[ v61 p618 ]
61 FLRA No. 119
NATIONAL TREASURY
EMPLOYEES UNION
(Union)
and
UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)
0-AR-4012
_____
DECISION
July 13, 2006
_____
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to a merits award of Arbitrator Carlton J. Snow and a remedy award of Arbitrator M. David Vaughn filed by the Agency and the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions, and the Union filed an opposition to the Agency's exceptions.
Arbitrator Snow found that two qualification requirements applied by the Agency in filling Revenue Agent positions violated law and the parties' agreement, and Arbitrator Vaughn issued several remedies.
For the following reasons, we set aside the portion of the merits award that found a violation of 5 U.S.C. § 3308 and the parties' agreement, we set aside the remedy award, and we deny the Union's exceptions. [n1]
II. Background and Arbitrators' Awards
As relevant here, the Office of Personnel Management (OPM) approved, and set forth in the OPM Qualifications Handbook, an Agency-proposed qualification standard for the Agency's Revenue Agent position. That standard includes a requirement of completion of thirty semester hours in accounting (the thirty-hour requirement). When the Agency denied an employee's application for a Revenue Agent position because she did not meet the thirty-hour requirement, she filed a grievance.
In a separate grievance, the Union challenged a vacancy announcement that required candidates for a Revenue Agent position to demonstrate knowledge in five specific areas of accounting (the five-knowledges requirement). The Agency denied both grievances, and the grievances were consolidated and submitted to arbitration.
In the merits award, Arbitrator Snow framed the issues as follows:
(1) Is the grievance arbitrable?
(2) If so, is the [thirty-hour] requirement . . . in accordance with applicable law, rule, regulation, and the parties' labor contract?
(3) Is the [five-knowledges] requirement . . . in accordance with applicable law, rule, and regulation as well as the parties' collective bargaining agreement? If there has been a contractual violation, what is an appropriate remedy?
Merits Award at 3.
Arbitrator Snow found that the thirty-hour and five-knowledges requirements are educational requirements within the meaning of 5 U.S.C. § 3308 (§ 3308). [n2] In this connection, Arbitrator Snow found that "[t]he fact . . . that the [five-knowledges] requirement can be fulfilled through experience does not remove it from the scope of the law." Id. at 36. Instead, Arbitrator Snow determined, the five-knowledges requirement "is merely an educational requirement that can be satisfied through education or experience." Id. at 36-37. Arbitrator Snow found that, because incumbent Revenue Agents were [ v61 p619 ] able to successfully perform their duties without satisfying either the five-knowledges or the thirty-hour requirement, those requirements violate § 3308.
Arbitrator Snow also addressed whether the requirements violate Article 13, Section 3(B) of the parties' agreement, which provides that "selective placement factors will only be used in determining eligibility when they are essential to successful performance in the position to be filled." Id. at 42 (emphasis from award removed). Arbitrator Snow determined that, because Revenue Agents who failed to meet the requirements were able to successfully perform their duties, the requirements are not "essential to successful performance" within the meaning of Article 13, Section 3(B). Id. at 43. Accordingly, Arbitrator Snow concluded that the requirements violate Article 13, Section 3(B).
In addition, Arbitrator Snow rejected the Union's claim that the requirements violate 5 C.F.R. § 300.103 (§ 300.103), finding that the Agency "rationally could have found" the requirements related to performance in the Revenue Agent position. [n3] Id. at 39. In this regard, Arbitrator Snow found that the Agency conducted three job analyses of the Revenue Agent position and noted the Agency's expert witness's testimony that the job analyses provided "cumulative and converging evidence of the content validity" of the five-knowledges requirement. Id. Arbitrator Snow concluded that "[t]he totality of the record supports a conclusion that the Agency met requirements of" § 300.103. Id. at 40.
Arbitrator Snow also addressed the Union's claims that the thirty-hour and five-knowledges requirements did not satisfy Uniform Guidelines for Employment Selection Procedures, because the requirements result in an adverse impact on minority applicants and the Agency had failed to comply with the "documentation" requirements of those regulations that apply where there is an adverse impact. Id. at 16. Arbitrator Snow determined that 29 C.F.R. § 1607.4 (§ 1607.4) requires the Agency to measure the impact of the "total selection process" on protected groups and, if an adverse impact is found, then to evaluate the individual components of the selection process. [n4] Id. at 40. Arbitrator Snow found that "[t]he totality of the record . . . failed to establish any adverse impact[.]" Id. In this regard, he found that neither the Agency's nor the Union's expert witnesses measured the adverse impact of the total selection process. Instead, Arbitrator Snow determined, the Agency's expert studied only the impact of the five-knowledges requirement in isolation, and the Union's expert studied the impact of the thirty-hour and five-knowledges requirements "combined." Id. at 41. Arbitrator Snow found that "any adverse impact of individual components of the process is not dispositive[,]" and thus, the "documentation requirements of 29 C.F.R. [§] 1607 are not activated[.]" Id.
Arbitrator Snow did not order a remedy for the violations of § 3308 and the parties' agreement. Instead, he stated that the parties had ninety days to negotiate a remedy.
The Agency filed interlocutory exceptions with the Authority, challenging Arbitrator Snow's jurisdiction in connection with the thirty-hour requirement. See NTEU, 60 FLRA 782 (2005). The Authority granted interlocutory review, finding that Arbitrator Snow lacked jurisdiction to resolve the validity of the thirty-hour requirement [ v61 p620 ] because that requirement was an OPM regulation. See id. at 784. The Authority set aside the portion of the award concerning the thirty-hour requirement, but noted that it was "undisputed that the five-knowledges requirement is not an OPM requirement, and that the Agency's exceptions [did] not challenge the Arbitrator's jurisdiction to resolve the grievance challenging that requirement." Id. at 783 at n.4.
Subsequently, when the parties were unable to reach agreement on remedies for the violations found in connection with the five-knowledges requirement, they submitted the remedy issue to Arbitrator Vaughn for resolution. [n5] Arbitrator Vaughn issued an award directing various remedies. [n6] Thereafter, the Agency filed exceptions challenging the merits award's finding that the five-knowledges requirement was inconsistent with § 3308 and the parties' agreement, and challenging the remedy award. The Union filed an opposition to the Agency's exceptions and filed exceptions challenging the aspect of the merits award finding the five-knowledges requirement consistent with § 300.103 and § 1607. The Agency filed an opposition to the Union's exceptions.
III. Positions of the Parties
A. Agency Exceptions
The Agency argues that Arbitrator Snow's finding that § 3308 applies to the five-knowledges requirement is contrary to law. In particular, the Agency asserts that the requirement may be satisfied through experience as well as education and, thus, is not a "minimum educational requirement" under § 3308.
The Agency also argues that Arbitrator Snow's finding of a contract violation fails to draw its essence from the parties' agreement, is "contrary to fact," and is inconsistent with management's right to select under § 7106(a)(2)(C) of the Statute. Agency Exceptions at 19. According to the Agency, Arbitrator Snow's determination that the Agency may not use the five-knowledges requirement as a selective factor excessively interferes with its right to select because the Agency has determined, through properly conducted job analyses, that the five knowledges are essential to the performance of the Revenue Agent position.
Finally, the Agency contends that Arbitrator Vaughn's remedies fail to draw their essence from the parties' agreements.
B. Union Opposition
The Union argues that the merits award is not contrary to § 3308 because undisputed record evidence indicates that the five-knowledges requirement "functions as an education requirement, regardless of whether it could also, theoretically, be satisfied through experience." Union Opp'n at 3. In this connection, the Union contends that, in practice, the Agency applies the five-knowledges requirement as an educational requirement that cannot be satisfied through experience.
The Union also argues that the merits award is not inconsistent with management's right to select. Specifically, the Union argues that the award expands, rather than limits, the Agency's selection options and, thus, it does not affect management's right to select. For support, the Union cites United States Department of the Treasury, IRS, Washington, D.C., 61 FLRA 226, 229 (2005) (IRS) (Member Armendariz dissenting).
Finally, the Union contends that Arbitrator Vaughn's remedies are not deficient.
C. Union Exceptions
The Union argues that Arbitrator Snow erred in finding that the five-knowledges requirement complies with § 300.103. According to the Union, its expert witness testified regarding numerous examples of "fundamental flaws in the validity and job-relatedness" of the five-knowledges requirement. Union Exceptions at 27. The Union also asserts that uncontradicted evidence showed that factors unrelated to job performance -- specifically, bias against internal applicants as well as college degree requirements that the Union's expert testified have little relation to the job -- motivated the Agency's decision to adopt the five-knowledges requirement.
Further, the Union contends that Arbitrator Snow erred in finding that § 1607.4 requires a showing of adverse impact of the total selection process. Instead, the Union claims, the adverse impact of an individual component of the selection process can establish adverse impact. Id. at 32 (citing Connecticut v. Teal, 457 U.S. 440 (1982)). Further, the Union argues that § 1607.4's discussion of the total selection process "operate[s] only as a guide to the Federal enforcement agencies' administrative and prosecutorial discretion." Id. at 33. The Union claims that it demonstrated the adverse impact of the five-knowledges requirement and [ v61 p621 ] that, consequently, the Agency was required to comply with the documentation requirements of § 1607, which it failed to do.
D. Agency Opposition
The Agency asserts that the record supports Arbitrator Snow's conclusion that the Agency established a rational relationship between the five-knowledges requirement and the Revenue Agent position. According to the Agency, the Union is disagreeing with Arbitrator Snow's interpretation of the evidence and the weight that he gave to evidence presented by the parties' respective expert witnesses.
In addition, the Agency argues that although Arbitrator Snow's reliance on the absence of an analysis of the total selection process "appears to be misplaced[,]" the record supports his conclusion that no adverse impact was established. Agency Opp'n at 25. In particular, the Agency asserts that its expert witness testified that the five-knowledges requirement did not result in an adverse impact, while the Union's expert witness assessed only the impact of the five-knowledges and thirty-hour requirements combined.
IV. Analysis and Conclusions
The parties allege that the merits award is contrary to law. The Authority reviews questions of law raised by an arbitrator's award and exceptions to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, the Authority defers to the arbitrator's underlying factual findings. See id.
1. Arbitrator Snow's finding that the five-knowledges requirement is a minimum educational requirement is inconsistent with § 3308.
Section 3308 provides, in pertinent part, that OPM and other examining agencies "may not prescribe a minimum educational requirement . . . except when [OPM] decides that the duties of a . . . position cannot be performed by an individual who does not have a prescribed minimum education . . . ." The plain wording of § 3308 indicates that it applies to requirements that individuals have a "minimum education[;]" it provides no indication that it applies to requirements that may be satisfied through means other than education, such as experience. In addition, OPM has stated that "[a] minimum educational requirement does not exist[]" under § 3308 where "substitution of other training and experience is permitted for the prescribed education." Notice of Approval of a Demonstration Project Final Plan, 48 Fed. Reg. 32,490, 32,492 (July 15, 1983).
Neither party disputes that § 3308 applies only to requirements that may be satisfied solely through education, not to requirements that may be satisfied through experience. As there is no dispute in this regard, and as this construction comports with the wording of § 3308, we adopt this construction.
In the award, Arbitrator Snow expressly found that the five-knowledges requirement "can be satisfied through education or experience." Merits Award at 37. He nevertheless found that the five-knowledges requirement violates § 3308 because it is a minimum educational requirement that is unnecessary to successful performance as a Revenue Agent.
In applying a de novo standard of review, the Authority defers to Arbitrator Snow's factual finding that the five-knowledges requirement can be satisfied through education or experience. See NFFE, Local 1437, 53 FLRA at 1710. We note, in this connection, that the Union has not filed an exception challenging Arbitrator Snow's factual finding. Instead, in its opposition, the Union argues that, as a practical matter, the Agency has applied the five-knowledges requirement in a manner that considers only education, not experience. Nevertheless, the Union concedes that, subsequent to the filing of the Union's grievance, a vacancy announcement challenged in that grievance was amended to indicate that the five-knowledges requirement may be satisfied by either education or experience. See Union Opp'n at 3 ("[o]nly after [the Union's] first grievance . . . did [the Agency] amend the vacancy announcement in an attempt to re-frame the requirement as purporting to seek a `demonstrat[ion] of knowledge[]' that might somehow possibly be satisfied through experience[]"). For these reasons, the Union's argument in its opposition does not provide a basis for finding that the five-knowledges requirement is a minimum educational requirement under § 3308.
In view of Arbitrator Snow's finding that the five-knowledges requirement can be satisfied through either education or experience, we find that he erred in concluding that the five-knowledges requirement is a minimum educational requirement under § 3308. Thus, he erred in finding the five-knowledges requirement inconsistent with § 3308.
Although we have found that Arbitrator Snow erred in finding a § 3308 violation, the Union argues, and it is undisputed, that Arbitrator Snow's finding of a [ v61 p622 ] contract violation provides a separate and independent basis for the remedy award. See Union Opp'n at 2 n.1 ("Standing alone, either of the Snow Award's findings that [the Agency] violated: 1) 5 U.S.C. 3308's restrictions . . . and 2) the contract's restrictions . . . provide full support for" the remedy award). See also Agency Exceptions at 7 & Agency Opp'n at 7 ("Arbitrator Snow held that the Agency violated th[e] contractual provision, as well as 5 U.S.C. § 3308[]"). Accordingly, it is necessary to address the Agency's claim that the finding of a contract violation is inconsistent with management's right to make selections.
2. Arbitrator Snow's finding of a contract violation violates management's right to make selections under § 7106(a)(2)(C) of the Statute.
The Agency argues that Arbitrator Snow's finding of a contract violation is contrary to management's right to make selections under § 7106(a)(2)(C) of the Statute. In resolving whether an arbitrator's award violates management's rights under § 7106, the Authority first determines whether the award affects management's rights. United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).
Under prong I of BEP, where the affected management right is set forth in § 7106(a)(2), the Authority examines whether the award provides a remedy for a violation of either a provision negotiated under § 7106(b), or an applicable law within the meaning of § 7106(a)(2). See, e.g., United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 839, 841-42 (2005). If the award satisfies prong I of BEP, then under prong II, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. BEP, 53 FLRA at 154.
It is well-established that management's right to make selections under § 7106(a)(2)(C) of the Statute includes the right to determine the qualifications, skills, and abilities needed to do the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. See, e.g., United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Newport News, Va., 56 FLRA 339, 343 (2000) (Chairman Wasserman dissenting in part on other grounds), decision after remand, 57 FLRA 36 (2001) (Chairman Cabaniss dissenting in part); Ass'n of Civilian Technicians, N.Y. State Council, 45 FLRA 17, 20 (1992); AFGE, Local 1923, 44 FLRA 1405, 1452 (1992); AFGE, AFL-CIO, Local 1940, 16 FLRA 816, 823 (1984); AFGE, AFL-CIO, Local 15, 15 FLRA 954, 954-55 (1984); NFFE, Local 1497, 11 FLRA 565, 568 (1983). In this regard, the Authority has found that management's right to make selections includes the right to determine the selective factors that apply to a position. See, e.g., AFGE, AFL-CIO, Local 2354, 30 FLRA 1130, 1142-43 (1988); NFFE, Local 1497, 11 FLRA at 568.
Arbitrator Snow found that the parties' agreement precludes the Agency from using the five-knowledges requirement as a minimum qualification requirement. It is undisputed that the five-knowledges requirement is a selective placement factor. See Merits Award at 42. Thus, the merits award affects management's right to determine the minimum qualifications necessary for a Revenue Agent position. Accordingly, the above-cited Authority precedent supports a conclusion that the merits award affects management's right to select under § 7106(a)(2)(C) of the Statute.
The Union argues that Authority precedent demonstrates that the merits award does not affect management's right to make selections because the merits award expands, rather than limits, the Agency's selection options. However, the Authority has applied this principle only in cases where management's right to determine minimum qualifications was not affected. See, e.g., IRS, 61 FLRA at 229 (provision requiring that, after completion of rating and ranking process, the four most-highly-ranked candidates be submitted to the selecting official for consideration); AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 178-79 (1998) (proposal requiring that management announce, and permit field office employees to apply for, certain vacancies). Thus, this principle, and the Authority precedent cited by the Union, does not apply here.
For the foregoing reasons, we find that the merits award affects management's right to make selections under § 7106(a)(2)(C) of the Statute. As the Union does not argue that Arbitrator Snow was enforcing a provision negotiated under § 7106(b) of the Statute or an applicable law, the Union provides no basis for finding that prong I of BEP is satisfied here. Accordingly, without applying prong II of BEP, we conclude, without addressing the Agency's remaining exceptions regarding this aspect of the award, that Arbitrator Snow's finding of a contract violation is contrary to management's right to make selections. [ v61 p623 ]
As we have set aside Arbitrator Snow's findings of violations of § 3308 and the parties' agreements, it is necessary to address the Union's claims that Arbitrator Snow erred by failing to find additional violations of § 300.103 and § 1607.4.
3. Arbitrator Snow did not err in finding that the five-knowledges requirement is consistent with § 300.103.
Section 300.103(a) requires, in pertinent part, that employment practices applied by Federal agencies "shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates." Section 300.103(b)(1) pertinently requires that "[t]here shall be a rational relationship between performance in the position to be filled . . . and the employment practice used[,]" and that "[t]he demonstration of rational relationship shall include a showing that the employment practice was professionally developed."
Arbitrator Snow found that three job analyses were conducted in developing the five-knowledges requirement. He credited the Agency expert's witness testimony that the analyses met professional standards and provided "cumulative and converging evidence of the content validity" of the five-knowledges requirement. Merits Award at 39. The Union asserts that its own expert witness testified that there were certain flaws in the job analyses. To the extent that the Union is challenging Arbitrator's Snow's decision to credit the Agency's expert over the Union's expert, the Authority has held that challenges to an arbitrator's evaluation of evidence and testimony presented, including the credibility of witnesses and the weight to be given their testimony, provide no basis for finding an award deficient. See SSA, Balt., Md., 57 FLRA 538, 542 (2001). Thus, the Union's challenge provides no basis for finding the award deficient.
Further, in determining whether an employment practice bears a rational relationship to the job performance, it is unnecessary to determine whether a different practice would have been preferable. Curtin v. OPM, 846 F.2d 1373, 1376-78 (Fed. Cir. 1988). Thus, to the extent that the Union is asserting that a different measurement device would have been preferable to the five-knowledges requirement, that assertion does not demonstrate that Arbitrator Snow erred in finding a rational relationship under § 300.103(b)(1).
The Union also claims that record evidence indicates that the Agency's decision to implement the five-knowledges requirement was motivated by factors other than job performance, including a bias against internal candidates. For support, the Union cites record evidence indicating that management was attempting to hire external candidates rather than internal candidates. See Union Exceptions, Attachment 6 at 47-58 & Attachment 7 at 2. Arbitrator Snow did not address this evidence and did not make any findings that management was, or was not, attempting to avoid hiring internal candidates. Nevertheless, even assuming that management was attempting to select non-internal candidates, that does not demonstrate that the five-knowledges requirement is not rationally related to the job duties of the Revenue Agent position. Accordingly, the Union's claim is misplaced.
Additionally, the Union asserts that the Agency relied on college degree requirements that the Union's expert testified have little relation to the Revenue Agent position. For the same reasons discussed above, the Arbitrator's finding to credit the Agency's expert over the Union's expert does not provide a basis for finding the award deficient. See SSA, Balt., Md., 57 FLRA at 542.
For the foregoing reasons, we conclude that the Union has not demonstrated that Arbitrator Snow erred in finding that the five-knowledges requirement is not inconsistent with § 300.103, and we deny the exception.
4. Arbitrator Snow did not err in failing to find that the Agency had violated the Uniform Guidelines on Employee Selection Procedures.
The Uniform Guidelines on Employee Selection Procedures require that federal agencies "validate[]" any employment selection procedure that has an adverse impact on any race, sex, or ethnic group. 29 C.F.R. § 1607.3A. The regulations provide that if an agency's records demonstrate "that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact." 29 C.F.R. § 1607.4C. However, if the records demonstrate "that the total selection process does not have an adverse impact, the Federal enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual circumstances, will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process[.]" Id.
Applying these regulations, Arbitrator Snow concluded that it was "a requirement of the Uniform Guidelines" that parties demonstrate adverse impact in the [ v61 p624 ] "total selection process" before the individual components of the selection process had to be validated. Award at 40. However, and as noted by both parties, the validation process required by the regulations applies to individual portions of a selection process. See Agency Opp'n at 24 (citing 29 C.F.R. §1607.3A); Union Exceptions at 32. [n7] The regulations make clear the requirement to assess individual components of a selection process; however, where an agency has evidence reflecting that the total selection process does not have an adverse impact, the regulations permit an agency to not evaluate the individual components of that total selection process for adverse impact. 29 C.F.R. § 1607.4C. As the Agency had no evidence reflecting that the overall selection process had no adverse impact, the Agency was required to evaluate the individual components of that selection process. Thus, the Arbitrator erred when he concluded that the Agency had no obligation to evaluate the possible adverse impact of the individual (five-knowledges) selection procedure at issue here.
Nevertheless, an arbitrator's failure to apply the correct legal analysis does not render the award deficient where the Authority determines that "the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings." United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Office of Marine and Aviation Operations, Marine Operations Center, Va., 57 FLRA 430, 433 (2001); AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 910 n.6 (1998). Here, as the Agency argues, the Agency did evaluate the adverse impact of the five-knowledges requirement and its expert concluded that this individual component of the selection process did not result in an adverse impact to minority applicants. Agency Opp'n. at 25. Under 29 C.F.R. §1607.3A, this finding excuses the Agency from the documentation requirements that the Union asserts were not met here.
While the Union provided expert testimony that there was an adverse impact, the Arbitrator's award and the record demonstrate that the Union's expert studied the impact of the thirty-hour and five-knowledges requirements "combined[,]" rather than assessing the impact of the five-knowledges requirement by itself. Merits Award at 41; see Union Exceptions, Attachment 6 at 205. As the Authority has previously held that it lacks jurisdiction over the Union's claims relating to the thirty-four hours requirement, the Union's evidence concerning the combined effect of the two requirements cannot establish that the Agency had additional documentation requirements with respect to the five-knowledges requirement alone. Further, the Union's claim is only that the Agency has failed to follow the documentation requirements of the regulations -- not that the five-knowledges requirement discriminated against the grievants.
For the foregoing reasons, we conclude that the Union has not demonstrated that Arbitrator Snow erred in finding that the Agency did not violate the documentation requirements of the Uniform Guidelines on Employee Selection Procedures in adopting the five-knowledges requirement. Accordingly, we deny the exception.
V. Decision
The merits and remedy awards are set aside, [n8] and the Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 119 - Authority's Decision
As discussed further below, the parties' exceptions concerning the merits award challenge only the portion of that award addressing the requirement that applicants for Revenue Agent positions demonstrate knowledge in five specific areas of accounting; the exceptions do not challenge the portion of the merits award addressing the requirement that applicants have completed thirty semester hours in accounting.
Footnote # 2 for 61 FLRA No. 119 - Authority's Decision
Section § 3308 provides, in pertinent part: "The [OPM] or other examining agency may not prescribe a minimum educational requirement for an examination for the competitive service except when [OPM] decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education[] . . . ."
Footnote # 3 for 61 FLRA No. 119 - Authority's Decision
Section 300.103 provides, in pertinent part:
(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and
(3) The factors that are important in evaluating candidates. . . .
(b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled . . . and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. . . .
Footnote # 4 for 61 FLRA No. 119 - Authority's Decision
Section 1607.4 provides, in pertinent part:
A. . . . Each user should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group . . ., in order to determine compliance with these guidelines. . . .
B. . . . The records called for by this section are to be maintained by sex, and [several enumerated] races and ethnic groups. . . . The user should adopt safeguards to insure that the records required by this paragraph are used for appropriate purposes such as determining adverse impact[] . . .
C. . . . If the information called for by sections 4A and B above shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact. If this information shows that the total selection process does not have an adverse impact, the Federal enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual circumstances, will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process[.]
Footnote # 5 for 61 FLRA No. 119 - Authority's Decision
The remedy issue was submitted to Arbitrator Vaughn because Arbitrator Snow had died.
Footnote # 6 for 61 FLRA No. 119 - Authority's Decision
As discussed further below, it is unnecessary to discuss Arbitrator Vaughn's remedies or to resolve the Agency's challenges to those remedies. Accordingly, we do not set the remedies out in detail here.
Footnote # 7 for 61 FLRA No. 119 - Authority's Decision
Contrary to the Union's argument, the Supreme Court's decision in Connecticut v. Teal, 457 U.S. 440 (1982), holding that a non-discriminatory "bottom line" does not insulate an employer from a claim that a particular employment practice does has an adverse impact, provides no guidance concerning the Agency's obligations under the Uniform Guidelines on Employee Selection Procedures. There is no claim in this case that the five knowledges requirement violates the EEO statutes.
Footnote # 8 for 61 FLRA No. 119 - Authority's Decision
As we set aside Arbitrator Snow's findings of violations of § 3308 and the parties' agreement, there is no basis for a remedy award. Thus, we set aside the remedy award without addressing the Agency's challenges to it.