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The decision of the Authority follows:
54 FLRA No. 64
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 28, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator George Munchus 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 Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator sustained a grievance, determining that the Agency violated the parties' collective bargaining agreement because it failed to select the grievant for promotion, and ordered a retroactive promotion with backpay. For the following reasons, we conclude that the award is contrary to law. Accordingly, we strike the order granting the grievant a retroactive promotion with backpay and remand the award for consideration of an appropriate remedy.
II. Background and Arbitrator's Award
The grievant, a Hearing Office Clerk, applied for a promotion to one of five Legal Assistant vacancies. Fifteen individuals applied and all, including the grievant, were placed on the Best Qualified List (BQL). However, the grievant was not one of the five selectees. The Union grieved the failure of the Agency to select the grievant for promotion. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issues as:
Did the Agency violate the promotion principles as set forth in the [parties' collective bargaining agreement] when the [Agency] did not select the grievant . . . for promotion to the position of Legal Assistant? If so, what shall the remedy be?
Award at 4.
The Arbitrator determined that the Agency violated the "promotion principles" set forth in Article 26 of the parties' collective bargaining agreement because the selection process was "arbitrary and capricious."(1) Id. at 17. The Arbitrator based his determination on four findings. First, the Arbitrator noted that two of the selectees had previously transferred into the office where the selections were made and had accepted lower graded positions to do so. According to the Arbitrator, the fact that they were selected and promoted "may just be coincidental to their being selected and promoted based on merit principles and practices[,]" or may have been the result of the Agency improperly applying an unwritten "transfer policy" that entitles those employees transferred in lower graded positions to the first available promotion. Id. at 16. Second, the Arbitrator, reviewing the "promotion policy" and the selection process, found that the Agency failed to use appropriate "factors and weights" to compile the BQL, rank those applicants placed on the BQL and to ultimately determine which applicants were the best qualified for the positions.(2) Third, the Arbitrator found that the Agency failed to consider the length of the applicants' experience and service in their current grade level. In this regard, the Arbitrator found that there were applicants on the BQL, including the grievant, who had longer lengths of service in their current grade level than at least one of the five applicants that was selected and promoted. Finally, the Arbitrator found, based on the testimony of the selecting official, that the grievant was qualified for and was capable of performing the duties of the Legal Assistant position.
Based on the determination that the Agency's selection process was "arbitrary and capricious," the Arbitrator concluded that the "final [promotion] action taken by the Agency [was] without merit[,]" and that the grievant was entitled to promotion to a Legal Assistant position. As a remedy, the Arbitrator ordered the grievant promoted with backpay as of the date the original selections were made.
III. Positions of the Parties
A. Agency's Exception
The Agency claims that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator failed to make "the requisite finding that 'but for' any contractual violation, the grievant would have been selected for promotion." Exception at 2. The Agency contends that a grievant claiming improper denial of a promotion is entitled to an award of backpay only where an arbitrator has found that an unjustified or unwarranted personnel action "directly resulted in the denial of a promotion to the grievant that the grievant otherwise would have received." Id. Attachment A at 4. In this respect, the Agency argues that the Arbitrator could not have determined "to a certainty that the grievant would have been selected [for promotion] if the contractual violation which he found had not occurred." Id. at 1.
B. Union's Opposition
The Union claims that the award is an appropriate "make whole" remedy supported by the Arbitrator's finding that the Agency's selection process was arbitrary and capricious. According to the Union, despite the fact that the Arbitrator did not expressly state that the grievant would have received the promotion absent the contractual violation, "the remedy, itself, shows that [the Arbitrator found that] 'but for' the faulty selection process, the [g]rievant would have been promoted[.]" Opposition at 3.
IV. Analysis and Conclusions
In circumstances where a party's exceptions involve an award's consistency with law, we review the questions of law raised by the Arbitrator's award and the parties' exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). Here, based on the express wording of the Agency's exception, the Agency excepts to the award on the ground that it is inconsistent with the Back Pay Act, 5 U.S.C. § 5596. See Exception at 2. Specifically, the Agency contends that the Arbitrator failed to find that "but for" the violation of the parties' agreement the grievant would have been promoted.(3)
The Authority has held that under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996) (Department of Justice) (citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland)).
With respect to the second and third Back Pay Act requirements, the Authority has repeatedly stated that "the 'but for' test does not require a 'specific recitation of certain words and phrases' to establish a direct connection between an unwarranted or unjustified personnel action and an employee's loss of pay or differentials." U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 52 FLRA 938, 942 (1997) (quoting Department of Justice, 51 FLRA at 1098). Under the Back Pay Act, "a finding of a direct causal connection may be 'implicit from the record and the award.'" Id. (quoting VA Cleveland, 41 FLRA at 519). Thus, where an arbitrator awards a retroactive promotion and backpay under the Back Pay Act and an agency claims that such an award is deficient under that Act, the Authority reviews the award for evidence of finding by the arbitrator of a causal connection between an unwarranted agency personnel action and an agency's failure to promote an employee, not for a specific recitation the requisite Back Pay Act findings. See VA Cleveland, 41 FLRA at 518.
In VA Cleveland, 41 FLRA at 517-19, the Authority upheld an award of a retroactive promotion with backpay, finding that, implicit in the record and the award, was a direct connection between the unjustified and unwarranted inclusion of a particular evaluation factor in the rating and ranking process, and the grievant's failure to be one of the six candidates selected for promotion. In that case, the Arbitrator specifically reviewed the ratings of the candidates, found that the use of leave in those ratings was unfair and unjust, and ordered the grievant promoted. Reviewing the record, the Authority noted that if the ratings were reconstructed to delete the evaluation factor involving leave, the grievant's overall ranking would have placed her fourth among the top six rated candidates--all of which the Agency conceded were selected. See also U.S. Department of the Navy, Naval Air station Mirimar, San Diego, California and American Federation of Government Employees, Local 3723, 48 FLRA 47, 51-52 (1993) (upholding award where the arbitrator found that the grievant, being the second highest rated, was entitled to promotion because the agency improperly considered the application of the selected employee who had been ranked highest). Cf. U.S. Department of Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employee Union, Local 250, 42 FLRA 347, 359 (1991) ("but for" finding was not implicit from the record because the arbitrator's findings only established that the selection process violated the parties' agreement and did not support a conclusion that the grievant would have been selected if the violations had not occurred) (Health and Human Services).
Here, the Arbitrator reviewed the selection process, including the ratings of the applicants and, rejecting the Agency's proffered justification for its selections, found that the selection process did not conform to the requirements set forth in the parties' agreement. The Arbitrator also found that the grievant was "qualified and could do the job" for which she applied. Award at 17. However, the Arbitrator's award does not reflect that if the appropriate promotion procedures were followed in this case, the grievant, rather than any of the other fifteen applicants on the BQL, would have been one of the top five candidates that were selected. In this regard, the Arbitrator's findings only address why the selection process was improper, and do not address, either explicitly or implicitly, what would have happened if a proper selection process had been used. Thus, nothing in the Arbitrator's review and findings sufficiently supports a conclusion that the Arbitrator implicitly found that, but for the "arbitrary and capricious" nature of the selection process, the grievant would have been selected and promoted. See Health and Human Services, 42 FLRA at 359. Based on the foregoing, we conclude that the award is deficient as contrary to the Back Pay Act, 5 U.S.C. § 5596.
As the Arbitrator's order of a retroactive promotion with backpay is deficient as contrary to the Back Pay Act, we strike the order. See U.S. Department of Transportation, Federal Aviation Administration, New York Terminal Radar Control Facility, Westbury, New York and National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, 54 FLRA No. 53, Slip. Op. at 7-8 (1998). Because we strike only the order of a retroactive promotion with backpay, the Arbitrator's finding that the selection process violated the parties' agreement is unaffected. In this respect, the Authority has noted that in such circumstances, the parties may submit the issue of an appropriate remedy to arbitration. Id. at 8 (citing American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs Medical Center, Northport, New York, 51 FLRA 444, 450 n.6 (1995); Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 19 FLRA 535, 537 n.2 (1985)).
The award is modified by striking the order of a retroactive promotion with backpay. The award is remanded to the parties for consideration of a remedy consistent with this decision.
(If blank, the decision does not have footnotes.)
1. Article 26 of the parties' agreement, which is entitled Merit Promotion, contains seventeen sections addressing the Agency's promotion and selection process. Section 1 provides that:
The parties agree that the purpose and intent of the provisions contained [in Article 26] are to ensure that merit promotion principles are applied in a consistent manner with equity to all employees and . . . shall be based solely on job-related criteria. This article sets forth the merit promotion system, policies, and procedures applicable to bargaining unit positions in the [Agency].
Exception, Attachment D at 113.
2. Article 26, Section 6 of the parties' agreement, provides that the "[f]actors and weights used by the [Agency] to rank candidates must be fair, job related, applied equitably and the sole basis for determining best-qualified individuals in the merit promotion plan." Exception, Attachment D at 118.
3. The Arbitrator found, and the Agency does not dispute, that the Agency's selection process violated the parties' agreement and that this violation constitutes an unjustified or unwarranted personnel action for the purposes of the Back Pay Act. See Exception, Attachment A at 3. Further, it is not disputed that the failure to promote the grievant would have resulted in the withdrawal or reduction of the grievant's pay if the grievant was entitled to the promotion.