Defense Logistics Agency, Department of Defense, Battle Creek, Michigan and American Federation of Government Employees, Local 1626 (Authority decision, August 13, 1987)

Final FLRA decision. The Authority changes an arbitration remedy from promotion to priority consideration after finding that the employee should have been interviewed for a vacancy. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The Defense Logistics Agency in Battle Creek failed to interview an employee for a vacant position, violating its labor agreement. An arbitrator ordered her promoted to the next equivalent opening because she might have been selected had she received an interview. The Authority held that this finding did not establish she would have been selected but for the violation, which was needed before an arbitrator could require promotion over management's selection right. It kept the contract violation finding but changed the remedy to priority consideration for the next equivalent vacancy.

Decision snapshot

• Authority: Management's selection right under 5 U.S.C. § 7106(a)(2)(C); arbitration review under § 7122(a).
• Outcome: Award modified; priority consideration replaces directed promotion.
• Key point: A possibility of selection does not support an order requiring promotion.

Full text (FLRA public release)

[ v28 p578 ]
28:0578(71)AR

The decision of the Authority follows:

28 FLRA NO. 71

DEFENSE LOGISTICS AGENCY,
DEPARTMENT OF DEFENSE,
BATTLE CREEK, MICHIGAN

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1626

Union

Case No. 0-AR-1361

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Nathan Lipson 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.

II. Background and Arbitrator's Award

The parties submitted to arbitration the issue of whether the Activity violated the collective bargaining agreement by failing to interview the grievant for a specified position vacancy. The Arbitrator found that the Activity had violated the agreement. As a remedy, he ordered the grievant promoted to the next equivalent position that becomes available because he found that the grievant "might have been selected" if she had been interviewed.

III. Exception

The Agency contends that the award is contrary to law. Specifically, the Agency argues that the award violates management's right to select under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 4.

IV. Analysis and Conclusions

We conclude that the Arbitrator's award ordering that the grievant be promoted to the next available position equivalent to one the Activity filled improperly is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter

335. The Authority has consistently held that management's right under the
     Statute and the FPM to make the actual selections for promotion can only be abridged by an award of an arbitrator when the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. For example, U.S. Naval Ordnance Station, Louisville, Kentucky and International Association of Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA No. 36 (1986). In this case, we conclude that the Arbitrator failed to make the necessary finding. The Arbitrator's findings that the Activity violated the collective bargaining agreement by failing to interview the grievant and that if she had been interviewed, "she . . . might have been selected" do not constitute the necessary finding that but for the unwarranted action (failing to interview the grievant), the grievant would have been selected for promotion.

V. Decision

Accordingly, the award is deficient and is modified to provide an appropriate legal remedy for the violation of the collective bargaining agreement found by the Arbitrator by substituting the following for the award's second sentence: 1

Grievant Allison VanNocker is awarded priority consideration for the next available position equivalent to the JOA 85-65 vacancy that becomes open.

Issued, Washington, D.C., August 13, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 See American Federation of Government Employees, Local 12 and United States Department of Labor, 15 FLRA 543 (1984) and the case cited in the decision.