FLRA DECISIONS

60 FLRA No. 86

PRIORITY CONSIDERATION VIOLATION ... REMEDIES

U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services and American Federation of Government Employees, Local 1923, 0-AR-3817, November 23, 2004, 60 FLRA No. 86.

Holdings

The arbitrator, after finding that the agency violated the agreement when it failed to select the grievant by means of priority consideration, ordered the agency to (1) place the grievant in the GS-7 career ladder position, (2) evaluate her after one year for the GS-9 level and promote her if she is qualified, and (3) grant back pay for the GS-9 position if the grievant is promoted after one year at the GS-7 level. FLRA (Member Pope dissenting in part), set aside that portion of the award ordering back pay contingent on the grievant's promotion to the GS-9 level after one year because it was inconsistent with the Back Pay Act.

Summary

The grievant, who was entitled to priority consideration, exercised that entitlement with respect to a GS-7 position with promotion potential to GS-12. But she was not given a priority consideration selection because the interviewing official, in her written justification for non-selection, said that the grievant's limited experience didn't demonstrate "potential to successfully perform the full range of duties this position requires." However, when the grievant subsequently applied for the same position under competitive procedures, the rating panel (which included the interviewing official) rated her as above average on all three elements of the KSAs.

The union grieved and claimed, among other things, that the agency had in effect evaluated the grievant for a GS-12 position, in violation of the priority consideration provisions of the agreement. When the matter was referred to arbitration, the arbitrator concluded, among other things, that the official was improperly interviewing the grievant for the position at the GS-12 level and assuming that in the time period between the GS-7 level and the GS-12 level the grievant could not learn anything.

Finding that the agency violated the agreement when it failed to select the grievant by use of priority consideration, the arbitrator ordered the agency to (1) place the grievant in the GS-7 position, "with all of the rights that would have been applicable had she been selected" initially, (2) evaluate her after one year for the GS-9 level position and promote her if she is qualified, and (3) grant back pay for the GS-9 position if the grievant is promoted after one year at the GS-7 position.

The Authority (Member Pope dissenting in part), rejected all but one of the agency's exceptions. In rejecting the agency's claim that the award excessively interfered with the agency's right to select, it noted, e.g., that FLRA has consistently held that "contractual provisions affording [priority] consideration constitute appropriate arrangements under ' 7106(b)(3)[.]"

However, it set aside the part of the award ordering back pay contingent on the grievant's promotion to the GS-9 level after one year.

In this case, the Arbitrator acknowledged that not everyone in a career ladder position will reach the top of the ladder . . . Given the above, the Arbitrator awarded back pay based on the possibility that the grievant may receive a promotion in the future, not on a finding that the Agency's actions actually caused the grievant to suffer a loss in pay, allowances or differentials. Accordingly, as the Arbitrator never made a finding, implicitly or explicitly, that, but for the Agency's failure to follow the agreement, the grievant suffered a loss of pay, allowances or differentials, the award does not satisfy the second requirement of the Back Pay Act.

In her partial dissent, Member Pope found that the award satisfied the "but for" causality requirement of the Back Pay Act.

[T]he majority's holding that the [back pay portion] of the award is deficient because it fails to establish a causal connection is wrong on the facts. The condition that the Arbitrator attached to the award of back pay -- that the grievant be found qualified at the GS-9 level -- establishes the necessary causal connection between the Agency's failure to select the grievant for the position and the grievant's loss of pay.

Table of Contents