U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Social Security Administration v. American Federation of Government Employees, Local 1923, 0-AR-3346, May 24, 2001, 57 FLRA No. 44.

FLRA turned down agency exceptions to an award in which the arbitrator found that the agency violated an EEO settlement agreement by not according the grievant priority consideration for a position the agency claimed wasn't in the bargaining unit. In rejecting the agency's claim that he didn't stick to the letter of the stipulated issue, FLRA said that "the Authority accords an arbitrator's interpretation of a stipulation of issues the same substantial deference that it accords an arbitrator's interpretation and application of a collective bargaining agreement."

The grievant—exercising priority consideration that had been received in settlement of a prior EEO complaint—applied, but was not selected for, a Lead Inventory Supply Specialist position. The union grieved and the matter was referred to arbitration, where the parties agreed that the issue to be decided was as follows:

Whether the Union has proved by a preponderance of evidence that SSA discriminated against [the grievant] on the basis of age, sex, and/or race and retaliated against him in violation of the [g]rievant's rights under Article 18 and 24 of the [parties' agreement] or other law or regulation when it declined to select him, via priority consideration for a Lead Inventory Supply Specialist position. If so, what is the appropriate remedy.

The arbitrator, based on the parties' arguments, found that the real issue before him was whether the "[g]rievant receive[d] the priority consideration he was promised in his EEO settlement." He rejected the agency's claim that the standards in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) should apply, finding instead that "the only burden of proof [the g]rievant must meet is that he was not given bona fide consideration for his priority consideration[.]" He also refused to pass on the agency's claim that the position the grievant applied for wasn't in the bargaining unit. In his view the unit status of the position wasn't necessary to the outcome of the grievance.

The arbitrator went on to find that the grievant was not accorded the bona fide consideration to which he was entitled. He noted, in this connection, that the grievant was evaluated in comparison to other applicants in violation of, among other things, a contract provision requiring the selecting official to make a determination regarding employees with priority consideration "prior to the assessment panel's evaluation of any other candidates for the vacancy." Nor was there any record testimony that the grievant couldn't be successful in the position. He also found the agency's claim that the grievant would require extensive training was without merit. In reaching his decision, the arbitrator held that "denial of an EEO settlement must be viewed on its face as an act of discrimination."

FLRA rejected the agency's claim that he exceeded his authority when he didn't stick to the letter of the stipulated issue.

Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue. . . . In determining whether an arbitrator has exceeded his or her authority, the Authority accords an arbitrator's interpretation of a stipulation of issues the same substantial deference that it accords an arbitrator's interpretation and application of a collective bargaining agreement.

FLRA went further and noted that although the stipulated issue didn't mention bona fide consideration, "that issue arose in the context of resolving whether the grievant was improperly not selected and is consistent with the arguments made before the Arbitrator."

Although the agency also claimed the arbitrator exceeded his authority when he disregarded the unit status of the position for which the grievant wasn't given priority consideration, FLRA "construed" such a claim as a contention that the award didn't draw its "essence" from the agreement, and rejected the contention. "The Agency does not dispute that under the parties' agreement, it is the unit status of the grievant at the time of the filing—as opposed to the unit status of the position at issue--that determines whether a grievance is properly resolved under the [NGP]." FLRA also rejected the agency's "construedv essence exception to the arbitrator's application/interpretation of the agency's MOPP (Management Officials' Promotion Plan).

Finally, FLRA rejected the agency's claim that the arbitrator violated law when it didn't apply the McDonnell Douglas burden of proof standards.

Insofar as the Arbitrator was resolving a discrimination claim, [he] found that the "denial of an EEO settlement must be viewed on its face as an act of discrimination." . . . Contrary to the argument of the Agency, such a finding need not be analyzed using the McDonnell Douglas framework. The McDonnell Douglas standards are used to establish claims of disparate treatment that do not involve direct evidence of discriminatory motive, and are not necessarily applicable to other discrimination theories.

It went on to note that EEOC doesn't apply McDonnell Douglas standards where a complainant alleges a breach of a settlement agreement. In sum, the arbitrator wasn't obligated to apply a particular burden of proof in finding discrimination.

Although the stipulated issue asked the arbitrator to determine an appropriate remedy if he found that there was a violation of the agreement, law, or regulation, there is no indication in FLRA's summary of the award or of the agency's exceptions, what that remedy, if any, was.