Veterans Administration, Winston-Salem, North Carolina and American Federation of Government Employees, Local 2880 (Authority decision, May 20, 1987)

Final FLRA decision. The Authority modifies an arbitration award to remove a retroactive promotion, backpay, and attorney fees. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator found nonmerit irregularities in a VA claims examiner selection and awarded the grievant a retroactive promotion, backpay, and attorney fees. He also found it impossible to determine whether the employee would have been promoted without the irregularities. The Authority held that the Back Pay Act requires a finding that the improper action caused lost pay. Because that finding was absent, it struck the promotion, backpay, and fee remedies while rejecting the agency’s unsupported bias claim.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); Back Pay Act at § 5596.
• Outcome: Retroactive promotion, backpay, and attorney fees struck from the award.
• Key point: A backpay remedy requires a causal finding that the employee would have received the promotion but for the improper action.

Full text (FLRA public release)

[ v27 p44 ]

27:0044(11)AR

The decision of the Authority follows:

27 FLRA No. 11

VETERANS ADMINISTRATION,
WINSTON-SALEM, N.C.
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2880
Union

Case No. 0-AR-1269

DECISION

I. Statement of the Case

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

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration in this case disputing the nonselection of the grievant for promotion to a GS-7 claims examiner position. The Arbitrator found "convincing evident or irregularities, omissions, and commissions in the selection process which indicate a reliance on non-job-related criteria as a basis for the nonselection of the grievant and which resulted in discrimination against the grievant for non-merit reasons" in violation of the parties' collective bargaining agreement. However, the Arbitrator concluded that it was impossible to determine that "the Grievant would have been promoted but for the improper selction procedures of the selecting official." Nevertheless, he was of the opinion that "a remedy of anything less than a retroactive promotion for the Grievant" would be "inadequate." Accordingly, as his award, the Arbitrator directed that the grievant be promoted to the claims examiner position retroactively with backpay. The Arbitrator also awarded the grievant reasonable attorney fees.

III. First Exception

A. Contentions

The Agency contends that the award is deficient because the Arbitrator was biased against management and in favor of the grievant.

B. Analysis and Conclusions

This exception provides no basis for finding the award deficient and is denied. The exception is totally devoid of any substantiation that the Arbitrator's award was procured by improper means; that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced. U.S. Army Corps of Engineers, New Orleans District and National Federation of Federal Employees, Local No. 1124, 13 FLRA 70 (1983); Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18 (1981).

IV. Second Exception

A. Contentions

The Agency contends that the Arbitrator's award of a retroactive promotion, backpay, and attorney fees is contrary to the specific requirements of the Back Pay Act, 5 U.S.C. section 5596. The Union concedes that under applicable authority the Arbitrator failed to adequately justify his award. However, the Union requests that the award be remanded for clarification and reevaluation of the relief awarded in this matter.

B. Analysis and Conclusions

We conclude that the award of a retroactive promotion, backpay, and attorney fees is deficient as contrary to the Back Pay Act. In order for an award of backpay to be authorized under the Back Pay Act, the Arbitrator must find that an agency personnel action was unjustified or unwarranted, that such personnel action directly resulted in the withdrawal or reduction of the aggrieved employee's pay, allowances, or differentials and that but for such action, the grievant would not have suffered such a withdrawal or reduction. For example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 21 FLRA No. 52 (1986). In this case the Arbitrator did not make the findings necessary for a proper award of backpay. The Arbitrator specifically concluded that it was impossible to determine that the grievant would have been promoted but for the improper selection procedures. Accordingly, the award of a retroactive promotion and backpay is deficient and must be set aside. /*/ With the award of backpay found deficient, and apart from other considerations, the Arbitrator's award of attorney fees is also deficient and must be set aside. U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374 (1985).

We also deny the Union's request for a remand. When an award of retroactive promotion and backpay is found deficient under the Back Pay Act, the award is set aside and not remanded for clarification or reevaluation. See National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Service Station, 21 FLRA No. 26 (1986), slip op. at 5. At the same time, however, the Authority has indicated in similar circumstances that the parties are not precluded from agreeing on an appropriate remedy (as to appropriate remedies, see, for example, Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452, 456 and n.6 (1981) (priority consideration under a new promotion or other placement action); Local R1-185, National Association of Government Employees and Adjutant General of the State of Connecticut, 25 FLRA No 36 (1987) (reconstruction or rerunning of the selection action)). Alternatively, the parties could agree to resubmit the issue of an appropriate remedy to the Arbitrator or the Union could refer such matter to arbitration. See Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 19 FLRA 535 (1985); U.S. Department of Transportation, Federal Railroad Administration and American Federation of Government Employees, Local 2814, AFL-CIO, 14 FLRA 240 (1984).

V. Decision

For these reasons, the award is modified to strike the award of retroactive promotion, backpay, and attorney fees.

Issued, Washington, D.C., May 20, 1987

/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) In view of this decision, it is not necessary to address the Agency's other exception to the award.