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49 FLRA No. 104

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 32

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

DENVER DISTRICT

DENVER, COLORADO

(Agency)

0-AR-2546

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DECISION

May 25, 1994

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jay C. Fogelberg 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance disputing the Agency's failure to select two seasonal employees for promotion to permanent positions. The Arbitrator directed the Agency to promote the grievants retroactively and provide them backpay. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union grieved the Agency's failure to select seasonal employees from a best qualified list (BQL) of applicants for nine permanent vacancies, open to both permanent and seasonal employees. The grievance was not resolved and, as relevant here, the dispute over the nonselection of the two seasonal employees ranked first and fourth on the BQL was submitted to arbitration. In relevant part, the Arbitrator framed the issue as follows:

[D]id the Employer violate applicable provisions of the Master Agreement, the Code, and/or Federal regulations when it did not select "seasonal" employees from the [best qualified] list?

If so, what shall the appropriate remedy be?

Award at 2.

The Arbitrator found that the Agency selected only permanent employees from the BQL based on its understanding that an Agency "budgetary directive" precluded it from selecting seasonal employees for permanent vacancies. Id. at 23. The Arbitrator determined that this Agency action violated Article 4, Section 2(F) and (K) of the parties' collective bargaining agreement.⁽¹⁾ He found that "by deliberately excluding the [g]rievants from the promotion, the Agency effectively discriminated against them on the basis o[f] a non-merit factor when making [its] selections." Id. at 17. The Arbitrator noted, in this regard, that applicable regulations prohibited the Agency from using non-merit factors in this way.⁽²⁾ According to the Arbitrator, the Agency gave the permanent employee applicants "an advantage, '. . . not authorized by law, rule or regulation . . .' for the purpose of improving their prospects for the promotion, over the seasonal people." Id. at 19. The Arbitrator concluded that the Agency's action "constitute[d] a personnel practice that is prohibited under the established authorities." Id.

The Arbitrator stated that the grievants "would most likely have received the promotions, if the Agency had not interpreted the budgetary directive as a restriction against all seasonal employees who expressed interest in the vacanc[ies]." Id. at 23. In this connection, the Arbitrator found that the grievants were already performing work similar to that required in the positions to be filled and that they were rated "significantly higher than most of the others" on the BQL. Id. Furthermore, according to testimony of a number of witnesses credited by the Arbitrator, the selecting official had indicated that she "would have liked to have selected" the grievants, but was prevented from doing so by the budgetary directive. Id. The Arbitrator concluded that there was a "direct connection . . . between the impropriety of the Agency's decision and the failure of these two employees to be promoted." Id. at 24. Accordingly, he sustained the grievance and ordered retroactive promotions and backpay.

III. Positions of the Parties

A. Exceptions

The Agency argues that the award is contrary to 5 U.S.C. § 2302, which is quoted in Article 4, Section 2(F) and (K) of the parties' agreement. According to the Agency, the Authority and the Merit Systems Protection Board have "repeatedly rejected" the contention that violations of merit system principles constitute prohibited personnel practices under 5 U.S.C. § 2302. Exceptions at 7. The Agency maintains that the Arbitrator improperly interpreted Article 4, Section 2(F) and (K) "as providing that any violation of general merit system principles constitutes a prohibited personnel practice." Id.

The Agency also argues that the award is contrary to 5 U.S.C. § 2302(b)(6), which is quoted in Article 4, Section 2(F) of the agreement. The Agency contends that section 2302(b)(6) "has been interpreted as being directed at purposeful discrimination to help or hinder particular individuals in obtaining employment without regard to their merit." Id. at 10. According to the Agency, the award conflicts with law because the Arbitrator did not find that "the Agency's actions in not selecting seasonals were directed towards or against any individuals." Id. at 11.

Finally, the Agency asserts that the award conflicts with its right under section 7106(a)(2)(C) of the Statute to make selections for appointments. According to the Agency, "nothing in the law shall affect the authority of an agency to make selections from among properly ranked and certified candidates for promotion." Id. at 12. Moreover, the Agency contends that the Arbitrator improperly discounted the selecting official's testimony that she would not have selected the fourth-ranked grievant on the BQL even in the absence of the budgetary restrictions.

B. Opposition

The Union asserts that the award is consistent with law and claims that the Agency's exceptions constitute mere disagreement with the Arbitrator's findings of fact, reasoning, conclusions, and evaluation of the evidence and testimony.

IV. Analysis and Conclusions

The Authority has held that merit system principles are not self-executing and that, to establish a prohibited personnel practice under 5 U.S.C. § 2302(b), a party must show that: (1) the disputed personnel action violated law, rule, or regulation; and (2) the law, rule, or regulation implements or directly concerns merit system principles. See, for example, National Association of Government Employees, Local R4-78 and U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia, 46 FLRA 631, 636 (1992). In this case, the Arbitrator determined that: (1) the Agency violated applicable regulations, 5 C.F.R. §§ 300.102 and 300.103; and (2) the regulations implemented merit system principles. The record before us provides no basis for rejecting either finding. Accordingly, we have no basis on which to find the award deficient insofar as it holds that the Agency committed a prohibited personnel practice.

Next, we reject as unsupported the Agency's argument that the award conflicts with law because the Arbitrator did not find that the Agency's failure to select seasonal employees was "directed towards or against any individuals." Exceptions at 11. The matter of the Agency's failure to select two seasonal employees was submitted to arbitration. Although the issue framed by the Arbitrator was whether the Agency acted improperly "when it did not select 'seasonal' employees from the [BQL,]" the grievance clearly encompassed the effect of the Agency's action on the two grievants. Award at 2. In particular, the Arbitrator determined that, "by deliberately excluding the [g]rievants from the promotion, the Agency effectively discriminated against them on the basis o[f] a non-merit factor when making their selections." Id. at 17. Furthermore, the remedy fashioned by the Arbitrator concerned only the two grievants, not seasonal employees generally. Thus, the award concerns the Agency's actions with regard to two individual employees.

Finally, the Agency has not demonstrated that the award interferes with its right to make selections for appointments under section 7106(a)(2)(C) of the Statute. As relevant here, an arbitrator may direct an agency to promote a grievant when the arbitrator finds a direct connection between improper agency action and the agency's failure to select the grievant for promotion. See, for example, Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 443 (1992) (FDIC). In this case, the Arbitrator found a "direct connection between the impropriety of the Agency's decision and the failure of the[] two employees to be promoted." Award at 24. Among other things, the Arbitrator noted statements by the selecting official that she would have selected the grievants but for their seasonal appointments. He also found that the grievants were already performing work similar to that of the positions to be filled and that their ratings were significantly higher than most of the competitors on the BQL. Consistent with these findings, we have no basis to conclude that the Arbitrator's direction to retroactively promote the grievants is deficient. See FDIC, 45 FLRA at 443-44.

In the latter regard, the Agency's argument that the Arbitrator improperly discounted the selecting official's testimony that she would not have selected the grievant ranked fourth on the BQL provides no basis for finding the award deficient insofar as it concerns that grievant. In particular, the Arbitrator found that the selecting official's testimony regarding that grievant was not "as credible as a number of other witnesses, each of whom offered consistent testimony that ran counter" to that of the selecting official. Award at 24. In our view, the Agency's argument constitutes mere disagreement with the Arbitrator's finding of fact, evaluation of evidence, and the credibility and weight given to the witnesses' testimony and, as such, provides no basis for finding the award deficient. See, for example, American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 48 FLRA 1021, 1027 (1993); U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 475 (1991).

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 4, Section 2(F) provides, in pertinent part that the Agency shall not:

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.

Award at 5-6.

The Arbitrator did not set out the text of Article 4, Section 2(K) in the award. However, the Union states that the Article 4, Section 2(K) "is identical to" 5 U.S.C. § 2302(b)(11). Opposition at 9, n.6. 5 U.S.C. § 2302(b)(11) provides, as relevant here, that any employee who has the authority to take any personnel action shall not:

take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.

2. The Arbitrator cited 5 C.F.R. § 300.102, which provides, in pertinent part:

This subpart is directed to implementation of the policy that competitive employment practices:

(a) Be practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of candidates for the jobs to be filled;

(b) Result in selection from among the best qualified candidates;

(c) Be developed and used without discrimination . . . ; and

(d) Insure to the candidate opportunity for appeal or administrative review, as appropriate.

The Arbitrator also cited 5 C.F.R. § 300.103(b), which provides that "[t]here shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used."

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