[ v55 p37 ]
55 FLRA No. 15
U.S. DEPARTMENT OF DEFENSE
DEPARTMENTS OF THE ARMY AND THE AIR FORCE, ALABAMA NATIONAL GUARD
ALABAMA ASSOCIATION OF CIVILIAN
December 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Cary J. Williams 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 exceptions.
The Arbitrator found that the two grievants were not properly considered for a vacancy announcement for a WG-9 automotive worker position because the Agency preselected the selectee. The Arbitrator ordered the grievants to be upgraded to the WG-9 level under the provisions of Technical Personnel Regulation 335, Part II (TPR Part II).
As the Agency excepts solely to the remedy portion of the Arbitrator's award, the Agency concedes that it violated Article 20 of the parties' collective bargaining agreement. For the following reasons, we conclude that the remedy portion of the award is deficient under section 7122(a)(1) of the Statute. Accordingly, we set aside that portion of the award and remand this case to the parties with the direction that, absent settlement, the case should be submitted to the Arbitrator to determine an appropriate remedy. [ v55 p38 ]
II. Background and Arbitrator's Award
A. Background on the Grievance
The two grievants, both white males, are WG-8 automotive workers in Northport, Alabama. The grievants, and another WG-8 automotive worker Jesse Harris, a black male, applied for a WG-9 vacancy in September 1996. Harris had also applied for a WG-9 position in April 1996, but was not selected. Following his non-selection, Harris filed a Congressional and Equal Employment Opportunity (EEO) complaint.
The selecting official for the September 1996 vacancy testified that his superior "told him it would be best for the [Alabama National] Guard if Harris could get the job." Award at 5. Though the selecting official testified that "he felt uncomfortable" selecting Harris, he ultimately selected him for the job -- after interviewing all the applicants, including the grievants. Id. The selecting official also testified that he did not think that Harris was the best qualified applicant for the vacancy, and that the grievants "were not given fair consideration" for the position. Id. at 6. However, the selecting official stated that, under the Agency's Affirmative Action Plan, consideration could be given to minorities when making a selection. He testified that this was the reason Harris was selected for the vacancy.
The selecting official's superior (the superior) testified that he did not directly instruct the selecting official to select Harris, but he "understood why [the selecting official] might have thought so." Id. The superior testified that he recommended that another position be announced for Harris to compete for, to settle the EEO and Congressional complaints. The superior also testified that he discussed the vacancy with the selecting official. The superior stated that he left the selecting official with the understanding that "the Affirmative Action Plan and its goals and objectives should be considered in making [a] selection." Id. at 7. He added that consideration should be given to minorities when vacancies occur, "if they are otherwise qualified as was Harris." Id.
B. The Arbitrator's Award
The Arbitrator found that Article 20 of the parties' collective bargaining agreement (parties' agreement) "must be followed" when filling job vacancies. [n1] Id. at 8. Moreover, the Arbitrator stated that while other regulations and requirements such as the Affirmative Action Plan can be considered in selecting candidates, there was no language in the parties' agreement which indicated that those outside factors superseded the agreement.
The Arbitrator determined that the weight of the evidence supported the Union's contention that Harris was preselected for the position, and that the grievants were not properly considered. The Arbitrator stated that the testimony established that the superior talked with the selecting official several days before the vacancy announcement was published and, "either directly or by implication, instructed him to select Harris." Id. at 9. According to the Arbitrator, the superior's actions "violated the spirit and language of Article 20[,]" because it raised a presumption that Harris' selection was based on non-merit or other criteria, rather than his qualifications for the job. Id., referencing Article 20, section 2. The Arbitrator also stated that this action violated section 6(b)(3) of Article 20. In this connection, the Arbitrator found that the superior's discussion of the selection with the selecting official prior to the posting of the vacancy announcement, and his direction to the selecting official to select Harris, amounted to preselection under the parties' agreement.
The Arbitrator rejected the Agency's contention that the Union's grievance should not be considered under Article 20, section 16(c) because it was based solely on non-selection. Rather, the Arbitrator found that the evidence presented strongly indicated that the grievance was based on Harris' preselection. The Arbitrator credited the superior's testimony in which he stated that he discussed with the selecting official the selection of Harris before the vacancy announcement was made or posted. The Arbitrator also credited the selecting official's testimony that "he felt uncomfortable with the selection of Harris even though he was qualified, but did so without any real consideration of the [g]rievants." Id. at 10. Thus, the Arbitrator concluded that it was "more than coincidence" that these facts occurred prior to Harris' selection and that Harris was ultimately selected. Id. In addition, the Arbitrator found that, after his selection for the WG-9 automotive worker position, the complaints initiated by Harris were dropped.
Contrary to the Agency's contention, the Arbitrator also determined that Harris was not selected to satisfy the requirements of the Affirmative Action Plan, but instead was selected to settle the Congressional and EEO complaints. The Arbitrator noted that the Agency had the option to upgrade Harris under TPR Part II, if it felt that Harris had been the subject of discrimination. [n2] However, the Arbitrator found that once the Agency [ v55 p39 ] chose to use the merit provisions of the parties' agreement to fill the vacancy, it had to follow the procedures therein and consider all candidates on a fair and equitable basis, including the grievants. In this regard, the Arbitrator stated that "[h]ad all candidates been properly considered" by the selecting official in accordance with the merit promotion system and the Affirmative Action Plan, "then perhaps Harris' selection would have been proper." Id. at 11. Nevertheless, the Arbitrator concluded that the weight of the evidence here indicated that the vacancy was announced in an effort to settle Harris' complaints, and that the grievants were not properly considered for the vacancy as required by Article 20 of the parties' agreement and TPR Part II.
Finally, the Arbitrator agreed with the Union that the grievants could be upgraded to WG-9 positions without competition under TPR Part II, since they were not given "proper consideration in a competitive action." Id. Accordingly, the Arbitrator sustained the grievance and ordered that the grievants be "upgraded to WG-9" effective November 24, 1996, with backpay for the difference between their WG-8 positions and the WG-9 position since that date.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the Arbitrator's award of retroactive promotion and backpay to the grievants affected its management right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency cites Authority precedent for the proposition that its statutory right to make selections for promotion may only be abridged by an award of an arbitrator "when the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion." Exceptions at 2, citing U.S. Naval Ordnance Station, Louisville, Kentucky and International Association of Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA 382 (1986). The Agency argues that case law requires the arbitrator to reconstruct what the "selecting or appointing officials would have done if the unwarranted agency actions had not occurred." Exceptions at 2. Here, the Agency states that the Arbitrator, in awarding the promotions and backpay, only made the finding that the grievants were not considered equally for the vacancy under Article 20 of the parties' agreement, or given proper consideration as required by TPR Part II. The Agency asserts that "[a]t no time d[id] [the Arbitrator] make the finding that, upon reconstruction of the case, the responsible selecting official would have selected either grievant . . . but for the failure to properly consider." Id. (emphasis in original).
According to the Agency, the only basis that the Arbitrator provides for his promotion award is TPR Part II, paragraph l. The Agency contends that this regulation "in no way obligates management to select a person given priority consideration." Id. at 3. Instead, the Agency states that the regulation merely recognizes the remedy of priority consideration as a possibility, and provides management with the ability to select, without competition, an employee offered such consideration. Additionally, the Agency argues that the Arbitrator's award of promotion to both grievants completely disregarded Authority case law. Specifically the Agency argues that, here, as in Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122 (1990) (VAMC Houston), the Arbitrator could not reasonably determine that more than one grievant would have been selected for the position, when there was only one vacancy announced and filled.
Next, the Agency asserts that the Arbitrator improperly awarded the grievants backpay. Relying on section 5596(b)(1) of the Back Pay Act, the Agency states that the Arbitrator did not make the requisite finding that either grievant would have been promoted "but for the failure to properly consider either applicant." Exceptions at 4. Finally, the Agency claims that the award violates management's right to determine its organization and to assign work under section 7106(a)(2)(A) and (B) of the Statute, respectively. Essentially, the Agency argues that, as there are no WG-9 vacancies to which the grievants can be promoted, the award requires that it restructure two positions in its facility and then assign the positions to the grievants.
B. Union's Opposition
The Union asserts that the contractual authority for the award in this case is derived from section 7106(b)(1) of the Statute. Citing National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995), the Union states that contract provisions negotiated pursuant to section 7106(b)(1) of the Statute are enforceable and "exempt from the reach of the management rights clauses found in § 7106(a)." Opposition at 2. The Union argues that, in this case, the Arbitrator found that under the parties' agreement the Agency was required to assign, to an organizational subdivision, a number of WG-9 positions sufficient to [ v55 p40 ] enable the two grievants to be assigned to those positions. The Union also claims that the grievants are "the type of employees whom the contract entitles to be so assigned." Id. at 3. Thus, the Union contends that "[t]his type of award, if authorized by the [parties' agreement], does not violate § 7106(a), because statutory authority for the applicable contractual provision is clearly granted by § 7106(b)(1)." Id.
In addressing whether the award was authorized by the parties' agreement, the Union states that the Agency does not dispute that the evidence and the contract provisions fully warrant the promotion awards. More pointedly, the Union claims that the Agency does not dispute that the promotion awards would be fully authorized by the contract and the evidence, were it not for the Agency's assertion that the awards violate management rights. The Union argues that the Agency's assertion overlooks section 7106(b)(1), under which the provision authorizing the award is valid. In this regard, the Union reiterates that the provisions, and the enforcement authority they impart to arbitrators, are exceptions to section 7106(a), and their inclusion in the parties' agreement establishes that the Agency elected to negotiate them.
Alternatively, the Union contends that even without the consideration of section 7106(b)(1), the promotion awards do not violate management rights. Specifically, the Union argues that the violations inherent in the unlawful preselection scheme "clearly justif[y]" the Arbitrator's promotion award. Id. at 7. With regard to the preselection scheme, the Union states that the Agency's arguments are premised on the erroneous assumption that it made a valid decision to create only one new WG-9 position. The Union claims that the evidence presented demonstrated that the Agency's decision to promote only one WG-8 employee was improper. The Union asserts that the Agency's unlawful preselection of Harris was not limited to the filling of the position: "it also infected the creation of the position itself." Id. at 6. In sum, the Union argues that "it is not unreasonable to conclude" that had the Agency not preselected Harris, it would have created a promotion opportunity not limited to one position. Id. at 7. According to the Union, the Agency would have created a number of WG-9 positions sufficient to address its need for WG-9 work and would have filled those positions with the employees to whom it already had been assigning the WG-9 work, including both the grievants.
Finally, the Union argues that the Arbitrator's award of backpay to the grievants does not violate the Back Pay Act. The Union states that Article 29, section 1 of the parties' agreement, which authorizes and requires the "equitable settlement" of grievances, authorizes the Arbitrator's award of backpay. [n3] Id. at 8. The Union contends that even if this were not true, backpay would be authorized nonetheless as the grievants would have been promoted had the Agency not engaged in a preselection scheme, or committed its equal pay violation.
IV. Analysis and Conclusions
As the Agency's exceptions concern the award's consistency with the law, the Authority reviews the questions of law raised by the award and the Agency's 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Agency has alleged that the remedy portion of the award violates its management rights under section 7106(a)(2)(C) of the Statute. [n4] The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what manage- [ v55 p41 ] ment would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. For the reasons that follow, we set aside the remedy portion of the award and remand it to the parties for resubmission to the Arbitrator to determine an appropriate remedy.
The Authority has held that an award requiring an agency to make an actual selection for an appointment affects management's right to select under section 7106(a)(2)(C) of the Statute. See, e.g., American Federation of Government Employees, Council 220 and Social Security Administration, Region VI, Dallas, Texas, 54 FLRA 1227, 1234 (1998) (Authority held that an award which placed the grievant in a position affected management's right to select); U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 48 FLRA 293, 302 (1993) (Authority found that an award ordering retroactive promotion of the grievants affected, but did not impermissibly interfere with, management's right to select). Here, the award orders the Agency to promote the grievants retroactively into WG-9 automotive worker positions. Consequently, the award affects management's right to select.
With regard to prong I, there is no contention that the provisions of the parties' agreement enforced by the Arbitrator, namely Article 20, sections 2 and 6(b)(3), were unenforceable. [n5] See, e.g., VAMC Coatesville, 53 FLRA at 1429; U.S. Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 53 FLRA 1344, 1348 (1998). Moreover, the Agency has essentially conceded that the Arbitrator was enforcing a contract provision negotiated pursuant to section 7106(b), by focusing its arguments on reconstruction and only excepting to the remedy portion of the award. Accordingly, we find that the award satisfies prong I of the BEP analysis.
Under prong II, the question is whether the Arbitrator's remedy, directing the Agency to promote both grievants retroactively, is a proper reconstruction of what the Agency would have done had it not violated the parties' agreement. As the Agency suggests, in order to apply prong II of the BEP analysis, it is essential to identify how the violation relates to the remedy. See Panama Canal Commission and District No. 1, Marine Engineers Beneficial Association, 54 FLRA 1161, 1174 (1998) (Panama Canal). Here, the Arbitrator did not explain how the Agency's selection of Harris for the WG-9 position vacancy, which violated the EEO and preselection provisions of Article 20 of the parties' agreement, related to the retroactive promotion of both grievants into WG-9 positions. The Arbitrator found, and it is undisputed, that the grievants were not properly considered for the position. The Arbitrator also concluded that Harris was preselected for that position. However, the Arbitrator never determined who was the best qualified candidate for the position. In this regard, the Arbitrator only stated that "[h]ad all candidates been properly considered by [the selecting official] in accordance with the merit promotion system and the Affirmative Action Plan, then perhaps Harris' selection would have been proper." Award at 11. Thus, the Arbitrator did not find, nor is the record sufficient to determine, which candidate would have been selected for the position, had the Agency not violated the parties' agreement. See, e.g., Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627, 54 FLRA 609, 614 (1998) (SSA Orlando) (Authority found that the arbitrator's order of a retroactive promotion with backpay was contrary to the Back Pay Act because the arbitrator failed to find that the grievant would have been selected but for the agency's actions); U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611, 1620 (1998) (Authority remanded the case to the parties, and denied the grievant a retroactive promotion, because the record did not contain sufficient [ v55 p42 ] information to determine whether the grievant qualified for the position).
The only basis the Arbitrator provides for his promotion award is TPR Part II, paragraph l. This regulation provides an exception to competitive placement when a candidate is not given proper consideration, but it only affords placement as a result of priority consideration. Here, the Arbitrator ordered the Agency to promote both grievants retroactively. Had the Arbitrator determined which grievant was best qualified for the position, assuming that Harris was not, he could have promoted that grievant retroactively and granted the other grievant priority consideration for the next available vacancy, to address the Agency's failure to properly consider the grievants. See, e.g., VAMC Houston, 36 FLRA at 129. Or, if the Arbitrator was unable to determine which grievant, if either, was best qualified for the position, he could have simply granted the grievants priority consideration as a remedy. The Arbitrator also could have ordered the Agency to re-run the vacancy announcement and properly consider the grievants, as well as Harris, for the position. See, e.g., Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, AFL-CIO, 54 FLRA No. 116, slip op at 10 n.6 (1998) (AFGE, Council 215), citing U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 143 (1990); Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 406 (1996). However, as the award stands now, we are unable to determine upon what basis the Arbitrator ordered the promotion of the two grievants, when only one position was at issue. [n6]
Consequently, we find the remedy portion of the award deficient because it does not represent a proper reconstruction of what the Agency would have done had there been no violation. Accordingly, we set aside the Arbitrator's order to promote both grievants retroactively. However, such a result would leave the Union with no remedy for the violation found by the Arbitrator. See AFGE, Council 215, 54 FLRA No. 116, slip op at 10; SSA Orlando, 54 FLRA at 614. Therefore, it is appropriate to remand this portion of the case to the parties, for resubmission to the Arbitrator to determine an appropriate remedy, if the parties cannot resolve the dispute. See, e.g., AFGE, Council 215, 54 FLRA No. 116, slip op at 10; SSA, Orlando, 54 FLRA at 614 (citations omitted).
The remedy portion of the award is set aside. The award is remanded to the parties for determination of a remedy consistent with this decision. [n7]
The text of Article 29, Grievance Procedures, provides, in relevant part, as follows:
Section 1. Purpose. . . . . The purpose of this Article is to provide for a mutually acceptable method for the prompt and equitable settlement of technician grievances . . . .
The text of Article 20 provides, in relevant part, as follows:
Merit Promotion and Placement
Section 2. General
a. All actions taken under this Article will be based on qualification and merit without regard to political, religious, labor organization affiliation or non-affiliation, martial status, race, color, sex, national origin, non-disqualifying physical handicap, or age, and shall not be based on any non- merit or other criteria which is not job related.
. . . .
Section 6. Responsibilities.
. . . .
b. Recommending Officials Duties Include:
. . . .
(2) Interviewing all candidates in accordance with instructions contained on the Referral and Selection Certificate (NGB Form 300-6) and interview requirements spelled out in this agreement, and making a recommendation based on qualifications of the candidates and a judgement as to which applicant, if any, will best perform the duties of the position in question. A recommendation will be made without discrimination or favoritism based on personal relationship or patronage.
[ v55 p43 ] (3) Avoiding any practice that may lead employees to believe that a person was preselected for a position or that favoritism was used.
. . . .
Section 16. Resolving Dissatisfaction.
. . . .
b. The Union or an employee who believes that governing procedures were not followed, may file a grievance under the negotiated grievance procedure. . . .
c. A grievance will not be considered when it is based solely on non-selection.
. . . .
TPR Part II provides, in relevant part, as follows:
Merit Placement for National Guard Technicians
. . . .
Part II - Exceptions to Competition
*l. Placement as a result of priority consideration when a candidate was not previously given proper consideration in a competitive action.*
Footnote # 1 for 55 FLRA No. 15
Footnote # 2 for 55 FLRA No. 15
Footnote # 3 for 55 FLRA No. 15
Footnote # 4 for 55 FLRA No. 15
In its exceptions, the Agency also alleged violations of section 7106(a)(2)(A) and (B). However, in light of our decision, we do not find it necessary to address that portion of the Agency's exceptions.
Footnote # 5 for 55 FLRA No. 15
The Authority has consistently held EEO provisions, such as Article 20, section 2, to be enforceable. For example, the Authority, extending the National Labor Relations Board's reasoning in Star Tribune, 295 NLRB 543, 548 (1989), held that an EEO proposal was negotiable because "the elimination of actual or suspected discrimination is a mandatory subject of bargaining under the [National Labor Relations] Act. . . [and] [n]othing in the Statute warrants a different conclusion[.] American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1419-21 (1992), citing American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 617 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) ("matters related to discrimination in employment . . . are within the scope of the duty to bargain under section 7117 of the Statute"). Similarly, the Authority has also deemed provisions which address the preselection of candidates to be enforceable. See, e.g., U.S. Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 48 FLRA 873, 881-82 (1993) (Authority found that the arbitrator was enforcing a valid preselection provision in the parties' merit promotion article).
Footnote # 6 for 55 FLRA No. 15
The Union's defense of the remedy under section 7106(b)(1) misses the point. The ability to negotiate over numbers, types and grades is irrelevant to whether the Arbitrator corrected the violation through reconstruction.
Footnote # 7 for 55 FLRA No. 15
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