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62 FLRA No. 32
DEPARTMENT OF THE AIR FORCE
KIRTLAND AIR FORCE BASE
AIR FORCE MATERIEL COMMAND
ALBUQUERQUE, NEW MEXICO
OF GOVERNMENT EMPLOYEES
July 12, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James Evenson 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 determined that the Agency failed to comply with the parties' collective bargaining agreement in considering employees, including the grievant, for vacant positions and failed to afford the grievant, an internal disabled applicant, veterans' preference eligible rights. For the reasons that follow, we find the award is deficient insofar as it awards attorney fees in the absence of a finding that the grievant lost pay, allowances or differentials under the Back Pay Act. We deny the Agency's remaining exception.
The grievant, a 30 percent disabled veteran who is employed by the Agency, applied for GS-7 and GS-9 developmental positions within the Agency as both an internal and external candidate. Prior to interviewing external candidates, the Agency conducted a computer search of only its internal GS-7 candidates to determine if any qualified to interview. The Agency concluded that only four or five of its internal applicants were qualified for the vacant positions. Award at 5. As such, the Agency determined that it would interview only external applicants, including the grievant.
At the conclusion of the interviewing process, the Agency hired five applicants out of seven that were interviewed, but not the grievant. The grievant filed a grievance claiming he should have been interviewed as an internal candidate and that he was entitled to a veterans' preference under the external process. After the Agency denied the grievance, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Did the Agency comply with the Master Labor Agreement (MLA) and various Federal Regulations and Laws in filling several GS 1102-9/12 Contracting Specialist positions? If not, what is the proper remedy?
Award at 2.
The Arbitrator found under Article 12.02(b) of the parties' agreement that the Agency should have considered both GS-7 and GS-9 internal applicants and it should have done more than merely generate a computer list of possible internal applicants before deciding to consider external candidates. [n2] Award at 12. In this respect, the Arbitrator found that the Agency did not sufficiently consider the internal applicants and that this failure violated Article 12.03(b). In reaching this decision, the Arbitrator rejected the Agency's claim that, under Article 12.07 of the parties' agreement, it did not need to interview those internal applicants who were qualified because it did not locate ten qualified internal applicants. [n3] Id.
[ v62 p122 ] The Arbitrator concluded that:
The Agency did not afford proper consideration to bargaining unit employees in violation of the Master Labor Agreement. The Agency did not afford the grievant disabled veteran preference eligible rights. The [g]rievant is entitled to a retroactive appointment or priority consideration for any future appointment (to be determined by the Agency) along with any rights to any losses in back pay or losses in fringe benefits.
Award at 13-14. The Arbitrator retained jurisdiction for 90 days "with regard to the determination of any damages in this case[,]" and directed the Agency to "pay for reasonable attorney fees and costs incurred by the [g]rievant[.]" Id. at 14.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the award is contrary to law. Specifically, the Agency claims that the grievant is not entitled to a veterans' preference because such preference is not available for current, Federal employees competing for selection to a position. The Agency cites Brown v. Dep't of Veterans Affairs, 247 F.3d 1222, 1224 (Fed. Cir. 2001), which states "[c]ourts also have determined that, under the VPA [Veterans Preference Act], veterans' preference `does not apply to an employee's transfer or other intra-agency movement.'" In this respect, the Agency notes that, regardless of how the Arbitrator characterizes it, the grievant was not seeking an initial government appointment but rather a promotion or transfer as he was already employed by the Agency. Exceptions at 7. The Agency also notes that, insofar as the Arbitrator was relying upon the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) in determining that the grievant has veterans' preference rights, that reliance was misplaced because the VEVRAA, like the VPA, grants veterans' preference only to applicants who are seeking an initial appointment within the Federal government. Exceptions at 6 (citing 38 U.S.C. § 4214(b)(1)). [n4]
The Agency also argues that the award is contrary to law because the Arbitrator awarded attorney fees without satisfying the requirements of the Back Pay Act. Exceptions at 8. In this regard, the Agency claims that in order to be eligible to receive back pay under the Act, an arbitrator must find that "(1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in a loss of pay, allowances, or differentials by the employees." Exceptions at 9 (citing United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000)). According to the Agency, "[t]here is nothing in the decision from which it can even be inferred that, but for the Agency's alleged failure, the grievant would have been promoted into any one of those positions." Exceptions at 10. As such, it claims that the award does not meet the second prong of the Act. The Agency also claims that, because the award provides it discretion to grant the grievant either a retroactive promotion or priority consideration, it could "simply grant priority consideration to the grievant for a future opening and it would be in compliance with the Arbitrator's award." Id. at 11. In such event, the Agency argues that there would be no threshold award of backpay permitting attorney fees under the Act.
B. Union's Opposition
The Union argues that the Arbitrator's award is not final and the Agency's exceptions are interlocutory because the Arbitrator has retained jurisdiction "with regard to the determination of any damages in this case." Opposition at 10. The Union cites to United States Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., 57 FLRA 924, 926 (2002) (Health & Human Services), for the proposition that "[e]xceptions are considered interlocutory when the arbitrator has declined to make a final disposition as to a remedy." Opposition at 10.
The Union also argues that the Agency's contrary to law assertion fails to demonstrate that the award is deficient because the grievant's external application sought an appointment, not a promotion. Opposition at 5-6. Accordingly, it argues that the decisions relied on by the Agency, which address promotions or other intra-agency transfers, are distinguishable. Id. at 7.
Moreover, the Union contends that the award is consistent with 5 C.F.R. § 335.106, which states:
Preference eligibles or veterans who have been separated under honorable conditions from the armed forces after completing (as determined by the agency) 3 or more years of continuous active military service may compete for vacancies under merit promotion when an agency accepts applications from individuals outside its own [ v62 p123 ] workforce. Those veterans selected will be given career or career conditional appointments under § 315.611 of this chapter.
It argues that consistent with this provision, the grievant was entitled to a veterans' preference because he would have received an appointment. Opposition at 6. It further claims that under the Veterans Equal Opportunities Act (VEOA) 5 U.S.C. § 3304(f)(1) and (2), the grievant is considered as a preference eligible when applying for a position as an external candidate. [n5] Id. at 8.
Finally, the Union contends that even if the exceptions are properly before the Authority, the Arbitrator "determined that [the grievant] was entitled to a retroactive appointment and back pay to remedy the unwarranted Agency action." Opposition at 11. In this respect, the Union argues that the award of back pay is consistent with the Back Pay Act because there is "ample record evidence to show that, but for either of the Agency's two unwarranted actions, [the grievant] would have received the promotion." Id. at 12.
IV. Analysis and Conclusions
A. The Award is Not Interlocutory
Section 2429.11 of the Authority's Regulations pertinently provides that "the Authority . . . ordinarily will not consider interlocutory appeals." In terms of arbitration cases, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., Washington, D.C., 60 FLRA 333, 334 (2004). An arbitration award that postpones the determination of an issue submitted to arbitration or a remedy does not constitute a final award subject to review. See id.
The award in this case resolved all of the issues submitted to arbitration. It addressed the grievance's contractual and veterans' preference claims, ruled on both, and ordered a remedy: "retroactive appointment or priority consideration for any future appointment (to be determined by the Agency) along with any rights to any losses in back pay or losses in fringe benefits." Award at 14. Although the Arbitrator "retain[ed] jurisdiction for a period of 90 days for any clarification of the award and with regard to the determination of any damages[,]" id., there is no indication that the Arbitrator or parties contemplated the introduction of some new measure of damages. Instead, the only issues left unresolved by the Award were with respect to the amount of back pay or fringe benefits, if applicable. Thus, we construe the Arbitrator's retention of jurisdiction as intended only to assist the parties in their computations of those remedies as necessary. In this regard, this retention of jurisdiction is not enough to render the award interlocutory. See, e.g., Office of Personnel Management, 61 FLRA 358, 361 (2005) (award is final when it awards fees or damages, but leaves the amount of those damages to be determined); Social Security Admin., Baltimore, Maryland, 60 FLRA 32, 33 (2004) (award final where arbitrator retains jurisdiction solely to assist parties in determining "costs owed to the Union"); United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 158 (1999) (award is final where arbitrator retains jurisdiction to assist parties in determining back pay and interest). In this respect, we also note that the Union's reliance on Health & Human Services is misplaced because in that case, exceptions were filed to a "Phase One Interim Award[,]" and the Arbitrator specifically deferred certain issues for subsequent proceedings. Health & Human Services, 57 FLRA at 926. Accordingly, we find that the award is not interlocutory.
B. There is no need to resolve the Agency's exception that the award is deficient as contrary to Veterans' preference law
The Authority has consistently recognized that when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient in order to establish that the award is deficient. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md., 56 FLRA 292, 299 (2000). If the excepting party has not demonstrated that the award is deficient on one of the grounds relied on by the Arbitrator, then it is unnecessary to address exceptions to the other ground. See id.
The Arbitrator found the Agency had committed violations based upon two, independent grounds. First, the Arbitrator determined that the Agency failed to provide the grievant veterans' preference rights. There is [ v62 p124 ] no dispute that these rights are set forth in law. [n6] See Award at 13, 14. Second, the Arbitrator also found that the Agency violated Article 12.03(b) of the parties' agreement when it failed to properly consider bargaining unit employees, including the grievant. See id. at 11, 12, 14. The Agency does not except to the finding of a contract violation, which serves as a separate and independent ground for the remedies granted by the Arbitrator. Therefore, the Agency has not demonstrated that the award is deficient.
Accordingly, we need not address the merits of the Agency's exception as to veterans' preference. See, e.g., United States Dep't of Defense, Rhode Island Nat'l Guard, Cranston, R.I., 57 FLRA 594, 597 (2001).
C. The Award of Attorney Fees is Contrary to Law
Under the Back Pay Act, an award of back pay 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 United States Dep't of Health & Human Services, 54 FLRA 1210, 1218 (1998) (Member Pope dissenting in part) (HHS). Moreover, the Authority has found that awards ordering retroactive promotions with backpay satisfy the requirements of the Back Pay Act where an arbitrator finds that the grievant would have been promoted but for the agency's violation of a collective bargaining agreement. See, e.g., United States Dep't of Labor, Wash., D.C., 59 FLRA 560, 563 (2004).
With regard to the first requirement, a breach of the parties' agreement constitutes an unjustified and unwarranted personnel action. General Services Admin., 55 FLRA 493, 496 (1999). Based on the Arbitrator's finding that the Agency breached the parties' agreement by not properly considering internal applicants for these vacancies, the first requirement under the Back Pay Act is satisfied. Id.
Under the second requirement of the Back Pay Act, an arbitrator must find that the unwarranted and unjustified personnel action resulted in a loss of pay, allowances or differentials. HHS, 54 FLRA at 1218. In this case, the Arbitrator stated that the grievant is entitled to either a retroactive appointment or a priority consideration for any future appointment. In making this determination, the Arbitrator did not establish or identify how the Agency's violations caused the grievant to lose any pay, allowances, or differentials. See, e.g., United States Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, 60 FLRA 437, 442 (2004) (Member Pope dissenting in part); AFGE, Council 147, 59 FLRA 864, 865-66 (2004) (Member Pope dissenting). Accordingly, we find that as the award does not satisfy the second requirement of the Back Pay Act, any award of attorney fees is deficient. See 5 U.S.C. § 5596(b)(1).
The Agency's exception pertaining to veterans' preference is denied. The award of attorney fees is deficient as contrary to sections (b)(1) and (b)(1)(A)(ii) of the Back Pay Act and is set aside.
Footnote # 1 for 62 FLRA No. 32 - Authority's Decision
Footnote # 2 for 62 FLRA No. 32 - Authority's Decision
Managers with vacancies will consult with the staffing office to assure that consideration is given to bargaining unit employees prior to a determination to go to outside sources. Where profiles are available, the profiles will be referred to the appropriate official for review.
Opposition, Attachment 1.
Footnote # 3 for 62 FLRA No. 32 - Authority's Decision
The area of consideration will be broad enough to identify 10 best qualified candidates. If less than 10 best qualified candidates are located in the initial area of consideration, the area of consideration may be extended as follows: . . . [.]
Opposition, Attachment 1.
Footnote # 4 for 62 FLRA No. 32 - Authority's Decision
Footnote # 5 for 62 FLRA No. 32 - Authority's Decision
(1) Preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.
(2) If selected, a preference eligible or veteran described in paragraph (1) shall receive a career or career-conditional appointment, as appropriate.
Footnote # 6 for 62 FLRA No. 32 - Authority's Decision