Redstone Arsenal Army activities and AFGE Local 1858 (Authority decision, December 4, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on exceptions to an arbitration award. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to an Authority order involving an arbitration award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An employee at Redstone Arsenal challenged a promotion process, arguing that the selected candidate gained an unfair advantage through extended details. An arbitrator found a violation of a rule against apparent favoritism and ordered the grievant promoted to the next suitable GS-5 opening. The Authority set aside the order because the arbitrator had not found that the grievant would have been selected but for the violation. Without that link, directing a promotion interfered with management's selection right.

Decision snapshot

• Authority: Management's selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Arbitration award requiring promotion set aside.
• Key point: A directed promotion requires a finding that the employee would have been selected absent the improper action.

Full text (FLRA public release)

[ v20 p792 ]

20:0792(94)AR

The decision of the Authority follows:

20 FLRA No. 94

U.S. ARMY MISSILE COMMAND,
U.S. ARMY COMMUNICATIONS COMMAND AGENCY--
REDSTONE, U.S. ARMY COMMISSARY,
REDSTONE ARSENAL, ALABAMA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO
Union

Case No. 0-AR-998

DECISION

This matter is before the Authority on an exception to the award of Arbitrator George Munchus III filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

A grievance was filed on behalf of one of a number of candidates for a GS-5 vacancy in a program assistant position claiming that the selected employee was given an advantage over other competing employees as the result of extended details. Although the grievant was granted by the Activity priority consideration for the next appropriate vacancy, the grievance was submitted to arbitration when the immediate promotion of grievant was not granted by the Activity. Thy Arbitrator would that the selection "appear(ed) to conflict with merit principles" and therefore violated agency regulation providing that practices must be avoided with would indicate preselection or promotion based on favoritism. Although the Arbitrator refused to decide whether the selection erroneous and refused to vacate the position, he ordered that the grievant shall be immediately promoted to the next GS-5 vacancy in a program assistant position for which she was qualified.

In its exception, the Agency principally contends that the award is contrary to management's right to make selections for appointments as set forth in section 7106(a)(2)(C) of the Statute and FPM chapter 335. The Authority agrees.

The Authority consistently has held in this respect that management's right to make the actual selections for promotion can only be abridged if the Arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. E.g., Office of the Secretary, U.S. Department of Transportation and American Federation of Government Employees, Local 3313, AFL-CIO, 17 FLRA No. 14 (1985); American Federation of Government Employees, Local 12 and United States Department of Labor, 15 FLRA No. 113 (1984). In terms of this case, the Authority concludes that the Arbitrator failed to make the necessary finding. Although the Arbitrator found that the Activity had violated regulation by failing to avoid practices indicating preselection or favoritism, he did not find the selection for the position to be erroneous and he did not find that the grievant, one of several candidates considered for the position, would have been selected but for that violation. Consequently, the award is deficient as contrary to management's right to make selections for appointment as set forth in section 7106(a)(2)(C) of the Statute and Requirement 4 of FPM chapter 335, subchapter 1-4, and accordingly is set aside.

Issued, Washington, D.C., December 4, 1985. (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY