Veterans Administration San Juan Medical and Regional Office Center and AFGE Local 2408 (Authority decision, April 22, 1986)

Final FLRA decision. The Authority modifies an arbitration award concerning a claims examiner position. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An employee at the Veterans Administration's San Juan center grieved repeated nonselection for claims examiner positions. An arbitrator found that the agency used discriminatory, nonmerit selection criteria and ordered her immediate selection for a GS-11 position if one was open, or priority consideration for a later opening. The Authority held that an arbitrator may direct a selection only after finding that the employee would have been selected but for the agency's improper conduct. Because the arbitrator had not made that finding, it struck the immediate-selection remedy from the award. The decision did not strike the arbitrator's separate direction for priority consideration.

Decision snapshot

• Authority: Management's selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Award modified to remove the immediate-selection remedy.
• Key point: Improper selection procedures alone do not support an order selecting a specific employee without a finding that the employee would have been chosen.

Full text (FLRA public release)

[ v21 p418 ]

21:0418(57)AR

The decision of the Authority follows:

21 FLRA No. 57

VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER,
SAN JUAN, PUERTO RICO
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION NO. 2408
Union

Case No. 0-AR-1044

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Richard H. Siegel filed by the Veterans Administration (Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievant alleged that she was not selected for vacant claims examiner positions for which she applied over a three-year period because of discrimination over an alleged "whistleblowing" incident and over her activities as a union representative. The Arbitrator determined that the grievant was fully qualified for positions up to and including that of Claims Examiner GS-11. He found that the selecting officials had used highly subjective criteria and had selected persons who were no more experienced or less experienced than the grievant. The Arbitrator concluded that the Activity violated the parties' agreement by repeatedly denying her applications for the desired position, and that the Agency's actions were discriminatory and based upon non-merit reasons rather than job related selection criteria. In his award, the Arbitrator sustained the grievance in its entirety and, as a remedy, directed the Agency to immediately select the grievant for the position of GS-11 Claims Examiner in the Adjudication Division. The Arbitrator added that if there was no GS-11 Claims Examiner position vacant at the time of his award, then the grievant was to be granted priority consideration for such a position as soon as one became vacant. The Arbitrator also denied the grievant's request for retroactive promotion and backpay.

III. EXCEPTION

A. Contention

As to its exception, the Agency alleges that the award is contrary to law. Specifically, the Agency contends the award violates management's right to select under section 7106(a)(2)(C) of the Statute in that the Arbitrator failed to determine that the grievant would have been selected for any of the positions for which she applied had the Activity not violated the agreement.

B. Analysis and Conclusion

The Authority has consistently held in cases of this nature that management's right to make the actual selections for promotion can only be abridged if the Arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. E.g., Office of the Secretary, U.S. Department of Transportation and American Federation of Government Employees, Local 3313, AFL-CIO, 17 FLRA No. 14 (1985); American Federation of Government Employees, Local 12 and United States Department of Labor, 15 FLRA 543 (1984). In terms of this case, the Authority concludes that the Arbitrator failed to make the necessary finding. Although the Arbitrator found that the Activity had violated the parties' agreement by failing to select the grievant and by actions that were discriminatory in nature and based upon non-merit reasons rather than job related selection criteria, he did not find that the grievant would have been selected but for the unwarranted actions. Consequently, that portion of the Arbitrator's award directing the immediate selection of the grievant for the position of GS-11 Claims Examiner is deficient as contrary to section 7106(a)(2)(C) of the Statute.

IV. DECISION

Accordingly, based upon the above analysis and conclusions, the Arbitrator's award is modified by striking the portion found deficient.

Issued, Washington, D.C., April 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY