The questions before the Authority are whether the remedies are contrary to law because they: (1) do not satisfy the requirements of the Back Pay Act (the Act);^[1] and (2) violate management’s right to select under § 7106(a)(2)(C) of the Federal Service Labor‑Management Relations Statute (the Statute)^[2] by not being reasonably related to the contractual violations and the harm being remedied. The Arbitrator did not make explicit findings regarding a causal connection between the Agency’s unjustified or unwarranted personnel action and the harm suffered by the grievant, as required by the Act, and we are unable to determine whether the Arbitrator credited certain evidence cited by the Union. Consequently, we remand to the parties for resubmission to the Arbitrator for further findings regarding the basis for the award. And because we are remanding the award, it is premature to address whether the award violates management’s right to select.

 

At arbitration, the parties did not stipulate to an issue, and the Arbitrator did not frame one. However, the Arbitrator stated that the grievance alleged that the Agency violated Article 29 of the agreement, titled “Merit Promotion,” and specifically, Section 4G, which sets forth how interviews are to be conducted and used when making selections for positions.^[3] The pertinent wording of Section 4G is set forth below.

 

 

 

The Arbitrator found that, during the interview step, the Agency violated the selection procedures set forth in Article 29 of the agreement. According to the Arbitrator, the Agency violated Article 29, Section 4G(3)H because the interview panel consisted of only the selecting official and his supervisor, instead of three members, as Article 29, Section 4G(3)H requires. In addition, the Arbitrator found that the Agency violated Section 4G(3), which provides that interviews “will not be used to test the candidates” and “should not be given undue weight,” but “should be combined with the results of other evaluation factors.”^[4] Specifically, the Arbitrator found that the Agency violated Section 4G(3) by choosing the selectee “based almost[,] if not totally[,] on the interview scores,”^[5] and there was no evidence that the selecting official considered any “other” evaluation criteria, such as the scores from the resume step.^[6]

 

 

 

 

 

The Agency argues that the award is contrary to the Act.^[7] An arbitrator may award backpay under the Act only if he or she finds that an agency has committed an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of an employee’s pay, allowances, or differentials.^[8] The Agency did not file an essence exception challenging the Arbitrator’s finding of a contractual violation. And a contractual violation is an unjustified or unwarranted personnel action under the Act.^[9] Thus, this requirement of the Act is satisfied.

 

The Agency argues that the Arbitrator made no finding that its unjustified or unwarranted personnel action resulted in a reduction of the grievant’s pay, allowances, or differentials.^[10] Specifically, the Agency contends that the Arbitrator made no finding that, but for the Agency’s violation of the parties’ agreement, the grievant would have been selected for the position.^[11] 

 

The Union argues that the Arbitrator implicitly found that the grievant would have been selected because specific references to the resume and interview scores in the award indicate that the Arbitrator “reviewed the evaluation factors that were submitted by the [parties] into the record.”^[12] Moreover, the Union claims that “objective data” in the record – the score sheets containing the scores from the resume and interview steps^[13] – demonstrate that the grievant “would have been the highest-scoring candidate” based on a combination of the resume and interview scores.^[14] 

 

Where an arbitrator fails to make an explicit finding of the causal connection required under the Act, the Authority has stated that “the absence of such language will not be dispositive if the requisite finding of a causal connection is otherwise apparent.”^[15] However, the Authority has declined to find the required causal connection where, for example, an arbitrator’s findings did not include any commentary on why the grievant was best qualified for the position,^[16] or on what would have happened had the agency not violated the negotiated selection procedures.^[17] In this case, the Arbitrator made no findings as to how the grievant – or the rest of the applicants – would have scored if the interviews had been conducted in accordance with the parties’ agreement and the interview scores had been properly adjusted to reflect the weight agreed to by the parties.^[18] As such, we are unable to determine whether the Arbitrator evaluated the evidence cited by the Union in its opposition. And because the Arbitrator made no explicit finding that the grievant would have been selected, but for the Agency’s violations, we are unable to determine whether the award is consistent with the Act. 

 

When the Authority is unable to determine whether an award is contrary to law, the Authority remands the award for further findings by the arbitrator.^[19] Consistent with this principle and the discussion above, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for further findings regarding the basis of the backpay award.

 

The Agency asserts that the Arbitrator’s remedy directing a retroactive promotion of the grievant (the promotion remedy) violates management’s right to select^[20] under § 7106(a)(2)(C) of the Statute.^[21] According to the Agency, its failure to follow the interview procedures in the agreement is not “sufficient to negate management’s right to select the                 best[-]qualified candidate” from among the eight candidates.^[22] The Agency maintains that the promotion remedy “is not reasonably related to the severity of the error” because: (1) the number of interview-panel members is not related to the selection of the candidate, and (2) any improper weighting of the interview harmed all applicants equally, not just the grievant.^[23] The Agency argues that a proper remedy would have been for the Arbitrator to “either determine[] who was the best qualified of all the candidates, or remand[] back to the Agency to re-run the selection process in compliance with the terms of the parties’ agreement.”^[24] 

 

The Union does not dispute that the award affects a management right, but claims that the Arbitrator was enforcing the agreement.^[25] The Union concedes that “if the improper [interview] panel was the only violation  . . . found, a retroactive promotion would not be a remedy that is reasonably related to the violation.”^[26] According to the Union, the promotion remedy is “most related” to the “greater violation” of the agreement – the Agency’s alleged failure to combine the interview scores with the “other evaluation factors” – because the grievant was the highest-scoring candidate overall when the interview and resume scores were combined.^[27] The Union argues that the Arbitrator found that the only evaluation criteria used by the Agency were the interview scores, and that he “used his remedial authority” to craft an award that was “clearly related” to the Agency’s failure to combine the scores from each step of the selection process.^[28]

 

When a party alleges that an arbitrator’s award is contrary to a management right under § 7106(a) of the Statute,^[29] the Authority first assesses whether the award affects the exercise of the asserted right.^[30] If the Authority determines that the award affects the right, or it is undisputed that the award affects the right,^[31] then the Authority examines, as relevant here, whether the award provides a remedy for a contract provision negotiated under § 7106(b).^[32] The Authority places the burden on the party arguing that the award is contrary to a management right to allege not only that the award affects a right under § 7106(a), but also that the contract provision being enforced is not the type of contract provision that falls within § 7106(b) of the Statute.^[33] An award enforcing a contract provision will not be found deficient absent a claim that the provision was not negotiated under § 7106(b) of the Statute^[34] or a claim that the arbitrator applied a provision negotiated under § 7106(b) in a way that is not reasonably related to that provision and the harm being remedied.^[35] 

 

Here, there is no claim that the contract provisions enforced by the Arbitrator do not fall within § 7106(b) of the Statute. Rather, the Agency argues that the promotion remedy is not reasonably related to the Agency’s violations of Article 29, Section 4G. As discussed in Section III.A., above, in fashioning the remedies, the Arbitrator made no explicit finding that the grievant would have been selected but for the Agency’s contractual violations. We are remanding regarding the remedy issue under the Act so that the Arbitrator can address the issue of whether, but for the Agency’s contractual violations, the grievant would have been selected. If, on remand, the Arbitrator finds the necessary causal connection as required by the Act, then the promotion remedy would be reasonably related to the contractual provisions violated and the harm to be remedied because both involve selection.^[36] 

 

 

While the dissent cites SSA^[38] in support of its argument that the only appropriate remedy would be for the Arbitrator to direct the Agency to rerun the selection process,^[39] that decision does not support the dissent’s contention. In SSA, the Authority held, in part, that the remedy chosen by the arbitrator to rectify the agency’s contractual violation (failing to give the grievant priority consideration in accordance with a prior arbitration award), was not contrary to law insofar as it required the agency to remove the selectees and rerun the selection process.^[40] Contrary to the dissent’s assertion, the Authority did not hold in SSA that, as a matter of law, “where an agency fails to properly run a selection process, as required by the parties’ agreement,”^[41] the only available remedy is to direct the agency to rerun the selection. Thus, SSA does not support finding that, as a matter of law, the Arbitrator’s remedy is deficient.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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