator found that the grievant was not selected for either position because other candidates were more qualified based upon their answers to the job interview questions. Consequently, the Arbitrator determined that the grievant had received "genuine consideration for the boiler operator positions" and that the Activity had not violated the parties' agreement or applicable regulations when it failed to select the grievant for the vacant positions. Id. at 14. He also determined that he had "no authority to direct the promotion of the [g]rievant." Id. Accordingly, he denied the grievance.
In its first exception, the Union contends that the award "is based on several non-facts which, if properly considered, would have required the arbitrator to conclude that the [g]rievant was qualified for the position in question." Exceptions at 1. In its second exception, the Union contends, citing two arbitral decisions, that the award is contrary to law insofar as the Arbitrator concluded that he had no authority to direct the promotion of the grievant. Id. at 1-2.
In support of its first exception, the Union contends that the Arbitrator erroneously held that he could not enforce the Union's claim that the Activity "was barred by collateral estoppel from challenging the [Judge's] credibility determinations." Union's Brief at 5. In this regard, the Union contends that the Arbitrator ignored the Judge's determinations regarding the selecting official's anti-priority referral statements and that he made his own determination on this issue. If the Arbitrator had properly considered the Judge's credibility findings and had realized he was legally bound by them, the Union asserts, the Arbitrator would have found that the job interview questions were designed to improperly eliminate the grievant from consideration for the vacancies because the selecting official, who the Judge found to have evidenced hostility toward priority candidates, drafted questions that he knew the candidate could not successfully answer. Finally, in support of its second exception, the Union contends that the Arbitrator has the authority to direct the grievant's selection or to extend his priority consideration and that the Arbitrator's failure to provide a remedy in this case is contrary to established law.
IV. Analysis and Conclusions
We conclude that the Authority is bound by its finding in Scott Air Force Base I that Affolter, the selecting official in this case, was biased against priority referral candidates such as the grievant. Therefore, as the Arbitrator has not had an opportunity to determine the impact that this finding has upon the matter in dispute here, we cannot resolve the Union's exceptions to the award upon the record before us.
In Scott Air Force Base I the Authority found that Affolter, the selecting official in this case, made certain statements to Cissell, the grievant, that violated section 7116(a)(1) of the Statute. As pertinent here, the Judge found that Affolter made statements to the effect that he would have hired Cissell for a previous position if Cissell had not been a priority referral candidate and that he would not request authority to fill vacant positions as long as Cissell had a priority referral (second and third statements, id. at 958-59). In our decision, we disagreed with the Judge as to the import of these statements. We found that these statements reflected Affolter's bias against priority referral candidates and could reasonably have coerced an employee in the exercise of the employee's right to use the negotiated grievance procedure in violation of section 7116(a)(1) of the Statute. In this regard, we concluded that it would be reasonable for an employee in Cissell's position to infer from Affolter's statements that there would be no point in exercising his statutorily protected right of filing a grievance in the hope of obtaining priority consideration as a remedy, because management's selecting official had stated that he would not select a priority referral employee. Under these circumstances, we found that the statements, which expressed Affolter's bias against priority referral candidates, interfered with Cissell's section 7102 right to use the negotiated grievance procedure and, therefore, violated section 7116(a)(1) of the Statute.
In its exceptions in the present case, the Union expressly raised the issue of the preclusive effect of the Judge's credibility determinations regarding Affolter's statements in Scott Air Force Base I. We disagree with the Union that the Arbitrator was collaterally estopped at that stage of the proceedings from making his own credibility determinations regarding whether those statements were made and their import. In this regard, we note that the Judge's decision was not final and therefore did not preclude an independent decision maker from reaching a contrary result. In resolving the exceptions in the present case, however, we conclude that the Authority is estopped from reaching a result that is contrary to our findings in Scott Air Force Base I that the statements were made and that they indicated a bias on the part of Affolter against priority referrals. 34 FLRA at 966.
As pertinent here, collateral estoppel, or the more recently coined term of issue preclusion, is a part of the broader doctrine of res judicata that prevents a second litigation of the same issues of fact or law even in connection with a different claim or cause of action. 4 K. Davis, Administrative Law Treatise § 21:2, 49-51 (2d ed. 1983). Res judicata principles have been applied to an administrative agency that is "acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate . . . [in order] to enforce repose." U.S. v. Utah Construction & Mining Co., 384 U.S. 394, 422 (1966).(1)
Before the doctrine of issue preclusion can be applied, however, the courts have determined that certain requirements must be satisfied. These requirements include: (1) the same issue must be involved in both cases; (2) the issue must have been actually litigated in the first case; (3) the resolution of the issue must have been necessary to the decision in the first case; (4) the prior decision on the issue to be precluded must be final;(2) and (5) the party precluded must have been fully represented at the prior hearing on the precluded issue.(3)
In this regard, we find that the issue of Affolter's bias in this case is identical to the bias issue the Authority resolved in Scott Air Force Base I. Thus, in the earlier case, we found, based on certain statements, that "Affolter expressed a bias against priority referrals" and that an employee in Cissell's position could reasonably decide not to file a grievance "because management's selecting official has stated that he will not select an employee who has that status." 34 FLRA at 966. In the present case, the Union argues that the same statements by Affolter that were at issue in Scott Air Force Base I cast doubt on the validity of Affolter's interview questions, which were the basis for his nonselection of Cissell.
We also find that the bias issue was "actually litigated" before the Judge in the unfair labor practice hearing and was necessary to our determination that an unfair labor practice had been committed. Further, we find that the Authority was acting in a judicial capacity when it resolved the issue of bias in the prior case and that decision is administratively final for the purposes of our review of the award in this case. We note that pursuant to section 7123(a) of the Statute a respondent has 60 days to file for judicial review of an order of the Authority. Scott Air Force Base I issued on February 23, 1990, and no petition for review has been filed. Moreover, even where a petition for review has been filed, it will not ordinarily act as a stay of the Authority's order. 5 U.S.C. § 7123(c). Thus, unless and until a Federal court of appeals denies enforcement to a decision of the Authority, that decision must be treated as a final adjudicatory action. Finally, we find that the Activity was fully represented in the prior case and had ample opportunity to contest witness credibility and to refute any adverse evidence presented during the hearing before the Judge.
Consequently, because we find that all of the requirements for issue preclusion have been satisfied in this case, we hold that the Authority is estopped from reaching a different determination on the issue of bias in this case. See Veterans Administration (Washington, D.C.) and Veterans Administration Hospital (Brockton, Massachusetts) and National Association of Government Employees, SEIU, AFL-CIO, 35 FLRA 188 (1990) (Authority's prior negotiability decision precluded relitigation of same issue in subsequent unfair labor practice case).
In denying the grievance, the Arbitrator expressly ignored the Judge's findings and made his own determinations on the same issues. Award at 10. Specifically, the Arbitrator failed to discuss the Judge's findings that in talking to the grievant about his failure to be selected for a previous WG-10 position in April, 1987, Affolter stated that: (1) he would have hired the grievant for the position if he had not been a priority referral candidate and (2) he would not request authority to fill vacant WG-10 positions as long as the grievant had a priority referral. Both statements were found to demonstrate Affolter's bias against priority referral candidates in Scott Air Force Base I. We recognize that the Arbitrator did not have the benefit of our decision when he issued his award. Therefore, we conclude that, before we can resolve exceptions to the award in this case, the Arbitrator should have an opportunity to interpret and clarify his award in light of our decision in Scott Air Force Base I.
Specifically, we will direct the parties to request that the Arbitrator interpret and clarify his award in light of our finding that Affolter was biased against the grievant as a priority referral candidate. Because Affolter, the selecting official in this case, was biased against the grievant as a priority referral candidate, it is possible that such bias might have entered into the formulation of the interview questions that served to understate the grievant's qualifications for the vacant positions. Therefore, the parties should request that the Arbitrator reexamine the interview questions used to eliminate the grievant from consideration for the positions in issue. Keeping our finding in mind, the Arbitrator should determine if these questions were fair and permitted the Activity to consider the grievant's qualifications objectively or, as the Union contends, Affolter purposely drafted questions that he knew the grievant could not answer so as to preclude the grievant's selection. Union's Brief in Support of Exceptions at 5. If the Arbitrator determines that the interview questions were not fair, he should further determine whether they tainted the selection process.
Finally, regarding the Union's contention in its exceptions that the Arbitrator has the authority to direct the grievant's promotion, we have previously held that management's right under the Statute to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. U.S. Naval Ordnance Station, Louisville, Kentucky and International Association of Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA 382, 383 (1986). Thus, in order to require an agency to select a particular employee for a promotion, an arbitrator must reconstruct what the responsible selecting official would have done if the unwarranted agency actions had not occurred and must find on the basis of that reconstruction that the responsible selecting official would have selected the grievant but for the unwarranted actions. Id.
If an arbitrator finds that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be promoted, he or she may properly order an employee to be selected for promotion. Compare American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 94-95 (1988) (after reconstructing the selection action the arbitrator made the required finding that but for the unwarranted action, the employee would have been selected for promotion) with Association of Civilian Technicians and Pennsylvania National Guard, 30 FLRA 779, 781-82 (1987) (arbitrator did not make required finding). In this case, the Arbitrator concluded that there were no unwarranted actions on the part of the Activity that resulted in the nonselection of the grievant. Accordingly, the Arbitrator did not discuss or reach the issue of whether the grievant would have been selected for the position.
For the reasons discussed above, we are unable to determine from the present record if the award is deficient under any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we will remand the award to the parties and direct them to resubmit the award to the Arbitrator for a clarification and interpretation of the award in accordance with this decision.
Pursuant to section 2425.4 of our Rules and Regulations, we remand the Arbitrator's award to the parties with the direction that they resubmit the award, either jointly or separately, to the Arbitrator for a clarification and interpretation of the award. The submission should request expedited consideration of this matter from the Arbitrator and indicate that it is for the limited purpose of having the Arbitrator clarify and interpret his award to specify (1) the effect, if any, of the Authority's finding that Affolter was biased against priority consideration or referral candidates in Scott Air Force Base I on his determination regarding the fairness, objectivity and utility of the interview questions used to rate and rank the grievant for the positions at issue; and (2) what, if any other effect, Affolter's bias had on the selection process. If the Arbitrator finds that Affolter's bias had an adverse effect on the selection process, he should reconstruct the selection process to determine if the grievant would have been selected for one of the positions had Affolter not been biased. If the Arbitrator finds, under these circumstances, that the grievant would have been selected for one of the positions, he may provide an appropriate remedy. On receipt of the award as clarified by the Arbitrator, either party may file exceptions with the Authority.
(If blank, the decision does not have footnotes.)
1. See also 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4475, 762-63, n.2 (1981); Department of the Treasury v. FLRA, 762 F.2d 1119, 1121 (D.C. Cir. 1985).
2. See, for example, Continental Can Co., U.S.A. v. Marshall, 603 F.2d 590, 594-95 (7th Cir. 1979).
3. See, for example, Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988); Mother's Restaurant, Inc. v. Mama's Pizza, Inc., 723 F.2d 1566, 1569 (Fed. Cir. 1983).