File 1: Authority's Decision in 58 FLRA No. 175
File 2: Opinion of Chairman Cabaniss

58 FLRA No. 175

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Daniel L. Feinstein 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. [n2] 

      The Arbitrator found that the Agency violated the parties' agreement by failing to provide priority consideration to the grievant in connection with the rerunning of a selection action. Among other things, the Arbitrator ordered the Agency to vacate the selections, rerun the selection process in accordance with the parties' agreement and designate a different selecting official.

      For the reasons set forth below, we find that the portion of the award directing the Agency to appoint a different selecting official is deficient, and we set it aside. We deny the Agency's remaining exceptions.

II.      Background and Arbitrator's Award

      The grievant is a GS-12 attorney in the Office of Hearings and Appeals who, at the time of the arbitration hearing before Arbitrator Feinstein, occupied an acting GS-13 position. The grievant previously had applied for one of three permanent GS-13 positions but was not selected. A grievance was filed, alleging that the Agency violated the parties' collective bargaining agreement by failing to comply with contractual time requirements for reviewing bargaining unit applications first and by improperly soliciting recommendations from local Agency officials. The grievance was not resolved and proceeded to arbitration before Arbitrator Mills. Arbitrator Mills found that the Agency violated the agreement and directed the Agency to vacate the selections and designate a different selecting official to reconsider the applicants. No exceptions were filed to the Mills award.

      The Agency thereafter vacated the selection actions. A different selecting official reviewed the well-qualified list of bargaining unit employees but did not select any of the candidates. Instead, on receipt of a second list of candidates that included both bargaining unit and non-bargaining unit candidates, the selecting official selected the same three individuals who had been selected previously. Two of the three selectees were bargaining unit employees, whose names had appeared on the first list of well-qualified candidates, and the third selectee was a non-bargaining unit employee. A grievance was filed that ultimately led to a hearig before Arbitrator Feinstein.

      The Union argued before Arbitrator Feinstein that the Agency violated various provisions of the parties' agreement by, among other things, failing to provide the grievant with priority consideration based on the earlier violation of the agreement. The Union asserted that, "but for the Agency's misfeasance, the Grievant would have been promoted to Senior Attorney, GS-13." Award at 13, 14. As a remedy, the Union requested that the Arbitrator order the Agency to vacate the selection actions and retroactively promote the grievant, with backpay.

      The Agency argued that the only issue before the Arbitrator was whether the Agency had complied with the award of Arbitrator Mills.

      The Arbitrator rejected the Agency's proposed formulation of the issue. While stating that the Mills award "provides insight into a proper interpretation" of the parties' agreement, the Arbitrator found that he lacked the authority "to determine whether conduct violates a [ v58 p740 ] previous award." Id. at 17. In the Arbitrator's view, "the issue to be decided herein must be whether the conduct complained of violates the agreement, not whether it violates a previous award." Id. Consequently, the Arbitrator framed the issue before him as "whether the non-selection of the Grievant for a vacant Senior-Attorney position . . . violated the National Agreement and, if so, what is the proper remedy?" Id. at 16.

      In resolving this issue, the Arbitrator examined the priority consideration provisions of the parties' agreement. [n3]  Analyzing Article 26, Section 13(B)(2) first, the Arbitrator found that when an erroneous promotion has been vacated, employees who were considered well-qualified but were not selected are entitled to priority consideration before other candidates are considered. Noting the undisputed fact that the grievant was in the well-qualified group when the initial selections were made, the Arbitrator concluded that she was "a member of the class of employees entitled to priority consideration . . . ." Id. at 17. The Arbitrator determined that the grievant had not been given priority consideration.

      Analyzing Article 26, Section 13(C) next, the Arbitrator found that it requires that the names of employees exercising priority consideration be provided to the selecting official before referral of eligible candidates to the assessment panel is made. [n4]  In so finding, the Arbitrator rejected the Agency's assertion that the Mills award contemplated that the selection action would be rerun from the point at which the referrals are received by the selecting official. Among other things, the Arbitrator noted that the grievant's priority consideration was not at issue in the grievance before Arbitrator Mills.

      Based on the evidence, the Arbitrator concluded that the Agency's conduct "on its face, violates Article 26, Section 13" of the parties' agreement. Id. at 20. To remedy the violation, the Arbitrator ordered the Agency to vacate the selections and to rerun the selection action. The Arbitrator also directed that a different selecting official from outside the region be appointed "[t]o avoid even the appearance of impropriety or predetermination in the third selection process[.]" Id. at 23.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the award is contrary to 5 U.S.C. § 2302(b) "in granting a priority consideration in addition to rerunning the selection process." [n5]  Exceptions at 5. The Agency states that the Mills award, with which it complied, required the Agency to adhere to the parties' agreement by giving bargaining unit employees first consideration and by limiting the type of information that would be considered in the selection process. The Agency asserts that the grievant "was placed in exactly the same position as she would have been, but for the procedural violations[,]" that Arbitrator Mills found. Id. at 6. The Agency further asserts that granting a priority consideration, "in addition to placing her in the position she would have been in would be willfully obstructing the selectees and others and place them in a worse position[.]" Id. Accordingly, the Agency concludes, "requiring the Agency both to rerun the selection procedure and to provide the grievant a priority consideration violated merit system principles." Id. [ v58 p741 ]

      The Agency also asserts that, by vacating the positions, the award is contrary to 5 U.S.C. § 7513(a), underwhich an agency may take an adverse action "only for such action as will promote the efficiency of the Federal service." According to the Agency, the Arbitrator required the Agency to demote the original selectees, despite the fact that they were qualified for the position. Further, citing decisions of the Merit Systems Protection Board (MSPB), the Agency asserts that "taking an action against one employee to comply with an award of another employee is not proper if the originally selected employee is not at fault." Id. at 7. The Agency adds that the requirement to demote the bargaining unit selectees is also inconsistent with the provision of the parties' agreement providing that bargaining unit employees will be subject to adverse actions only for just cause.

      Third, the Agency asserts that the award violates § 7106(a)(2)(B) of the Statute by requiring the Agency to use a selecting official from outside the regional office. In support, the Agency cites NLRB, 50 FLRA 88 (1995) (NLRB).

      Finally, the Agency maintains that, by determining that the Mills award required that the grievant be granted priority consideration, the award in this case fails to draw its essence from the agreement, exceeds the Arbitrator's authority and is based on a nonfact.

B.     Union's Opposition

      The Union maintains that the Agency's exceptions do not provide a basis for finding the award deficient.

IV.     Analysis and Conclusions

A.     Contrary to Law Claims

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See Id.

1.      5 U.S.C. § 2302(b)

      The Agency argues that the award, which requires the Agency to grant both a priority consideration and to rerun the selection action, is contrary to 5 U.S.C. § 2302(b). The two merit principles identified by the Agency are found in § 2302(b)(4) and (6). See note 5, supra.

      Under § 2302(b)(4), it is a prohibited personnel practice to deceive or willfully obstruct any person with respect to such person's right to compete for employment. See AFGE, Local 704, 57 FLRA 468, 475 (2001). Under § 2302(b)(6), a prohibited personnel practice requires an intentional or "purposeful taking of a personnel action in such a way as to give preference to a particular individual for the purpose[] of improving her prospects for employment." NFFE, Local 1658, 55 FLRA 668, 672 (1999) (citing Special Counsel v. Byrd,
59 M.S.P.R. 561, 570 (1993)). Section 2302(b)(6) does not require that an unauthorized promotion actually result in an advantage, but only that the purpose of the personnel action be to give an advantage. See Id. at 672 (citing Special Counsel v. DeFord, 28 M.S.P.R. 98, 104-05 (1985)).

      The Agency has not established that the award of priority consideration would require the Agency to give the grievant an unlawful preference or advantage, in violation of merit system principles, in order to improve her chance of being promoted permanently to one of the GS-13 vacancies. Under the parties' agreement, as well as accepted practice, priority consideration serves a remedial purpose of correcting an erroneous promotion action. Having found that the Agency's conduct violated the parties' agreement, the Arbitrator directed the Agency to take remedial action that would correct the improper promotions in this case. Nothing in the award mandates that the grievant be selected; rather, the award simply provides for consideration of the grievant, in advance of other candidates. The award also does not preclude the Agency from considering other candidates, after providing the grievant with priority consideration. Additionally, the MSPB has recognized that priority consideration is an appropriate remedy for an improper employment practice. See, e.g., Azdell v. OPM, 89 M.S.P.R. 88 (2001). As such, the award of priority consideration in this case does not constitute an unlawful preference or advantage.

      Furthermore, although the Agency claims that the award of priority consideration "would be willfully obstructing the selectees and others and place them in a worse position," the Agency has provided no support for a finding that priority consideration constitutes "willful obstruction." Exceptions at 6.

2.     5 U.S.C. § 7513

      The Agency asserts that the award violates 5 U.S.C. § 7513(a) by requiring the Agency to demote [ v58 p742 ] the original selectees, despite the fact that they were qualified for the position.

      5 U.S.C. § 7513 establishes that adverse actions such as removals, suspensions for more than 14 days, reductions in grade or pay, or furloughs for 30 days or less must be based on "such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a). In the Agency's view, "requiring the Agency to vacate the position and demote the selectees when they were all fully qualified for the position would require the Agency to process a change to lower grade (demotion) without cause." Exceptions at 7. Citing MSBP decisions for the proposition that "taking an action against one employee to comply with an award of another employee is not proper if the originally selected employee is not at fault," the Agency asserts that there has been "no showing that [the selected employees] have committed any misconduct." Id. at 7-8. We find that the Agency's exception does not establish that the award is contrary to law.

      As noted previously, the Arbitrator ordered the Agency to vacate the selections and rerun the selection action. Neither vacating a selection nor rerunning a selection action constitutes an adverse action within the meaning of § 7513(a). In addition, the Arbitrator did not expressly order the Agency to demote the employees. Although the Arbitrator apparently assumed that the Agency would take such action, there is nothing in the award to suggest that the Agency could not have taken some other action, such as a temporary assignment to another position as the same grade, pending the rerunning of the selection action. [n6] 

      The MSPB decisions on which the Agency relies also do not support the Agency's position. In Quinney v. Dep't of the Army, 3 M.S.P.R. 1 (1980) (Quinney), the agency demoted an employee in order to retroactively promote a different employee against whom the agency had allegedly engaged in unlawful discrimination. When the demoted employee successfully challenged the demotion, the employee was reinstated. The employee who had allegedly been discriminated against was thereafter removed from the position and appealed that removal to the MSPB. The MSPB found that an adverse action had occurred within the meaning of § 7513 and that the rescission of the first employee's demotion did not justify the second employee's demotion. Finding that the agency "had two employees required to be in GS-7 positions[,] . . . the agency had the responsibility of treating both fairly, through the exercise of discretion in making assignments." 3 M.S.P.R. at 4.

      In Carter v. Dep't of the Army, 11 M.S.P.R. 532 (1982), the MSPB found improper an agency's action of demoting an employee following its decision to retroactively promote a different employee to the position as part of a corrective personnel action. The MSPB stated that "the phrase `such cause as will promote the efficiency of the service' does not authorize a demotion of an employee simply because an agency selected a particular course of action to implement another employee's personnel action." Id. at 533 (quoting Quinney, 3 M.S.P.R. at 3).

      In both of the above cases, the agencies' conduct in selecting the employees who were later removed from their positions, was not itself improper. In direct contrast, the selections that the Arbitrator vacated in this case, were a direct consequence of the Agency's improper conduct. The employees who were selected based on the Agency's non-compliance with the parties' agreement are not entitled, as a matter of law or the agreement, to retain the benefit of the Agency's improper conduct.

      In sum, we conclude that the Agency has not established that the award is contrary to 5 U.S.C. § 7513.

3.     § 7106(a)(2)(B)

      The Agency asserts that the award violates § 7106(a)(2)(B) of the Statute by requiring the Agency to use a selecting official from outside the regional office. In support, the Agency cites NLRB, 50 FLRA 88. In NLRB, the Authority set aside a portion of an award barring a selecting official from participating in a rerunning of the selection action on the basis that such an award interfered with the agency's right to assign work. See 50 FLRA at 93-94.

      Subsequent to NLRB, the Authority established a framework for resolving claims that an arbitrator's award violates management's rights under § 7106 of the Statute 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. [ v58 p743 ] Under Prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. An award that fails to satisfy either Prong I or Prong II will be set aside or remanded to the parties, as appropriate. Soc. Sec. Admin., Boston Reg. (Reg. 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 269 (2001) (citation omitted).

      The portion of the award directing the Agency to appoint a different selecting official affects the Agency's right to assign work under § 7106(a)(2)(B) of the Statute. See, e.g., NLRB, 50 FLRA at 93-94. Assuming, without deciding, that this portion of the award satisfies Prong I of BEP, we find that it fails to satisfy Prong II because it does not reflect a reconstruction of what the Agency would have done had it not violated the parties' agreement.

      In directing the Agency to appoint a different selecting official, the Arbitrator found that such an order would "avoid even the appearance of impropriety or predetermination in the third selection process[.]" Award at 23. However, the Arbitrator made no finding, and there is no record evidence, that the parties' agreement or any law, rule or regulation requires the Agency to use a different selecting official when rerunning a selection action. Thus, there is no showing that the Agency would have designated a different selecting official had the Agency not violated the parties' agreement. [n7]  In rerunning the selection action, the Agency retains the authority to appoint any selecting official it chooses, consistent with its right to assign work under the Statute.

B.     Remaining Exceptions

      The Agency asserts that, by determining that the Mills award required that the grievant be granted priority consideration, the award in this case fails to draw its essence from the agreement, exceeds the Arbitrator's authority and is based on a nonfact. We reject these contentions. Arbitrator Feinstein made no finding that the Mills award required that the grievant be given priority consideration.

      We also reject the Agency's additional claim that the award's requirement to demote the bargaining unit selectees is inconsistent with the provision of the parties' agreement providing that "[b]argaining unit employees will be subject to disciplinary or adverse action only for just cause." Exceptions at 7. As noted earlier, the Arbitrator did not direct the Agency to take an action that is inconsistent with the just cause provision of 5 U.S.C. § 7513. Assuming that the just cause provision of the parties' agreement is to be interpreted in the same manner as § 7513, and absent any evidence to the contrary, we find that the award does not fail to draw its essence from the parties' agreement under the standard set forth in United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (award not deficient as failing to draw its essence from the parties' collective bargaining agreement where excepting party fails to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement).

V.      Decision     

      We set aside the portion of the award directing the Agency to appoint a different selecting official. We deny the remaining exceptions.

File 1: Authority's Decision in 58 FLRA No. 175
File 2: Opinion of Chairman Cabaniss

   Chairman Cabaniss's concurring opinion appears at the end of this decision.

   The Union twice requested permission, under § 2429.26 of the Authority's Regulations, to supplement its opposition with citations to Authority decisions, which the Union states involve the same parties and similar facts and support the Union's position in this case. As the Authority applies its precedent, as appropriate, in resolving cases before it, there is no basis on which to grant the Union's request. See United States Dep't of Trans., Fed. Aviation Admin., Mike Monroney Aeronautical Ctr., 58 FLRA 462, 462 n.2 (2003); United States Dep't of the Interior, Bureau of Reclamation, Great Plains Region, 42 FLRA 902, 902 n.1 (1991).

   Section 13(B)(2) provides, in pertinent part:

If the action taken to correct an erroneous promotion was to require that the position be vacated, employees who were not promoted or given proper consideration because of the violation (that is, employees in the well-qualified group who were not selected . . .) will be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action.

Section 13(C)(3) provides, in pertinent part:

Prior to the referral of eligible candidates to the assessment panel, the name(s) of the employee(s) requesting to exercise priority consideration will be referred to the selecting officer. The selecting officer will make a determination on the requests prior to the assessment panel's evaluation of any other candidates for the vacancy.

Award at 6-7.

   Among other things, assessment panels develop and apply assessment criteria, establish a list of well-qualified candidates and provide input to the selecting official, if requested. See Exceptions, Attachment 3 at 11-12.

   5 U.S.C. § 2302(b) provides, in pertinent part:

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-

. . . .

(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;

. . . .

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment[.]

   These employees may, of course, reapply for the positions when the Agency reruns the selection action.

   The Agency's use of a different selecting official in rerunning the selection following the Mills award does not establish that the Agency is required to use a different selecting official in this case.