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The decision of the Authority follows:
FEDERAL LABOR RELATIONS AUTHORITY
OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF LABOR
January 17, 1991
Before Chairman McKee and Member Talkin.1/
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles B. Craver filed by the Agency 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 Union filed an opposition to the exceptions. The motion of the Disabled Veterans of America (DAV) to file an amicus curiae brief was granted and the DAV filed an amicus brief.
A grievance was filed by two grievants, both of whom are 30 percent or more compensable disabled Vietnam-era veterans, over the Agency's selection of a non-veteran for a GM-14 position. The Arbitrator found that the selection violated 38 U.S.C. § 2014 and, to remedy the violation, the Arbitrator ordered the Agency to provide the grievants priority consideration for the next GS/GM-14 position for which they apply and are qualified. For the following reasons, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The Agency issued a vacancy announcement for a GM-14/15 Program Analyst position in the Office of the Assistant Secretary for Veterans' Employment and Training Services (VETS). The two grievants and the selectee were the only applicants for the position.
The grievants filed a grievance alleging that the "Agency selected a non-veteran . . . when qualified candidates with 30% disability Veterans status were available[,]" and that there was an "[i]mproper personnel practice in creating the certificate of eligibles." Opposition at 3. At the arbitration hearing, "the parties jointly agreed to reduce the issues to be decided . . . to matters concerning the application of 38 U.S.C. § 2014 . . . ." Exceptions at 2.
The Arbitrator noted that Article 3, section 1 of the parties' agreement provides that in administering the agreement, "the parties are governed by existing or future laws and regulations. . . ." Award at 2. According to the Arbitrator, the Agency "conceded 'that 38 U.S.C. § 2014 is incorporated into the collective bargaining agreement pursuant to Article 3, Section 1.'" Id. at 6.
The Arbitrator rejected the Agency's contention that the grievance was not arbitrable because "'non-selection from a properly prepared merit staffing certificate'" is excluded from the scope of the grievance/arbitration procedures of the parties' agreement. Id. at 4 (quoting Article 14, Section 3(b)(4) of the parties' agreement). The Arbitrator concluded that the grievants were not "challenging their non-selection as such[,]" but were "instead challenging the alleged failure of the Agency to apply 38 U.S.C. § 2014 . . . ." Id. at 6.
The Arbitrator also rejected the Agency's contention that section 7106(a)(2)(C) of the Statute "reserves to management discretion the right to fill positions," because the Arbitrator found that an agency's authority under section 7106(a)(2)(C) "must be exercised 'in accordance with applicable laws.'" Id. at 6-7 (quoting 5 U.S.C. § 7106; emphasis omitted). The Arbitrator concluded that as the "Union [had] successfully obtained a provision incorporating 38 U.S.C. § 2014" into the parties' agreement, the grievants had a right under the parties' agreement to file a grievance questioning the application of 38 U.S.C. § 2014 to their situation. Id. at 7.
The Arbitrator concluded that the Agency's contention that 38 U.S.C. § 2014 "only provides a preference for disabled veterans with respect to entry level positions" was "contrary to the express language of the statute [which] not only spoke in terms of 'employment,' but also in terms of 'job advancement.'" Id. at 11. According to the Arbitrator, the Supreme Court, in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), "sustained the constitutionality of laws providing an absolute, lifetime preference for veterans." Award at 12.
The Arbitrator rejected the Union's argument that 38 U.S.C. § 2014 "provides qualified disabled veterans with an absolute promotional preference." Id. The Arbitrator stated that "[w]here Congress has intended such an absolute employment preference, it has expressly done so[,]" citing 5 U.S.C. § 3309. Id. The Arbitrator concluded, instead, that 38 U.S.C. § 2014 "clearly obliges selecting officials to prefer disabled veterans where the qualifications of the different candidates are found to be relatively equal." Id. at 13 (emphasis omitted).
The Arbitrator stated that as the qualifications of the three candidates were "relatively equal," he did not need to decide "the exact point at which a selecting official could appropriately choose a more qualified non-veteran over [a] less qualified disabled veteran." Id. The Arbitrator concluded, however, that if the selecting official had "afforded the two Grievants the additional consideration Congress mandated[,] . . . he would have been statutorily obliged to select one of them for the promotion in dispute." Id. at 13-14.
As a remedy, the Arbitrator ordered the Agency to grant the grievants "priority consideration for the next GS/GM-14 position for which [they] apply and are qualified." Id. at 16. In addition, the Arbitrator ordered that for any promotion action involving the selectee and one or both of the grievants, the Agency was not to "consider the experience gained by [the selectee] when assessing the qualifications of the competing candidates." Id. at 17.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the Arbitrator's award is contrary to law because 38 U.S.C. § 2014 "does not require that the [A]gency grant preferential treatment to disabled veterans in connection with selection for promotion." Exceptions at 4 (emphasis omitted). The Agency argues that the Arbitrator "has seized upon what is merely an opening policy statement . . . and read into it a requirement that all executive agencies must accord [eligible veterans] preferential treatment . . . ." Id. at 8.
The Agency notes that although Congress amended 38 U.S.C. § 2014 in 1980 to permit the Veterans Administration "to give preference in VA hiring to qualified disabled and Vietnam-era veterans[,]" Congress did not extend "this preference to any agency other than the Veterans Administration" and the amendment did not even "require that the preference be given" by the Veterans Administration. Id. at 9. The Agency further notes that where Congress "intended that an employment preference be accorded to veterans, it provided for such a preference expressly" such as in 5 U.S.C. § 3309, where veterans earn additional points "above their earned rating in connection with selection . . . ." Id. Finally, the Agency contends that the Office of Personnel Management (OPM) "has not issued regulations requiring the preference" found by the Arbitrator." Id. at 10.
The Agency also contends that the Arbitrator's award requires the Agency to make promotion decisions in violation of Federal law. The Agency cites, in this regard, 5 U.S.C. § 2301(b) and (b)(1), as well as 5 U.S.C. § 2302(b)(6). The Agency also asserts that the award violates its right to select employees for promotion under section 7106(a)(2)(C) of the Statute because "management's right to make a selection for promotion can only be abridged by an award of an arbitrator if the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected." Id. at 13. The Agency asserts that there was no finding of an improper agency action in this case.
Finally, the Agency asserts that the award is deficient because the Arbitrator exceeded his authority and because the award is based on nonfacts. With respect to the former argument, the Agency claims that by prohibiting the Agency from considering the selectee's experience in the position involved in this grievance in any future promotion action involving the selectee and either of the grievants, the award affects "a person who did not file a grievance, did not have the union file a grievance for her, and was outside the scope of the grievance at issue." Id. at 13-14. As for the latter argument, the Agency contends that because "the overwhelming weight of the evidence establishes that . . . the selecting official believed that [the selectee] was the best qualified for the job[,]" the Arbitrator's "finding that the [three] candidates were 'relatively equal' in their qualifications was clearly erroneous." Id. at 15-16.
B. The Union's Opposition
The Union contends that the award is not contrary to law because "38 U.S.C. § 2014 requires disabled veterans be accorded preferential treatment . . . ." Opposition at 5 (emphasis omitted). The Union contends, in this regard, that the Arbitrator's award is not contrary to 5 U.S.C. § 2302(b), which "prohibits preferences or advantages not authorized by law, rule, or regulation" because 38 U.S.C. § 2014 "is a law requiring preference to disabled veterans and veterans of the Vietnam era . . . ." Id. at 6-7. Similarly, the Union contends that the award is not contrary to section 7106(a)(2)(C) of the Statute because that section requires that management rights be exercised "'in accordance with applicable law.'" Id. at 7.
Finally, the Union asserts that the Agency's exception alleging that the award is based on nonfacts "amounts to nothing more than disagreement with the Arbitrator's conclusions and award and an attempt to relitigate the issues." Id. at 8. The Union asserts also that the Arbitrator did not exceed his authority in fashioning a remedy. The Union notes that the courts have found that "[a]rbitrators have broad discretion in fashioning a just award which takes account of the parties' mutual interests and conduct." Id.
C. The Amicus Curiae Brief
The DAV asserts that 38 U.S.C. § 2014 "mandates affirmative action in both hiring and promotion of disabled veterans." Amicus Brief at 2. The DAV notes that in 1972, Congress required Government contractors to "'give special emphasis to the employment of' disabled veterans and veterans of the Vietnam era." Id. (quoting 38 U.S.C. § 2012(a)). The DAV also notes that in 1973, Congress provided that "agencies of the executive branch shall formulate affirmative action plans for the 'hiring, placement, and advancement' of handicapped individuals." Id. (quoting 29 U.S.C. § 791(b)). According to the DAV, the 1973 legislation "made clear that the purpose of Congress was to address the promotion as well as the employment of disabled and Vietnam era veterans." Id. at 3.
The DAV asserts that different rights are provided by 38 U.S.C. §§ 2014(b), which addresses Vietnam era veterans, and 2014(c), which addresses disabled veterans. The DAV contends that although subsection (b) relates solely to readjustment appointments, "[s]ubsection (c) provides that executive agencies shall formulate affirmative action plans for the 'hiring, placement, and advancement' of disabled veterans." Id. at 4. The DAV notes that subsection (c) "requires that agencies develop affirmative action plans to carry out for disabled veterans affirmative action 'such as' that required by 29 U.S.C. § 791(b) for handicapped individuals." Id. at 5. The DAV contends that in Allen v. Heckler, 780 F.2d 64, 67 (D.C. Cir. 1985), the court held that section 791(b) requires agencies to take affirmative action to both hire and promote handicapped workers. The DAV concludes that it "is inconceivable that section 2014(c) could be any narrower than section 791(b)." Id. at 6.
The DAV asserts that the "affirmative action requirement" of section 2014(c) does not violate Federal law. The DAV asserts, in this regard, that 5 U.S.C. § 2302(b)(6) "prohibits only 'preference(s) or advantage(s) not authorized by law, rule, or regulation'" and "[s]ection 2014(c) is an applicable law that requires affirmative action in the promotion of disabled veterans." Id. at 9. Similarly, the DAV asserts that section 2014(c) does not conflict with section 7106(a)(2)(C) of the Statute because "the deference accorded . . . management officials by section 7106(a)(2) is qualified by the phrase 'in accordance with applicable law'" and "section 2014(c) "is applicable law." Id. at 10.
IV. Analysis and Conclusions
A. Analytical Framework
1. Section 7106(a)(2)(C) of the Statute Section 7106(a)(2)(C) provides that nothing in the Statute shall affect the authority of a management official "in accordance with applicable laws":
(C) with respect to filling positions, to make selections for appointments from -- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source[.]
It is clear and long-established that section 7106(a)(2)(C) encompasses an agency's right to make the actual selections for appointments. See, for example, Department of Defense v. FLRA, 659 F.2d 1140, 1162 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (court held that the intent of section 7106(a)(2)(C) was to make the standards, criteria, and procedures for establishing promotion certificates negotiable, "while ensuring management's right to make the actual selection . . . ." (quoting with added emphasis 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978)) (footnote omitted). See also Department of Agriculture, Food and Nutrition Service and National Treasury Employees Union, 35 FLRA 1154, 1159-60 (1990) ("Under competitive selection procedures, management must maintain the right and discretion to make the actual selection from the promotion certificate or to make the appointment from any appropriate source.") (citation omitted). Consistent with section 7106(a)(2)(C), bargaining proposals requiring the selection of particular individuals for promotion directly interfere with an agency's right to select and are negotiable only if they constitute appropriate arrangements under section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 42-45 (1987).
By contrast, where exceptions allege that an arbitration award enforcing a provision agreed upon by the parties is contrary to a management right under section 7106, the exceptions are denied provided: (1) the negotiated provision constitutes an arrangement for employees adversely affected by the exercise of a management right; (2) as interpreted and applied by the arbitrator, the provision does not abrogate the exercise of that right; and (3) the arbitrator's interpretation draws its essence from the parties' agreement. Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-17 (1990) (Customs). Applying the framework set forth in Customs, the Authority has denied exceptions to an award enforcing a negotiated provision requiring the agency to select certain employees for promotion. U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816, 821-23 (1990) (SSA).
It is also clear that, consistent with the plain wording of section 7106 of the Statute, the Agency's right under section 7106(a)(2)(C) must be exercised in accordance with applicable laws. See generally, Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). Such applicable laws are enforceable through grievance and arbitration procedures negotiated under the Statute. See id. at 1628 (the Court held that agency decisions made pursuant to section 7106 of the Statute are removed "from the coverage of the entire [Statute]," including the scope of a negotiated grievance and arbitration procedure, "but only to the extent the decisions are in accordance with applicable laws.") (emphasis in original).
As noted previously, under the framework established in Customs, certain negotiated provisions requiring an agency to select particular employees for positions are enforceable in arbitration. An appropriate remedy for the violation of such a provision is, in certain circumstances, an order requiring the selection or promotion of an employee. See SSA, 37 FLRA at 823-27 (award requiring prospective promotion of grievant, as modified by the Authority to require promotion to next available appropriate vacancy, upheld). In addition, an arbitrator properly may order an agency to select or promote an employee when the arbitrator determines that the employee was affected by improper agency action that directly resulted in the failure of the employee to be promoted. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1421-22 (1990) (award requiring retroactive promotion, with backpay, of grievant who would have been selected for promotion but for agency's discrimination on the basis of grievant's race and national origin upheld). See also SSA, 37 FLRA at 823 n.*.
Where there is no basis for an award of a promotion, retroactive or prospective, but where an agency violates provisions of law, rule, regulation or negotiated agreement in a selection action, other remedies, such as awarding priority consideration or requiring the agency to rerun the selection action, are appropriate. See, for example, Internal Revenue Service, Des Moines, Iowa District and National Treasury Employees Union, Chapter 4, 35 FLRA 144, 151 (1990) (where agency failed properly to consider grievant's prior experience in evaluating the grievant for promotion, award granting grievant priority consideration upheld). However, when an agency exercises its right to select in accordance with law, rule, regulation, and applicable provisions of a collective bargaining agreement, there is no basis on which to grant a remedy. Pennsylvania National Guard and Association of Civilian Technicians, 35 FLRA 478, 490 (1990) (Pennsylvania National Guard).
B. Application of the Analytical Framework in This Case The award does not require the Agency to select, or not select, any particular individuals for promotion. Instead, as his award, the Arbitrator required the Agency, as relevant here, to accord the grievants priority consideration for the next GS/GM-14 position for which they apply and are qualified. As noted previously, this remedy is appropriate to remedy violations of law, rule, regulation, or collective bargaining agreements. 2/
In the absence of an assertion to the contrary, and based on the record as a whole, we conclude that the award does not constitute the enforcement of, or the remedy for a violation of, the parties' collective bargaining agreement. Instead, as stated by the Arbitrator, the "fundamental issue . . . concerns the applicability of 38 U.S.C. § 2014 to promotional opportunities." Award at 1. Moreover, the award is based on the Arbitrator's finding that the Agency "violated the rights extended to the Grievants in 38 U.S.C. § 2014 . . . ." Id. at 16. Accordingly, and in agreement with the Arbitrator and the parties, it is necessary to determine whether the Agency's failure to select one of the grievants violated their rights under 38 U.S.C. § 2014.
38 U.S.C. § 2014, as amended, provides, in pertinent part 3/: § 2014. Employment within the Federal Government (a)(1) It is the policy of the United States and the purpose of this section to promote the maximum of employment and job advancement opportunities within the Federal Government for certain veterans of the Vietnam era and veterans of the post-Vietnam era who are qualified for such employment and advancement. . . . . (b)(1) To further the policy stated in subsection (a) of this section, veterans referred to in paragraph (2) of this subsection shall be eligible, in accordance with regulations which the Office of Personnel Management shall prescribe, for veterans readjustment appointments, and for subsequent career-conditional appointments. . . . (A) such an appointment may be made up to and including the level GS-9 or its equivalent . . . . . . . . (c) Each agency shall include in its affirmative action plan for the hiring, placement, and advancement of handicapped individuals in such agency as required by section 501(b) of the Rehabilitation Act of 1973 (29 U.S.C. 791(b)), a separate specification of plans . . . to promote and carry out such affirmative action with
Subsection (a)(1) was amended to include the reference to veterans of the post-Vietnam era and subsection (b) was amended to extend the authority to make veterans readjustment appointments up to December 31, 1993. See also S. Rep. No. 101-126, 101st Cong., 1st Sess. 233-36 (1989). respect to disabled veterans in order to achieve the purpose of this section.
We reject, at the outset, the Agency's contention that the Arbitrator relied entirely on subsection (a) in reaching his conclusion that 38 U.S.C. § 2014 requires preference for promotions involving disabled veterans. Although the Arbitrator did not specifically reference any portion of 38 U.S.C. § 2014 other than subsection (a), he concluded that "the unequivocal mandate of § 2014 for government agencies to maximize the advancement of qualified disabled veterans . . . clearly obliges selecting officials to prefer disabled veterans where the qualifications of the different candidates are found to be relatively equal." Award at 13 (emphasis in original). We will, consistent with the Arbitrator's general references to section 2014, examine that section as a whole to determine whether the award is deficient.
Examining 38 U.S.C. § 2014 as a whole, we conclude first that subsection (a) does not require the selection of disabled veterans for position for which they are as qualified as other candidates. It is clear that, as found by the Arbitrator, subsection (a)(1) requires the Agency to "promote the maximum of employment and job advancement opportunities within the Federal Government" for certain veterans. See Jakes v. Veterans Administration, 793 F.2d 293, 295 (Fed. Cir. 1986) (court stated that purpose of section 2014 was to provide veterans with "job opportunities which, because of lack of training and education, might not otherwise be available."). We find nothing in the plain wording of subsection (a)(1), however, or in the legislative history of that section, to support the Arbitrator's conclusion that if the selecting official had afforded "the two Grievants the additional consideration Congress mandated under 38 U.S.C. § 2014, he would have been statutorily obliged to select one of them . . . ." Award at 13-14.
We note, in this regard, that subsection (a) sets forth the "policy" of the United States and the "purpose" of section 2014 as a whole. Subsection (a) does not, however, require or prohibit any particular actions with respect to that policy and purpose. Instead, subsections (b) and (c) of section 2014 set forth the actions to be taken to accomplish the policy and purpose in subsection (a). As subsection (a) does not require the selection of disabled veterans in the circumstances of this case, the Agency's failure to select one of the grievants for the disputed position in this case does not violate subsection (a).
Next, it is apparent that subsection (b) does not apply in this case. Instead, we agree with the DAV that subsection (b) is concerned "only with readjustment appointments up to [the] level GS-9." Amicus Brief at 8. See Jakes v. Veterans Administration, 793 F.2d at 295 (court stated that the purpose of veterans readjustment appointments is to "allow the veteran a two-year period of time in which to receive additional education or training.") (citation omitted). There is no indication that the grievants in this case sought a readjustment appointment to the disputed position and, in any event, the position was at the GS/GM-14 level. As such, the Agency's actions in this case did not violate subsection (b).
Third, we agree with the DAV that the portion of section 2014 most applicable to the grievance in this case is subsection (c). In particular, although section 2014 generally implements the Veterans Readjustment Act of 1973, as amended, by providing for veterans readjustment appointments, subsection (c) has a distinct mandate: it requires each Federal agency to include in its "affirmative action plan for the hiring, placement, and advancement of handicapped individuals . . . a separate specification of plans . . . to promote and carry out such affirmative action with respect to disabled veterans . . . ." As there is no dispute in this case that the grievants are disabled veterans, within the meaning of subsection (c), that subsection applies in this case.
Subsection (c) does not require the selection of disabled veterans for positions, however. Although subsection (c) requires agencies to develop affirmative action plans for the hiring, placement and advancement of handicapped individuals, it does not specify the content of those plans. Information concerning the content of the Agency's affirmative action plan is not in the record before us. It is not asserted, however, and there is no other basis on which to conclude, that the Agency's plan requires the selection of disabled veterans such as the grievants in this case.
Subsection (c) provides also that the affirmative action plan devised for disabled veterans "shall be consistent" with the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791(b). Section 791(b) provides, in pertinent part:
Each department, agency, and instrumentality . . . in the executive branch shall . . . submit . . . an affirmative action program plan for the hiring, placement, and advancement of individuals with handicaps in such department, agency, or instrumentality. Such plan shall include a description of the extent to which and methods whereby the special needs of employees with handicaps are being met.
The Rehabilitation Act of 1973 reflects Congressional recognition "of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps." Southwestern Community College v. Davis, 442 U.S. 397, 410 (1979). In particular, although section 501 of the Act, 29 U.S.C. § 791, encourages entities such as state agencies to adopt and implement affirmative action policies and procedures, section 501(b) of the Act, 29 U.S.C. § 791(b), "requires" Federal agencies "'to take affirmative action . . . .'" Id. (quoting 5 U.S.C. § 791(b)). Indeed, 29 U.S.C. 791 "demonstrates that Congress intended that the federal government be a model employer of the handicapped." Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir. 1985) (citation omitted). In this regard, regulations implementing 29 U.S.C. § 791, promulgated by the Equal Employment Opportunity Commission, provide:
General policy. Agencies shall give full consideration to the hiring, placement, and advancement of qualified mentally and physically handicapped persons. The Federal Government shall become a model employer of handicapped individuals. An agency shall not discriminate against a qualified physically or mentally handicapped person.
29 C.F.R. § 1613.703. See also 5 C.F.R. § 720.304(e) (regulations issued by the Office of Personnel Management under authority of 29 U.S.C. 791(b) provide that each agency's affirmative action plan shall, "at a minimum, contain: (1) A statement of the agency's policy with regard to the employment and advancement of disabled veterans . . . [and] (5) [a] description of how the agency will provide or improve internal advancement opportunities for disabled veterans.").
Consistent with the foregoing, it is clear that the requirements of 29 U.S.C. § 791(b), incorporated in 38 U.S.C. 2014(c), "impose a duty upon federal agencies to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion." Ryan v. Federal Deposit Insurance Corporation, 565 F.2d 762, 763 (D.C. Cir. 1977). See also Gardner v. Morris, 752 F.2d at 1280. It is also clear, however, that, as plainly worded, 29 U.S.C. § 791(b) does not require Federal agency managers to select disabled veterans for promotion in the circumstances discussed by the Arbitrator. In fact, section 791(b) "does not specifically describe the types of affirmative action programs that would comply with the statute[.]" Id.
Similarly, the parties have not cited, and our research fails to disclose, any judicial or other precedent interpreting either 38 U.S.C. § 2014 or 29 U.S.C. § 791(b) as requiring the selection of disabled veterans for promotion. We note particularly in this regard, as did the DAV in its amicus brief, the court's decision in Allen v. Heckler, 780 F.2d 64 (D.C. Cir. 1985).