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The decision of the Authority follows:
41 FLRA NO. 65
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Russell C. Neas. The Arbitrator directed that the grievant be promoted retroactively, with backpay, to the position of veterans' claims examiner.
The Agency filed exceptions to the award 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 Agency's exceptions.
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 grievant, a GS-4 clerk-typist and a Vietnam-era veteran, sought promotion to a GS-5 veterans' claims examiner position. The grievant was not selected, and the Union filed a grievance on her behalf. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows:
Did the Agency violate the Master Labor Agreement or any applicable laws, rules or regulations in its selection of candidates for promotion to the position of Veterans Claims Examiner? If so, what shall be the remedy?
Award at 11.
As relevant here, the Arbitrator found that the Agency "misinterpreted and failed to comply with the intent of" 38 U.S.C. § 2014(g) (section 2014) in the grievant's nonselection.(1) Id. at 40. According to the Arbitrator, the intent of section 2014 was to give Vietnam-era veterans preference for employment as veterans' claims examiners. The Arbitrator found that neither section 2014 nor the Agency's implementing regulation, DVB Circular 20-83-12 (Circular), defined preference.(2) The Arbitrator also found that the Circular was "patently ambiguous." Id. at 37. In particular, the Arbitrator stated that the Circular did not indicate whether preference applied only to the rating and referral of candidates to the selecting official "or continue[d] throughout the selection process." Id.
The Arbitrator concluded that section 2014 did not "require the referral or guarantee the selection of either a . . . Vietnam era veteran." Id. at 38-39. The Arbitrator also concluded, however, that consistent with the policy of section 2014 to maximize employment opportunities for Vietnam-era veterans, the Circular required that "preference extends beyond the final ratings to the final selection." Id. at 39.
The Arbitrator found that, in addition to identifying the grievant as eligible for preference and granting her additional points in rating her for promotion, the selecting official should have given the grievant "some consideration" for her military experience. Id. at 40. The Arbitrator concluded that such consideration "probably would have offset the alleged superiority of at least one, if not all, of the four selected candidates." Id. Accordingly, the Arbitrator directed that the grievant be promoted to the position of veterans' claims examiner, effective on the same date as that of the selected candidates, with full backpay.
III. The Agency's Exceptions
The Agency contends that "the award is contrary to law in that it usurps discretion accorded the Secretary [of Veterans Affairs] under law." Exceptions at 3. The Agency asserts that section 2014 "gives the Secretary of Veterans Affairs the sole discretion to give preference to Vietnam era veterans" in filling certain positions at the Agency, including that of veterans' claims examiner. Id. at 4. The Agency argues that that statute "does not require that preference be given, and does not prescribe the manner in which such preference, if exercised, will be applied." Id.
In "exercising its discretion" to give preference under section 2014, the Agency contends that it issued DVB Circular 20-18-12. Id. The Agency asserts that the Circular, which is a regulation implementing veterans preference, "does not impose any other requirements on management beyond adding five percentage points [to a veteran's rating] and identifying veterans eligible for consideration." Id. at 6. The Agency states that "the requisite percentage points were awarded" to the grievant, and argues that the grievant was properly identified as a veteran. Id.
The Agency asserts that the Arbitrator substituted his judgment for that of the Agency when he interpreted the requirements of section 2014 and the Circular. According to the Agency, "[t]he Arbitrator's conclusion that the [Agency] misinterpreted the law and Circular by not applying preference beyond the ranking process is not required" by 38 U.S.C. § 2014(g). Id. at 7.
IV. The Union's Opposition
The Union contends that the Agency's "present position is contrary to the law" and "is a reversal of the position" the Agency held in a prior arbitration proceeding. Opposition at 4. The Union asserts that the Agency argued in the earlier proceeding that "it was not enough just to get [Vietnam-era veterans] on the list for consideration, but the intent was to promote them into the jobs Congress had identified." Id. at 3.
V. Analysis and Conclusions
An arbitrator may, consistent with an agency's right to make selections under section 7106(a)(2)(C) of the Statute, properly award a grievant a promotion in circumstances where the award results from enforcement of a contractual arrangement. See 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). See also American Federation of Government Employees, Local 12 and U.S. Department of Labor, 38 FLRA 1573, 1580 (1991) (DOL). An arbitrator also may properly 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 id. See also U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1421-22 (1990). Although other remedies, including priority consideration, are appropriate in certain circumstances, 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." DOL, 38 FLRA at 1581 (citing Pennsylvania National Guard and Association of Civilian Technicians, 35 FLRA 478, 490 (1990) (Pennsylvania Guard)).
In the absence of an assertion to the contrary, and based on the entire record, we conclude that the award in this case does not constitute the enforcement of, or the remedy for a violation of, the parties' collective bargaining agreement. Compare SSA, 37 FLRA at 821-23. It is unnecessary, therefore, to apply the framework set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-17 (1990).
It is unclear, however, whether the Arbitrator based his award on findings that the Agency violated 38 U.S.C. § 2014(g), its Circular, or both. We will, therefore, analyze both section 2014 and the Circular.
As noted previously, section 2014(g) provides that the Agency Administrator "may give preference" to qualified Vietnam-era veterans for claims examiner positions. See n.1. As the Arbitrator acknowledged, section 2014(g) "does not define 'preference.'" Award at 17. The Arbitrator concluded, in this regard, that section 2014(g) "does not require the referral or guarantee the selection of" qualified veterans. Id. at 38. No exceptions have been filed to this conclusion and we accept it for the purposes of our decision. Compare DOL, 39 FLRA at 1581-84 (Authority held that 38 U.S.C. § 2014(a), (b), and (c) do not require the selection of qualified veterans).
The Arbitrator also noted, however, that consistent with section 2014(a), the policy of the United States with regard to disabled and Vietnam-era veterans is to "promote the maximum of employment and job advancement opportunities . . . ." Award at 39 (quoting another arbitrator's award). See also n.1 at 2. According to the Arbitrator:
If the objective is "maximum opportunity," it seems to logically follow that merely making the referral list represents minimum opportunity, whereas giving preference to a Vietnam era veteran over other equally and highly qualified non-veterans (not necessarily the best of the best as perceived by the selecting official) would satisfy the public policy of maximum opportunity. (emphasis in original).
Award at 39.
When this portion of the Arbitrator's opinion is read in conjunction with the Arbitrator's conclusion and award, it appears that the Arbitrator held that section 2014(g), interpreted in light of section 2014(a), required the Agency to consider the grievant's military experience in making its selection decision. That is, the Arbitrator appears to hold that the Agency, in addition to satisfying certain requirements set forth in its Circular, was required by section 2014(g) to accord the grievant additional consideration of, or preference for, her military experience in making its selection decision.
We find no such requirement in section 2014(g). We note, in this regard, that although section 2014(a) sets forth the policy and purpose of section 2014 as a whole, subsection (a) does not "require or prohibit any particular actions with respect to that policy and purpose." DOL, 39 FLRA at 1583. Moreover, nothing in the plain wording of section 2014(g), or its legislative history, supports a conclusion that, as relevant here, the Agency is required to take any particular actions with respect to the consideration of qualified veterans for claims examiner positions. Indeed, section 2014(g) states only that the Agency Administrator "may give preference" to qualified veterans for these positions. See n.1 at 2. See also S. Rep. No. 96-746, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Admin. News 4555, 4646 (explanatory statement accompanying the Veterans Rehabilitation and Education Amendments of 1980, Pub. L. 96-466, which amended section 2014 to include subsection (g), states that subsection (g) provides "that the Administrator may give preference in VA hiring to qualified . . . veterans for the positions of veterans claims examiners . . . .").
No authority is cited, or is otherwise apparent to us, for the proposition that section 2014(g) required the Agency to accord the grievant preferential consideration of her military experience in making the disputed selection decision. Accordingly, and consistent with the plain wording of section 2014(g), we conclude that the Agency's failure to do so did not violate section 2014(g).
The Arbitrator also appears to hold that the Agency violated DVB Circular 20-83-12 in failing to properly consider the grievant's military experience. In particular, the Arbitrator held that the Circular was ambiguous and that although it could be construed to require the Agency only to add points to the grievant's rating, it also could be construed to require preference extending "beyond the final ratings to the final selection." Award at 39. Relying, in part, on a previous award by another arbitrator, the Arbitrator concluded that construing the Circular as extending preference beyond the rating process was consistent with the policy and purpose of section 2014(a). Accordingly, read in light of the Arbitrator's conclusion and award, it appears that the Arbitrator held that the Agency was required by the Circular to accord the grievant preferential consideration based upon her military experience in the selection decision.
We conclude that the Circular does not require such preferential consideration. In this regard, we note three things.
First, the Circular clearly requires the Agency to add points to eligible employees' ratings "prior to referral to the selecting official[.]" See n.2 at 2. That is, the Circular's first requirement expressly applies only to the rating process. There is no dispute in this case that the Agency properly added points to the grievant's rating.
Second, the Circular requires that qualified employees be "appropriately identified as being eligible for preferential consideration . . . ." Id. (emphasis added). The requirement that certain employees be identified as eligible for preferential consideration does not require, implicitly or explicitly, that the Agency accord such employees preferential consideration during the selection process. There is, in this regard, also no dispute that the grievant properly was identified as eligible for preferential consideration.
Third, the Circular requires that "qualified eligibles entitled to preference under [38 U.S.C. § 2014(g)] will be rated and referred along with other qualified nonpreference eligibles in accordance with merit principles." Id. That is, the Circular expressly requires all qualified employees, whether or not they are entitled to preference under section 2014(g), to be referred to a selecting official. As such, this requirement buttresses our conclusion that the Circular does not require preferential consideration during the selection process.
When read as a whole, we conclude that the Circular did not require the Agency to grant the grievant preferential consideration of her military experience during the selection process for the disputed position. As noted above, it is clear and undisputed that the Agency both added points to the grievant's rating and properly identified her as eligible for preferential consideration. We find nothing in the Circular which required any further actions by the Agency. We conclude, therefore, that the Agency did not violate the Circular in this case.
There is no basis on which to conclude that the Agency was required, under section 2014(g) and/or the Circular, to grant the grievant preferential consideration based upon her military experience in the disputed selection action. The Arbitrator's award of a retroactive promotion is based solely on his findings that the Agency failed to satisfy such requirements. Accordingly, the award is deficient as contrary to the Agency's right to select under section 7106(a)(2)(C) of the Statute and will be set aside. See DOL, 38 FLRA at 1587; Pennsylvania Guard, 35 FLRA at 490.
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)
1. 38 U.S.C. § 2014 states in pertinent part:
(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.
. . . .
(g) To further the policy stated in subsection (a) of this section, the Administrator may give preference to qualified special disabled veterans and qualified veterans of the Vietnam era for employment in the Veterans' Administration as . . . veterans' claims examiners . . . .
2. DVB Circular 20-83-12 states in pertinent part:
6. INSERVICE ACTIONS
a. The [Agency] General Counsel has also determined that [38 U.S.C. § 2014(g)] applies to initial appointments, or, for that matter, to any personnel action that results in selecting candidates . . . . Therefore, in filling [covered] positions through competitive promotion procedures, qualified eligibles entitled to preference under this law will be rated and referred along with other qualified nonpreference eligibles in accordance with merit principles. . . . However, in determining the final ratings prior to referral to the selecting official, the following criteria will apply:
(1) Ten percent of the maximum points possible will be added to the ratings of qualified veterans with at least a 30% compensable disability and [Vietnam-era veterans] with a compensable service-connected disability of 10% or more.
(2) Five percent of the maximum points possible will be added to the ratings of qualified Vietnam era veterans unless awarded points under subparagraph (1) above.
b. [Vietnam-era veterans] and special disabled veterans referred for promotion consideration will be appropriately identified as being eligible for preferential consideration under . . . [38 U.S.C. § 2014(g)].