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56 FLRA No. 104
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS INTEGRATED SERVICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 390
September 15, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert J. Mueller 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 determined that the Agency improperly failed to select the grievant for a vacant position. As a remedy, the Arbitrator ordered the Agency to promote the grievant retroactively and to make the grievant whole. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
As a result of a reorganization, the Agency created the Integrated Network Information Resources Management Department and transferred to the Integrated Department work that previously had been performed at five separate medical centers. Employees at the five medical centers were able to apply for a total of 16 vacancies, at the GS-9/11/12 levels, in each of four different positions in the Integrated Department. The parties agreed to a Memorandum of Understanding (MOU) that established procedures for hiring employees for the Integrated Department.
The Agency reviewed applications for the positions and determined that 15 employees, including the grievant, were qualified. Of the 15 qualified applicants, 13 were selected for the different positions, at different grade levels. The grievant was not selected for a position. A grievance was filed over the Agency's failure to select the grievant. When the grievance was not resolved, it was submitted to arbitration, where the parties stipulated to the following issue:
Whether the grievant was denied a . . . position in violation of procedures in the collective bargaining agreement including the . . .[MOU]? If so, what is the appropriate remedy?
Award at 1.
The Arbitrator determined that, in two respects, the Agency acted improperly. First, the Arbitrator found that the "procedure and process" utilized by the Agency violated section 11(D) of the MOU. [n1] Award at 7. According to the Arbitrator, the selection process involved "a mixed bag of different transactions." Id. The Arbitrator concluded that "neither party . . . could fully predict how such a transaction would play out," and "[t]hat is precisely why the agreement that the union be given timely notice so as to allow a union observer to be involved was agreed to." Id. (emphasis in original).
Second, the Arbitrator rejected each of the Agency's asserted reasons for failing to select the grievant. In this regard, the Arbitrator found that four of the asserted reasons were not supported by evidence. The Arbitrator found that the fifth asserted reason --the grievant's alleged resistance to using new equipment -- did not provide a basis for failing to select the grievant because the grievant was assigned to exercise judgment in such matters and because the opinions the grievant expressed were shared by the grievant's supervisor. The Arbitrator noted:
a more truthful motive for non-selection of the grievant . . . is the fact that [the Agency] found the grievant qualified for all positions offered. Despite such fact, on each of the four certifications for GS-12 positions, one finds the notation, "not enough qualified apps."
Id. at 9. [ v56 p648 ]
The Arbitrator stated that the parties' agreement "requires that employees shall be treated fairly and equitably." Id. at 7 (citing Article 16 of the parties' agreement). Based on the "total record evidence," the Arbitrator concluded that the Agency's failure to select the grievant was "discriminatory, unfair, inequitable and contrary to such provisions of the Master Agreement." Id. at 9, 10. As his award, the Arbitrator ordered that the grievant be promoted retroactively to a GS-12 position and be made whole for any lost wages and benefits.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the award is deficient because the Arbitrator exceeded his authority. According to the Agency, although selection procedures are arbitrable, "the actual selection decision is not arbitrable" because it is the exercise of management's right to select under section 7106(a) of the Statute. Exceptions at 3. The Agency claims that the Arbitrator exceeded his authority by "ignoring the obvious distinction between the selection procedures and the actual selection decision." Id.
The Agency also claims that the award is based on a nonfact. Specifically, the Agency claims that the Arbitrator erred by rejecting the selecting official's reasons for failing to select the grievant. According to the Agency, the Arbitrator rejected these reasons based on his erroneous conclusion that the fact that the grievant was minimally qualified for the position meant that the selecting official acted improperly in concluding that the grievant "did not possess [the] highly technical level of knowledge and skills" required for the position. Id. at 5. The Agency maintains that, when the selecting official referred to an absence of qualified candidates, the selecting official was not referring to minimal qualifications.
In addition, the Agency asserts that the award violates management's right to select under section 7106(a)(2)(C) of the Statute. The Agency argues that although the Arbitrator "did not believe the motive of the selecting official for not selecting the grievant," the Arbitrator did not "cite any law that is violated by such an allegedly improper motive." Id. at 3. The Agency claims that, absent a violation of law, the Arbitrator was not permitted to set aside the Agency's decision not to select the grievant.
Finally, the Agency asserts that the award violates the Back Pay Act. The Agency argues that: (1) the grievant did not suffer a withdrawal or reduction of pay, allowances, or differentials; and (2) there is no finding that but for the Agency's violation of the MOU, which according to the Agency is the only violation found by the Arbitrator, the grievant would have been selected.
B. Union's Opposition
The Union argues that the Arbitrator did not exceed his authority because the issue regarding the alleged violation of Article 16 was submitted to the Arbitrator. The Union also argues that the award is not based on a nonfact because, according to the Union, "[q]ualifications were not an issue, and were not the basis for the award." Opposition at 4.
The Union claims that the "issue of management rights is not the underlying question" in this case and that, instead, "the issue of credibility is central." Id. at 2. According to the Union, the Arbitrator found the grievant's -- not the selecting official's --testimony regarding the reasons for the non-selection credible. Similarly, the Union claims that the award does not violate the Back Pay Act. The Union asserts that the award was based on the Agency's violations of the MOU and Article 16, section 9.
IV. Analysis and Conclusions
A. The arbitrator did not exceed his authority.
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996).
In this case, the stipulated issue was whether the grievant was "denied a . . . position" in violation of the MOU or the parties' collective bargaining agreement. Award at 1. This was precisely the issue resolved in the award, where the Arbitrator concluded that the Agency violated both the MOU and the parties' agreement by the procedures used to fill the vacant positions and by the failure to select the grievant. See id. at 6-7, 10. The Agency's exception that the award fails to observe a distinction between the selection procedures and the selection decision ignores that the stipulated issue required the Arbitrator to determine whether the Agency acted improperly in failing to select the grievant, and provides no basis for finding the award deficient.
Accordingly, we deny the Agency's exception. [ v56 p649 ]
B. The award is not based on a nonfact.
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The Agency claims that the Arbitrator improperly rejected the selecting official's reasons for not selecting the grievant based on his erroneous interpretation of the fact that the grievant was qualified for the disputed position. However, the Arbitrator expressly rejected the selecting official's reasons based on his findings that those reasons were not substantiated in the record. See Award at 8-10. In addition, the Arbitrator specifically concluded that the Agency violated the parties' agreement based on "[t]he total evidence in the case." Id. at 10. The Arbitrator noted that, despite the fact that the grievant was minimally qualified for the position the selecting official noted that there were not enough qualified candidates. However, there is no basis to conclude that the Arbitrator made a finding on this point or, if he did, that such finding was either central to the award or clearly erroneous. As such, the Agency has failed to demonstrate that the award is based on a nonfact.
Based on the foregoing, we deny the Agency's exception.
C. The award is not deficient under section 7106(a)(2) of the Statute.
Because the Agency's exception involves the award's consistency with law, the Authority will review de novo the question(s) of law raised by the Agency's exception to the Arbitrator's award. 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)). The Authority, in its de novo review,"assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law." U.S. Department of Defense, Departments of the Army and the Air Force, Alabama National Guard, Northport, Alabama and Alabama Association of Civilian Technicians, 55 FLRA 37, 40 (1998) (Northport). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106(a) 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 to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an 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. [n2] Id. at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
The Authority has held that "an award that orders an agency to promote a grievant retroactively into a specified position affects management's right to select under section 7106(a)(2)(C) of the Statute." U.S. Department of the Navy, Naval Undersea Warfare Center Division, Keyport, Washington and Bremerton Metal Trades Council, 55 FLRA 884, 887 (1999). Thus, the award affects management's right to select and must be evaluated under the BEP framework.
1. Prong I
The Arbitrator noted that Article 16 of the parties' agreement "requires that employees shall be treated fairly and equitably." Award at 7. The Arbitrator concluded that the Agency's failure to select the grievant "was discriminatory, unfair, inequitable and contrary to such provisions" of the parties' agreement, and that the decision was a "deliberate intent on the part of [the selecting official] to not hire the grievant for any of the positions for the reason that he had voiced his opinion to him concerning the amount and type of equipment." Id. at 9, 10. Based on the record as a whole, it is clear, and we find, that the Arbitrator found that the Agency's failure to select the grievant violated Article 16, sections 1 and 9. Those sections provide, in pertinent part: [ v56 p650 ]
Section 1 - General In an atmosphere of mutual respect, all employees shall be treated fairly and equitably and without discrimination in regard to their political affiliation, Union activity, race, color, religion, national origin, gender, sexual orientation, marital status, age, or nondisqualifying handicapping conditions. . . .
Section 9 - Whistle-Blower Protection Employees shall be protected against reprisal of any nature for the disclosure of information not prohibited by law or Executive Order which the employee reasonably believes evidences a violation of law, rule or regulation, or evidences mis-management, a waste of funds, and abuse of authority, or danger to public or employee health or safety.
Exceptions, Exhibit 1 at 45-46.
Section 1 of Article 16 requires the Agency to treat employees "fairly and equitably," and the Arbitrator interpreted the provision to require the Agency to make its selection decision as to the grievant in a fair, equitable, and nondiscriminatory manner. The Authority has addressed requirements that an agency take various actions in a "fair and equitable" or similar manner and, as relevant here, has concluded that such requirement constitutes an appropriate arrangement under section 7106(b)(3). See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 237 (1993) (HUD). Consistent with HUD, Article 16, section 1 is enforceable under section 7106(b)(3) and the Arbitrator's finding that the Agency violated that section satisfies prong I of BEP. In addition, section 9 of Article 16 effectively restates 5 U.S.C. § 2302(b)(8). [n3] Because section 2302(b)(8) is an applicable law enforceable under section 7106(a)(2) of the Statute, the Arbitrator's finding that the Agency violated Article 16 also satisfies prong 1 of BEP.
2. Prong II
The Arbitrator specifically rejected as unsupported the Agency's reasons for failing to select the grievant for a position. In addition, the Arbitrator specifically found that "the rejection of the grievant . . . was discriminatory, unfair, inequitable, and contrary to . . . provisions of" the parties' agreement. Award at 10. By finding that the rejection of the grievant was improper, the Arbitrator found that the Agency would have selected the grievant if it had acted properly. As such, and as the Agency makes no claim that the grade level of the position ordered by the Arbitrator is incorrect, we conclude that the award properly reconstructs what the Agency would have done if it had not violated the parties' agreement and, therefore, satisfies prong II of BEP. [n4]
As the award satisfies both prongs of BEP, the award is not deficient as inconsistent with management's right to select, and we deny the Agency's exception.
D. The award does not violate the Back Pay Act.
Under the Back Pay Act, an award of backpay is authorized where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998).
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to select the grievant and, as a failure to select in violation of a contract provision constitutes an unjustified or unwarranted personnel action, the award satisfies the first requirement of the Back Pay Act. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 55 FLRA 1019, 1022-23 (1999). As to the second requirement, the Arbitrator directed the Agency to retroactively promote the grievant and make the grievant whole for lost wages. This remedies the loss in pay suffered by the grievant as a result of the Agency's improper failure to select him and, as such, satisfies the second requirement. As both requirements are satisfied, the award of backpay is not inconsistent with the Back Pay Act.
Accordingly, we deny the Agency's exception.
The Agency's exceptions are denied.
Footnote # 1 for 56 FLRA No. 104
If there are less than eight applicants, the qualification and promotion process for ranking and qualifying employees shall include timely notice to allow a union observer. . . .
Award at 5.
Footnote # 2 for 56 FLRA No. 104
As prong I permits enforcement of either an applicable law or a contract provision negotiated under section 7106(b), we reject the Agency's argument that "[i]n the absence of a violation of law, the Arbitrator lacked the authority" to set aside the Agency's decision not to select the grievant. Exceptions at 3.
Footnote # 3 for 56 FLRA No. 104
5 U.S.C. 2302(b)(8) provides that it is a prohibited personnel practice for an agency to "take or fail to take" a personnel action because of "any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences - (i) a violation of law, rule or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . ." Although the wording of the contract and statutory provisions are not identical, the differences -- the contract references mismanagement and waste of funds while the statutory provision references "gross" mismanagement and "gross" waste of funds --are not legally significant.
Footnote # 4 for 56 FLRA No. 104