United States, Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12 (Union)
[ v59 p560 ]
59 FLRA No. 98
DEPARTMENT OF LABOR
OF GOVERNMENT EMPLOYEES
January 8, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator S. R. Butler filed by the Agency under § 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 Agency violated a settlement agreement and the parties' collective bargaining agreement when it failed to give the grievant priority consideration for a GS-14 position. To remedy the violation, the Arbitrator awarded the grievant a retroactive promotion to a GS-14 position within the Agency. For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
Pursuant to a settlement agreement between the parties, the grievant was entitled to priority consideration for the next Economist GS-110-14 position within the Agency's office of Mine Safety and Health Administration (MSHA). When the next position became available, the grievant applied for the position, but was not selected. The grievant filed a grievance over his non-selection. When the grievance was unresolved, the matter was submitted to arbitration, where the Arbitrator framed the following issues: [ v59 p561 ]
Did the Agency violate the applicable [s]ettlement [a]greement and/or Article 16 of the [c]ollective [b]argaining [a]greement when it did not select the [g]rievant . . . for a [certain] GS-110-14 position . . . ? If so, what shall be the remedy?
Award at 2. [n1]
At the hearing, the parties stipulated that the grievant "was not given priority consideration as required by the settlement agreement[.]" Id. at 4. According to the Arbitrator, priority consideration "guarantee[s] that the [grievant] will be interviewed and seriously considered [for the position] before, and without reference to, any [of] the comparative qualifications of any [of the] other candidates[.]" Id. at 10 (emphasis in original). The Arbitrator explained that the grievant was entitled to be selected for the position, unless "there were legitimate, job-related reasons" for his non-selection. Id.
The Arbitrator rejected the Agency's claims that the grievant was not given priority consideration or selected because he did not include a copy of the settlement agreement or his current performance evaluation with his application. In this regard, the Arbitrator found that the vacancy announcement did not require applicants to submit these items. See id. at 10-11. The Arbitrator further found that the Agency failed to demonstrate any "sound, meaningful, job-essential reasons" for the grievant's non-selection. Id. at 13. Therefore, the Arbitrator concluded that the Agency violated the settlement agreement and Article 16 of the parties' collective bargaining agreement by not giving the grievant priority consideration for the position and by not selecting him for the position. The Arbitrator also concluded that, "but for" these violations, the grievant "would have been selected for the GS-14 position." Id. at 14. Accordingly, the Arbitrator found that the Agency's failure to select the grievant constituted an "unjustified personnel action [that] resulted in the reduction of pay[.]" Id. at 15.
To remedy the violations, the Arbitrator ordered a promotion with backpay "to the next appropriate GS-14 position available in MSHA, OSHA or any other Department of Labor agency . . . ." Id.
III. Positions of the Parties
A. Agency's Exceptions
First, the Agency argues that the award is contrary to law because it violates the Agency's right to make selections under § 7106(a)(2)(C) of the Statute. [n2] In this regard, the Agency claims the Arbitrator "substitute[d] her judgment for that of the selecting official" in awarding the retroactive promotion because the selecting official "repeatedly testified" that the selectee was "the superior candidate" and even in the absence of the violations, "the grievant would not have been selected[.]" Exceptions at 5.
Next, the Agency argues that the award is contrary to law because it violates the Back Pay Act. In this connection, the Agency asserts that the violations found by the Arbitrator do not constitute unjustified or unwarranted personnel actions under the Act and the remedy does not meet the "but for" requirement of the Act. Id. at 7-8.
Finally, the Agency argues that the Arbitrator exceeded her authority by including OSHA in her relief. In this connection, the Agency asserts that "MSHA was the only agency involved in this matter." Id. at 6.
B. Union's Opposition
Relying on Soc. Sec. Admin., Chicago Region, Cleveland Ohio Dist. Office, Univ. Circle Branch, 56 FLRA 1084 (2001) (SSA, Chicago Region), the Union disputes that the award affects the Agency's right to make selections under § 7106(a)(2)(C) of the Statute. See Opposition at 3. In this regard, the Union asserts that the Arbitrator correctly found that "the [g]rievant `had better than minimal qualifications' for the position in question" and that the grievant would have been selected for the position "but for management's contractual violations[.]" Id. at 4.
Also, according to the Union, the Agency's management rights argument should be rejected because it is based on "the faulty premise that management had a right to compare the grievant to the other job applicants[.]" Id. In this connection, the Union argues that the grievant was entitled to be considered for the position [ v59 p562 ] before any other candidate was referred to the selecting official.
The Union further argues that the award does not violate the Back Pay Act because the Arbitrator made the proper findings that but for the Agency's violations, the grievant would have been selected for the position, and his non-selection "resulted in a loss of pay[.]" Id. at 6.
Finally, the Union argues that the Arbitrator did not exceed her authority by including OSHA in the remedy because the grievance was filed "against the Department of Labor, not a specific agency or a specific management official." Id.
IV. Analysis and Conclusions
A. The Award Is Not Contrary To Law
The Agency claims the award is contrary to law. Therefore, we will review the questions of law raised in the Agency's exceptions and the Arbitrator's award de novo. See, e.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, we will assess whether the Arbitrator's legal conclusions are consistent with the applicable standard of law and, in doing so, we will defer to the Arbitrator's underlying factual findings. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). For the following reasons, we conclude that the award is not contrary to law.
1. The Award Does Not Violate the Agency's Right To Make Selections Under § 7106(a)(2)(C) of the Statute
In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Upon finding that an award affects a management right under § 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 applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contractual provision at issue. See id. at 151-54.
The Authority has held that an award requiring an agency to make a selection for an appointment affects management's right to make selections under § 7106(a)(2)(C) of the Statute. See Soc. Sec. Admin., Woodlawn, Md., 54 FLRA 1570, 1577 (1998) (SSA, Woodlawn). Because the award in this case directs the Agency to promote the grievant to the next appropriate GS-14 position, we find that the award affects management's right to make selections under § 7106(a)(2)(C) of the Statute. In reaching this conclusion, we reject the Union's argument to the contrary, based on SSA, Chicago Region, in which the Authority found that an arbitrator's review of an agency's application of its qualification standards did not affect management's right to make selections. See SSA, Chicago Region, 56 FLRA at 1089. Here, there is no dispute that the grievant was qualified for the position, and the Arbitrator did not merely review the Agency's actions; he directed the Agency to promote the grievant. Therefore, based on SSA, Woodlawn, we conclude that the award of a retroactive promotion to the grievant affects the Agency's right to make selections under § 7106(a)(2)(C) of the Statute.
Turning to the BEP test, the Agency concedes, consistent with well established Authority precedent, that the award satisfies prong I of the BEP analysis. See, e.g., Soc. Sec. Admin., Branch Office, E. Liverpool, Ohio, 54 FLRA 142, 147-48 (1998) (contract provisions affording priority consideration rights are appropriate arrangements under § 7106(b)(3) of the Statute). With respect to prong II, the Authority has held that a remedy of a retroactive promotion properly reconstructs the agency's actions when the arbitrator finds that the agency would have selected the grievant, but for its violation of the parties' agreement. See, e.g., United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 13, 56 FLRA 647, 650 (2000). Here, the Arbitrator explicitly found that the grievant would have been selected for the position "but for" the Agency's violations of the settlement and collective bargaining agreements. Award at 14. Therefore, we conclude that the award satisfies prong II of the BEP test.
The Agency's insistence that the grievant would not have been selected for the position because he was not the "best qualified applicant" is not persuasive. Exceptions at 5. The Arbitrator construed "priority consideration" as requiring the Agency to consider the grievant "before, and without reference to [the] other candidates" and there is no dispute that this was not done. Award at 10. Moreover, the Arbitrator found that the Agency was required to select the grievant, unless "there were legitimate, job-related reasons" not to select him. Id. The Agency does not dispute the Arbitrator's construction of the grievant's priority consideration [ v59 p563 ] rights, which also comports with Authority precedent. See SSA, Chicago Region, 56 FLRA at 1086. Indeed, the Agency makes no claim that it would not have selected the grievant had it considered him alone and before others. As the Arbitrator's conclusion that there were no legitimate, job-related reasons for the grievant's non-selection is undisputed, we conclude that the Arbitrator's award reconstructs what the Agency would have done had it not violated the parties' settlement and collective bargaining agreements. Consequently, we conclude that the award satisfies prong II of the BEP test.
2. The Award Does Not Violate the Back Pay Act
The Authority has long held that an award of backpay under the Back Pay Act 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 has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health and Human Serv., 54 FLRA 1210, 1218-19 (1998). The Agency argues that the Arbitrator did not find that its violations of the parties' agreements constituted an unjustified or unwarranted personnel action.
Under the Authority's precedent, an agency's breach of both a settlement agreement and a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See, e.g., United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 711, 719 (2000) (citing Def. Logistics Agency, Def. Distrib. Region E., New Cumberland, Pa., 50 FLRA 282, 283 (1995)); see also GSA, 55 FLRA 493, 496 (1999). He