File 2: Opinion of Chairman Cabaniss
[ v62 p125 ]
Chairman Cabaniss, dissenting in part:
I write separately to explain why I disagree with the finding that the "retroactive appointment" remedy for the grievant was imposed by the arbitrator in response to the agency's contract violation for failing to provide "proper consideration" to all bargaining unit employees prior to seeking external applicants. Because the arbitrator's award was unclear whether the retroactive appointment remedy was granted based upon the violation of not affording the grievant a preference based upon his service-connected disability (veterans' preference), I would find that the Authority must address on the merits the agency's exception alleging that the application of a veterans' preference to the grievant for this personnel action is contrary to law.
The AWARD portion of the decision, in its entirety, reads as follows:
The grievance was filed in a timely manner and the grievance is affirmed in part. The agency did not afford proper consideration to bargaining unit employees in violation of the Master Labor Agreement. The Agency did not afford the [g]rievant disabled veteran preference eligible rights. The grievant 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. The Agency is instructed to give proper consideration to bargaining unit employees. The Agency will pay for reasonable attorney fees and costs incurred by the [g]rievant and the Union in this case. Th[e] Arbitrator will retain jurisdiction for a period of 90 days for any clarification of the award and with regard to the determination of any damages in this case.
Award at 13-14.
As noted in the majority opinion, the Arbitrator found a contract violation for failing to provide bargaining unit employees "proper consideration" prior to considering external applicants for the position at issue here (Award at 9), and a violation of law, rule, or regulation from the agency's failure to consider this personnel action as a "competitive appointment" for which the grievant was entitled to certain veterans' preference rights (Award at 13). The agency challenged the award as being contrary to the laws, rules, and regulations governing veterans' preference. The majority finds no need to address this exception by finding that there remains an alternative basis for upholding the award even if the award does violate veterans' preference laws, rules, and regulations, i.e., the contract violation, which is not challenged by the agency. Put more directly, the majority finds that the arbitrator relied on the contract violation to award the retroactive appointment, and as the contract violation is not challenged there remains an alternative basis for upholding the award.
As is clear from the quoted part of the decision, supra, the award is not at all clear in explaining whether the remedy of a retroactive appointment is based upon the contract violation, the violation of veterans' preference rights, or both. One possible option would be to remand to the arbitrator for an explanation of the award's rationale for the retroactive appointment remedy. However, as the arbitrator provided the agency the option of awarding the grievant either priority consideration for any future appointment, or an actual retroactive appointment, it could be concluded that the former remedy option was in response to the contract violation for failing to afford "proper consideration" to the grievant as a bargaining unit employee, while the latter remedy option was in response to the arbitrator's belief that the agency failed to afford the grievant his veterans' preference rights. Consistent with that, I would find that the Authority must resolve on the merits the agency's contrary to law claim pertaining to veterans' preference rights.
Related to the disagreement discussed above, I also disagree with the majority's decision not to seek an advisory opinion from the Office of Personnel Management (OPM). The basis for this disagreement stems from 5 U.S.C. § 7105(i), where Congress explicitly instructed that:
In the exercise of the functions of the Authority under this title, the Authority may request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority.
In this case it is not clear whether the grievant is entitled to a veterans' preference where he applied for a position within the same agency under an external application process, i.e., anyone, including those outside the Federal government, may apply for the position. In this respect, there is relative uncertainty in resolving this question. For instance, OPM in its regulations states that a veterans' preference "does not [ v62 p126 ] apply . . . to inservice placement actions such as promotions." [n1] 5 C.F.R. § 211.102(c); See also, Brown v. Dep't of Veterans Affairs, 247 F.3d 1222 (Fed. Cir. 2001); Bates v. Runyon, 97 F.3d 1464 (10th Cir. 1996); Glenn v. USPS, 939 F.2d 1516, 1523 (11th Cir. 1991) (Glenn) ("[V]eterans' preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency."); Qualls v. United States, 230 Ct. Cl. 534; 678 F.2d 190, 196-97 (Ct. Cl. 1982). Here, we note that the grievant may have received either a "promotion," which is defined as "a change of an employee, while serving continuously within the same agency: (i) [t]o a higher grade when both the old and new positions are under the General Schedule or under the same type grade . . .." 5 C.F.R. § 210-102(b)(11) (emphasis added) or, the grievant may have received a reassignment, which means "a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion." 5 C.F.R. § 210- 102(b)(12) (emphasis added). In any event, under the terms of the above OPM definitions, had the grievant been offered and accepted one of the advertised jobs, such action may have resulted in either a "promotion" or "reassignment."
Of course, it is also possible that the grievant may have received an "appointment" if he was hired through the external placement process, rather than through an internal process as the union argues. If the grievant's placement is considered an "appointment," the union argues that the grievant would be entitled to a veterans' preference under 5 C.F.R. § 335.106, which mirrors past statutory language as part of the Veterans Employment Opportunities Act (VEOA) found in 5 U.S.C. § 3304(f). [n2] VEOA, Pub.L. No. 105-3