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56 FLRA No. 53
U.S. DEPARTMENT OF THE ARMY
ARMY MISSILE COMMAND
MULTIPLE LAUNCH ROCKET SYSTEM
PROJECT OFFICE, REDSTONE, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
May 5, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William D. Ferguson 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 exceptions.
The Arbitrator found that the Agency forced the grievant to transfer to another department in order to noncompetitively promote the grievant's co-worker from GS-12 to GS-13. The Arbitrator ordered the Agency to promote the grievant to GS-13 with backpay from July 25, 1995. The Agency challenges only the remedy portion of the award. For the reasons that follow, we strike that portion of the award ordering a retroactive promotion with backpay and remand to the parties for consideration of a remedy consistent with this decision. Should the parties be unable to reach agreement, the remedy issue is to be presented to the Arbitrator for resolution. [ v56 p389 ]
II. Background and Arbitrator's Award
From 1981 until 1995, the grievant worked at the Missile Command (MICOM), Multiple Launch Rocket System Budget Office (MLRS-Budget). In 1995 the grievant was one of two GS-12 employees who worked in MLRS-Budget. Both employees reported to the same first-line supervisor. The grievant transferred to another department because she believed the MLRS-Budget division chief was trying to get rid of her. Shortly thereafter, the division chief approved a noncompetitive promotion to GS-13 for the other GS-12 employee, and the promotion became effective July 25, 1995. The grievant filed a grievance seeking a promotion and backpay. The matter was not resolved and proceeded to arbitration. The parties agreed that the disputed issue was whether the grievant should be promoted retroactively to a GS-13 with backpay.
B. Arbitrator's Award
The Arbitrator found that the evidence established that the "acts of [the grievant's] superior" created a hostile environment to force the grievant to leave MLRS-Budget and enable management to initiate the noncompetitive promotion ofthe other GS-12 employee. [n2] Award at 20. The Arbitrator also found that the evidence presented failed to establish whether the Agency initiated the promotion action on behalf of the other employee before or after the grievant left MLRS-Budget. Therefore, the Arbitrator determined that the grievant "must be considered an employee in MLRS" at the time the Agency initiated the noncompetitive promotion action. Id.
In light of these findings, the Arbitrator concluded that the Agency violated MICOM Regulation 690-28, regarding noncompetitive promotions, as the Agency failed to comply with the requirement that there must be no other "similarly situated" employees working for the selecting official who could have competed for the promotion. [n3] The Arbitrator concluded that this violation of the regulation constituted an unwarranted and unjustified personnel action. The Arbitrator further concluded that had the grievant been promoted when the other employee was promoted, the grievant would have received the pay, benefits and allowances due one in that grade. Thus, the grievant was entitled to be "made whole" in the same manner. Id. at 21.
The Arbitrator determined that the appropriate remedy for a violation of MICOM Regulation 690-28 was "not the removal of [the individual selected] from her position but the promotion of [the grievant]." Id. at 20. The Arbitrator ordered the Agency to promote the grievant from GS-12 to GS-13, effective July 25, 1995, with backpay from that date.
III. Positions of the Parties
A. Agency's Exceptions
The Agency cites Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627, 54 FLRA 609, 612 (1998) (SSA, Orlando), and claims that the remedy awarded is deficient because it fails to meet the Authority's test under the Back Pay Act. Exceptions at 3-4. According to the Agency, the unjustified or unwarranted personnel action did not result in a reduction or withdrawal of the grievant's pay, allowance or differentials. The Agency also asserts that the Arbitrator's reliance on testimony, which incorrectly or unclearly characterized remedies under the Back Pay Act, failed to show that the grievant would have received this promotion and salary increase "but for" the unjustified or unwarranted personnel action. Id. at 5. The Agency also claims that the remedy awarded violates law because the grievance involved a classification issue and the Back Pay Act does not authorize backpay in a reclassification action.
In addition, the Agency contends that the remedy awarded violates management's right to determine its organization, select, and assign work under section 7106(a) by requiring it to create a GS-13 position and then fill it with the grievant. Finally, the Agency argues that the Arbitrator's award fails to satisfy the Authority's framework for resolving exceptions regarding management's rights, 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).
B. Union's Opposition
The Union asserts that the Arbitrator's award does not violate the Back Pay Act, because had the Agency not forced the grievant out of the organization, the Agency would have either promoted the grievant along [ v56 p390 ] with the other GS-12 employee or would not have promoted the other employee. Opposition at 3.
The Union also asserts that the remedy awarded does not violate management's rights under either 5 U.S.C. § 7106(a)(2)(C) or § 7106(a)(2)(B). According to the Union, the award met both prongs of the BEP framework. Alternatively, the Union asserts that since the Agency never argued management's rights under section 7106 at the arbitration hearing, the Agency cannot do so now.
IV. Analysis and Conclusions
A. The Award is Contrary to the Back Pay Act
1. Standard of Review
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by the Arbitrator's award and the Agency's exceptions de novo. See 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 de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See 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. Id. If an award fails to contain the factual findings necessary to enable the Authority to assess the arbitrator's legal conclusions, and the findings cannot be derived from the record, the award will be found deficient and the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. Id.
2. Requirements of the Back Pay Act
The Authority has held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia and American Federation of Government Employees, Local 3615, 55 FLRA 349, 353 (1999) (citing U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1219 (1998) (the "but for" requirement is not a separate element of the Back Pay Act; it merely amplifies the statutory language of the Back Pay Act).
Here, the Agency does not challenge the Arbitrator's finding that the grievant must be considered an employee in MLRS-Budget at the time of the noncompetitive promotion of the other employee. The Agency also accepts the Arbitrator's finding that the Agency's "noncompetitive promotion [of the other employee] was an unjustified and unwarranted personnel action because it was accomplished in violation of MICOM Reg 690-28." Exceptions at 4. The Agency argues, however, that the remedy awarded fails to meet the second prong of the Back Pay Act, including the "but for" requirement, and is thus analogous to SSA, Orlando, 54 FLRA at 614.
In SSA, Orlando, the arbitrator ordered a retroactive promotion with backpay upon finding the agency violated the parties' collective bargaining agreement regarding the promotion selection process. 54 FLRA at 609. The Authority determined that the arbitrator's award was deficient because it failed to establish a causal connection between the agency's unwarranted or unjustified personnel action of violating the "promotion principles" set forth in the parties' collective bargaining agreement and the failure of the grievant to be selected and promoted. Id. at 614.
In this case, there is no finding by the Arbitrator that the grievant would have been promoted but for the Agency's improper use of noncompetitive promotion procedures. Instead, the Arbitrator granted the grievant a noncompetitive promotion based solely on his understanding of Agency remedial policy once a misuse of noncompetitive promotion procedures has occurred. However, that asserted policy does not establish what would have occurred if noncompetitive promotion procedures had not been misused. If noncompetitive promotion procedures had been properly followed, the asserted policy would not have come into play. The Union did not allege that a failure to apply the asserted Agency remedial policy constituted an unwarranted and unjustified personnel action in its own right. Moreover, the Arbitrator found specifically that "the noncompetitive promotion of [the other employee]" was the "unwarranted and unjustified personnel action." [n4] Award [ v56 p391 ] at 20. Accordingly, it is necessary to find the required causal connection between that action and the asserted loss.
It is well established that waivers of sovereign immunity are to be strictly construed. See Library of Congress v. Shaw, 478 U.S. 310, 318 (1986). As relevant here, the Back Pay Act specifically requires that the unjustified or unwarranted personnel action must have "resulted in the withdrawal or reduction of" the employee's pay. Thus, while we agree with our dissenting colleague that the purpose of the Back Pay Act is to make employees whole for losses suffered as a result of unjustified or unwarranted personnel actions, that fact does not obviate the statutory requirement for a causal connection between the asserted loss (in this case the failure to be selected for promotion) and the unjustified or unwarranted personnel action (the improper use of noncompetitive promotion procedures). In this case, the Arbitrator determined that the "appropriate remedy" was the promotion of the grievant. Award at 20. However, the Arbitrator made no finding that the grievant would have been selected for this promotion but for the improper promotion of the other employee. Therefore, we conclude that the award is deficient as contrary to the Back Pay Act, 5 U.S.C. § 5596.
As the remedy awarded is contrary to the Back Pay Act, it must be set aside. 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 506, 512-13 (1998). Because only the promotion and backpay remedy is stricken, however, the Arbitrator's finding that the Agency violated MICOM Reg. 690-28 remains unaffected. In such circumstances, absent settlement the parties may resubmit the issue of an appropriate remedy to the arbitrator for resolution. Id. at 513 (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 that portion of the Arbitrator's decision providing the grievant with a promotion and backpay. The award is remanded to the parties for consideration of a remedy consistent with this decision. [n5]
MICOM Regulation 690-28, Appendix D, entitled Exceptions to Merit Promotion Plan, addresses the Agency's noncompetitive promotion process, as follows:
s. Promotion of employees whose positions are reconstituted in a higher grade because of additional duties and responsibilities, provided:
(1) There are no other employees at the same grade in the unit supervised by the selecting official who are performing duties substantially the same as those performed by the employee before the addition of the new duties and responsibilities. (For example, in classification, jobs are considered substantially the same when major duties, supervisory controls, knowledge required, and working conditions are the same).
Chairman Wasserman, dissenting:
As noted by my colleagues, the Arbitrator concluded that the Agency violated MICOM Regulation 690-28, which constitutes the requisite unjustified or unwarranted personnel action under the Back Pay Act. As a remedy, the Arbitrator ordered the grievant noncompetively promoted, which the Arbitrator found was the corrective action applied under MICOM 690-28 to such violations. See Award at 20. My colleagues find that this remedy fails to evidence the necessary causal connection between the unjustified and unwarranted personnel action and the grievant's asserted loss of pay. I disagree. Consequently, I dissent.
I find the necessary connection because the award enforces a mandatory agency personnel policy of corrective action under MICOM Regulation 690-28 for employees adversely affected by the wrongful use of noncompetitive promotion procedures. The policy calls for the noncompetitive promotion of an employee who is at the same grade in the unit supervised by the selecting official and who is performing duties substantially the same as those performed by the promoted employee. My colleagues attempt to avoid this evident connection by concluding "that [the] . . . policy does not establish what would have occurred if noncompetitive promotion procedures had not been misused." Majority decision at 6 (emphasis original). They argue that it is necessary to [ v56 p392 ] find the required connection between the unwarranted promotion of the other employee and a loss of pay. The problem with this conclusion is that it frames the wrong inquiry.
The purpose of the Back Pay Act is to place an employee who was the victim of an unjustified or unwarranted personnel action in the same position that the employee would have achieved had the erroneous action not occurred. See Wells v. Federal Aviation Administration, 755 F.2d 804, 807 (11th Cir. 1985); accord U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 902, 923 (1991). Thus, relief under the Act is intended to make employees whole--nothing more, but also nothing less. See S. Rep. No. 89-1062, at 1, (1966). To grant the grievant her rightful place absent the unjustified or unwarranted personnel action, the appropriate question to ask is not, as asked by the majority, whether the grievant would have been promoted if the promotion procedures had been followed. To assure that the grievant is granted nothing less than being made whole, the question to ask is what corrective action was required under MICOM Regulation 690-28, once it was determined that for purposes of application of that regulation, the grievant was to be considered in the unit at the time of the noncompetitive promotion of the other employee. Unless the award were found to be contrary to MICOM Regulation 690-28, which is not even asserted by the Agency, the mandated corrective action is, as found by the Arbitrator and acknowledged by the majority, "not the removal of [the individual selected] from her position but the promotion of [the grievant]." Majority decision at 3. This mandated corrective action distinguishes this case from Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627, 54 FLRA 609 (1998) (SSA, Orlando), on which the majority relies. The "promotion principles" in SSA, Orlando mandated no specific corrective action for the violation of the principles.
As a consequence, the Back Pay Act is satisfied. In the circumstances presented, the unjustified and unwarranted action must be both the unwarranted promotion of the other employee and its consequences of denying the grievant the mandated corrective action. The causal connection is satisfied because the Arbitrator's remedy precisely reflects reconstruction of what the Agency would have done with the grievant under the regulation had she been in the unit at the time of the promotion of the other employee--noncompetively promoted the grievant rather than demoting the other employee.
My colleagues further support their determination by noting that "[t]he Union did not allege that a failure to apply the asserted Agency remedial policy constituted an unwarranted and unjustified personnel action in its own right." Id. at 7. This misconceives our review role. We do not review the allegations of the Union; we review whether the record reflects sufficient support for the Arbitrator's award of backpay. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Cleveland, Ohio, 41 FLRA 514, 518 (1991) (the Authority reviews these awards for evidence of a causal connection between an unwarranted action and an employee's loss of pay and not for a specific recitation of words and phrases). In my view, it clearly does. See id. at 519 (the direct connection between the unwarranted action and the grievant's loss of pay is implicit from the award). As a result, the majority deprives the grievant of her rightful place as demanded by the Back Pay Act and granted by the Arbitrator. From that, I dissent.
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In view of the Arbitrator's specific finding, our dissenting colleague's conclusion that the unjustified and unwarranted personnel action was also denying the grievant the appropriate corrective action is unfounded. Dissent at 2.
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