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60 FLRA No. 12
OF GOVERNMENT EMPLOYEES,
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
June 23, 2004
Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition.
The grievances in this case concerned the manner in which the Agency filled several posted vacancies. The Arbitrator found that the Agency violated the parties' collective bargaining agreement and granted the grievants priority consideration. The Union excepts to the Arbitrator's failure to award the grievants retroactive promotions and back pay. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Over a period of time, the Agency advertised several vacant positions in the Office of Chief Information Officer (OCIO). One announcement was for three vacant positions in the Information Technology Reform (ITR) division of OCIO. Seven applicants under this vacancy announcement were selected for two positions in the Enterprise Program Information Center (EPIC), which is located in the Office of Systems Integration and Efficiency (OSIE), a totally separate division within [ v60 p42 ] OCIO. The EPIC positions had not been announced as vacancies, nor had applicants been solicited.
In a separate announcement, the Agency also advertised a vacant position in the Computer Services division. The Agency ultimately selected three applicants who applied for that position to fill three other positions in that division.
Finally, OSIE announced a vacant position in its main office. That position was never filled, but an applicant from the roster developed for that announcement was selected for a position in the Office of Real Estate Insurance within OCIO.
Four bargaining unit employees, three of whom had applied for various of the vacant positions and one who had applied for none of them, filed a grievance claiming that the Agency had conducted improper merit staffing procedures and requesting, among other things, retroactive promotions to GS-14/15 Computer Specialist positions and back pay. Essentially, the grievants claimed that they were never notified as to the vacancies that were filled without announcement and that the vacancy announcements were not used for the published positions for which they were announced. The grievance was not resolved and was submitted to arbitration.
B. Arbitrator's Award
The parties did not stipulate to the issue in the case and the Arbitrator adopted the Agency's statement of the issue, which was framed as follows:
Whether Management violated the HUD-AFGE Agreement, Article 13, Merit Promotion and Internal Placement, Sections 13.09 to 13.12, in the non-selection of four grievants.
Award at 7-8. In this regard, according to the Arbitrator, the essence of the Union's complaint is that the Agency's "management practices unfairly kept the [g]rievants from applying for job vacancy announcements because they were not advertised in a manner which revealed [m]anagement's aims for these positions, i.e., for [m]anagement to use the rosters as generic staffing rosters." Id. at 8.
Citing testimony by Agency witnesses, which he credited, the Arbitrator found that the actions taken by the Agency "with respect to using the Best Qualified List certificates to fill vacancies beyond those initially announced were consistent with" Agency regulations. [n1] Id. at 16. According to the Arbitrator, the Union "did not explain specifically how the explanations offered by the Agency's witnesses were incorrect." Id.
However, the Arbitrator also found that the Agency had failed to address a "serious deficiency" in its actions in filling the vacancies at issue, namely, "the lack of notice to employees and to the Union[.]" Id. Specifically, the Arbitrator found that "the Agency failed to take into consideration those provisions of the Agreement . . . which are implicated by the Agency's action in filling these vacancies in a manner which was not identified on the original postings." Id. According to the Arbitrator, even though it was appropriate for the Agency to use the Best Qualified List to fill more than one vacancy, or to cancel one certificate and fill the vacancy(ies) with candidates from another certificate, the Agency still had an obligation under the Agreement "to afford proper notice to employees in sufficient time so that they can compete for the additional vacancies for which the Best Qualified list certificate is to be utilized." Id.
The Arbitrator found that the Agency failed to comply with these provisions. Turning to the circumstances of the individual grievants, the Arbitrator found that "there are no violations presented beyond the notice and posting violations" he had previously found. Id. at 21. Applying § 13.12(1) of the parties' Agreement, the Arbitrator found, contrary to the Agency's contention, that priority consideration, as a remedy, is not limited to errors in properly ranking and certifying employees on the Best Qualified List, but includes, "among other things, the type of notice violations" involved in the grievance. [n2] Id. at 23. Further, the Arbitrator found that, under § 13.12(1), by providing for priority consideration as a remedy for documented procedural, regulatory, or program violations, the parties excluded the remedies requested by the Union, namely, retroactive promotion for the grievants to GS-14/15 positions, back pay and monetary damages, and other, unspecified administrative relief. Consequently, the Arbitrator concluded, based on § 13.12(1), that "the only appropriate remedy" for the four grievants "is priority consideration[.]" Id at 24.
III. Union's Exceptions
The Union excepts to the Arbitrator's award on the ground that the Arbitrator did not state why priority consideration is the only appropriate remedy. Specifically, [ v60 p43 ] the Union excepts to the Arbitrator's finding that § 13.12(1) excludes the remedies sought by the Union.
According to the Union, "violations of 5 USC do warrant retroactive promotions and back pay." Exceptions at 2 (emphasis in original). The Union claims, in this regard, that the Supreme Court, in Cornelius v. Nutt, 472 U.S. 648 (1985), held that an arbitrator must "apply the same substantive rules as the Merit Systems Protection Board does in reviewing an agency action." Exceptions at 1.
The Union states that it not only based its grievance on the parties' Agreement, but also on alleged violations of 5 U.S.C. §§ 2301, 2302, 7106, and 7116. In particular, the Union contends that the Agency, by "changing the requirements within the vacancy announcements and changing the location and duties performed within these new positions[,] deceived individuals as to what the nature of the position really was" and violated 5 U.S.C. § 2302. Id. at 2. The Union cites, in this regard, 5 U.S.C. § 2302(b)(11), which makes it a prohibited personnel practice to take or fail to take any personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. § 2301. Id. According to the Union, such a violation "opens up the possibilities of greater relief[,]" specifically, retroactive promotions and back pay. Id.
IV. Analysis and Conclusions
A. The Award is not Deficient on Essence Grounds
We construe the Union's argument that the Arbitrator erred in concluding that Article 13 of the parties' agreement excludes the remedies sought by the Union as a claim that the award fails to draw its essence from the agreement. In resolving exceptions contending that an award fails to draw its essence from a collective bargaining agreement, the Authority applies the deferential standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL)).
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligations of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575. The Authority and the courts defer to arbitrators in this context "because it [i]s the arbitrator's construction of the agreement for which the parties have bargained[.]" Id. at 577.
The Union has failed to demonstrate that the Arbitrator's interpretation of Article 13 as requiring the Agency to notify the Union and unit employees of changes in posted vacancies and to repost those vacancies is irrational, does not represent a plausible interpretation of Article 13, or manifestly disregards that provision of the agreement. Specifically, the Union fails to provide any support for its argument that application of Article 13 requires the remedies requested by the Union. Consequently, we find that the Union has not demonstrated that the Arbitrator's award fails to draw its essence from Article 13 of the parties' collective bargaining agreement.
Accordingly, we deny the Union's essence exception.
B. The Award is not Contrary to Law
When an exception alleges that an award is contrary to law, the Authority reviews the question of law and the Arbitrator's award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable legal standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
We construe the Union's arguments as a claim that the Arbitrator, as a matter of law, should have found a violation of 5 U.S.C. §§ 2301, 2302, 7106, and 7116 and, as a remedy, ordered retroactive promotions and appropriate back pay for the grievants. First of all, in this regard, the parties did not stipulate to the issues. In the absence of a stipulation, the Arbitrator framed the relevant issues in terms of whether the Agency had violated applicable provisions of Article 13 of the parties' collective bargaining agreement. As framed by the Arbitrator, the grievance did not involve prohibited personnel practices under 5 U.S.C. § 2302 or issues as to the other statutory provisions and precedent referenced by the Union.
As such, the Union provides no basis for concluding that the Arbitrator erred as a matter of law by failing to find a violation of 5 U.S.C. §§ 2301, 2302, 7106, and 7116. Moreover, contrary to the Union's unsupported [ v60 p44 ] assertion, violations of title 5 of the United States Code do not always warrant the award of a remedy, let alone a remedy of a retroactive promotion and back pay. See, e.g., United States Dep't of Defense, Army Chemical and Military Police Centers, Fort McClellan, Ala., 39 FLRA 457, 462-64 (1991); see also AFGE, Local 916, 57 FLRA 715, 717 n.7 (2002). Consequently, Cornelius v. Nutt and the statutes underlying that case are not relevant.
An award of a retroactive promotion with back pay is authorized under the Back Pay Act only when: (1) the aggrieved employee was affected by an unjustified and unwarranted personnel action; and (2) the personnel action resulted in a loss of pay by the employee because of a failure to be promoted. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124, 125 (2002). Assuming the violation of Article 13 found by the Arbitrator constitutes the requisite unjustified or unwarranted personnel action, the Arbitrator made no finding that but for the Agency's failure to comply with Article 13 the grievants would have been selected for promotion. Consequently, no basis exists for awarding back pay in the circumstances of this case. See United States Dep't of Veterans Affairs, Cleveland Regional Office, Cleveland, Ohio, 59 FLRA 248, 251 (2003).
Accordingly, we deny the Union's contrary to law exception.
The Union's exceptions are denied.
Relevant sections of Article 13 of the parties' collective bargaining agreement provide as follows:
Merit Promotions and Internal Placement
§ 13.02 - Equal Employment Opportunity. The parties agree that the staffingof all positions within the bargaining unit shall be accomplished without regard to political, religious or labor organization affiliation on nonaffiliation, marital status, race, color, sex, national origin, nondisqualifying disability or age.
. . . .
§ 13.04 - Notification to Union of Staff Vacancies. As a bargaining unit position becomes available, Management agrees to notify promptly the Union of its intent to staff or cancel the vacant position.
. . . .
§ 13.08 - Locating Candidates and Publicizing Vacancies. Vacancies in the bargaining unit which are to be filled by competitive placement procedures shall be announced and posted in the area of consideration. The procedures described below shall be followed.
(1) Area of Consideration. The minimum area of consideration shall be:
(a) Department-wide: GS-14 and above;
(b) Geographic Area or Headquarters: GS-13; and
(c) Local Commuting Area: GS-12 and below.
When the minimum area of consideration does not generate an adequate number of candidates, it may be expanded. However, at the discretion of Management, the initial area of consideration may be extended to fill vacancies that are hard to fill.
(2) Vacancy Announcements. Vacancy announcements shall include the following information:
(a) Announcement number and opening and closing dates;
(b) Title, series, and grade of the position;
(c) Number of vacancies to be filled;
(d) Geographic and organizational location;
(e) Summary statement of the principal duties and responsibilities;
(f) Minimum Office of Personnel Management (OPM) qualifications and eligibility requirements;
(g) All selective placement factors;
(h) Summary statement of the evaluation method and criteria, including relative weights to be used to rate and rank candidates. The criteria shall be expressed in terms of knowledges, skills, abilities and other characteristics. (KSAOs); [ v60 p45 ]
(i) Description of known promotion potential, if any;
(j) Permanent or temporary nature and, if temporary, the duration and whether the assignment can be made permanent;
(k) The area of consideration;
(l) Coverage of position under Fair Labor Standards Act (FLSA);
(m) Whether or not the position is in the bargaining unit;
(n) Where additional information may be secured;
(o) What constitutes an appropriate application;
(p) Written examination to be used, if any;
(q) A statement on Equal Employment Opportunity;
(r) A statement on smoking restriction;
(s) Where applications can be accepted or submitted.
(3) Posting periods.
(a) The number of calendar days that a vacancy announcement is open shall be determined by the level of difficulty in recruiting qualified candidates. The opening and closing dates shall be specified on the vacancy announcement. All vacancy announcements shall be open a minimum of fourteen (14) calendar days.
(b) When solicitation for the normal posting period and area would be clearly impractical because of extenuating circumstances (e.g., budgetary limitations, FTE limitations), the posting period may be shortened to a minimum of seven (7) days. The merit staffing record must contain complete documentation explaining the circumstances.
(c) Open continuous announcements, without specific closing dates, may be used to advertise recurring vacancies.
(4) Reposting, Extension or Cancellation.
(a) If a vacancy announcement has been posted and any significant information is later found to have been omitted or in error, an amended announcement shall be reposted citing the change(s) and whether or not the original applicants must refile in order to be considered. Posting periods shall be adjusted, if necessary.
(b) Extension of the closing date of an announcement shall be done by an amendment to the original announcement.
(c) Cancellation of an announcement shall be done by an amendment to the original announcement. The reasons for cancellation shall be noted on the amended announcement.
(5) Posting Vacancy Announcements. When positions are advertised, Management agrees to post vacancy announcements for both unit and nonunit positions on bulletin boards or other appropriate places within the area of consideration.
. . . .
§ 13.10 - Evaluation of Candidates.
. . . .
(6) Validity of Certificate. Certificates are valid for up to sixty (60) days. However, if a selectee declines before assuming the duties of the vacancy, the certificate may be used again to make a selection.
(7) Reuse of Certificate. The same certificate may be used again within sixty (60) days from the date of selection or cancellation for additional identical positions.
. . . .
§ 13.12 - Priority Consideration.
(1) Definition. Priority consideration is special placement consideration for an appropriate vacancy give to an employee who did not receive proper consideration in a prior competitive placement case due to a documented procedural, regulatory, or program violation.
(2) Appropriate Vacancy. An appropriate vacancy is the next available position for which the employee is interested and fully qualified and which has the same or less promotion potential as the one for which proper consideration was not given.
Award at 11-14, 16 and 22.
Footnote # 1 for 60 FLRA No. 12 - Authority's Decision
Footnote # 2 for 60 FLRA No. 12 - Authority's Decision