American Federation of Government Employees, Local 2955 and The Adjutant General of Iowa, The National Guard of Iowa (Authority decision, December 28, 1979)

Final FLRA decision. This order resolves review of an arbitration award under the prior executive order program. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

An arbitrator ordered the Iowa National Guard to promote an employee retroactively with back pay after the agency failed to give him special consideration for promotion. The agency appealed. The Authority relied on an Office of Personnel Management interpretation that special consideration did not guarantee promotion. The arbitrator had not found that the employee would have been promoted but for the agency's error. The Authority set aside the promotion and back pay award.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Federal Personnel Manual chapter 335.
• Outcome: Retroactive promotion and back pay award set aside.
• Key point: Special consideration for repromotion did not guarantee selection for a vacancy.

Full text (FLRA public release)

[ v02 p323 ]

02:0323(41)AR

The decision of the Authority follows:

2 FLRA No. 41

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2955

and

THE ADJUTANT GENERAL OF IOWA,
THE NATIONAL GUARD OF IOWA

FLRC No. 78A-138

DECISION ON APPEAL FROM ARBITRATION AWARD

BACKGROUND OF CASE

THIS APPEAL AROSE AS THE RESULT OF AN ARBITRATOR'S AWARD DIRECTING
THAT THE GRIEVANT BE PROMOTED RETROACTIVELY WITH BACKPAY.

BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, IT
APPEARS THAT THIS MATTER AROSE WHEN THE GRIEVANT, A REPROMOTION
ELIGIBLE, ALLEGED THAT THE ACTIVITY HAD VIOLATED THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT WHEN ON SEVERAL OCCASIONS OPPORTUNITIES FOR
PROMOTION AROSE BUT HE WAS NOT GIVEN SPECIAL CONSIDERATION FOR PROMOTION
TO THOSE POSITIONS AS REQUIRED BY THE AGREEMENT. HE FILED A GRIEVANCE,
AND IN THE ENSUING STEPS OF THE GRIEVANCE PROCEDURE THE ACTIVITY
ADMITTED THAT, IN AT LEAST ONE INSTANCE, ADMINISTRATIVE OVERSIGHT
RESULTED IN THE GRIEVANT'S NAME NOT BEING REFERRED FOR SPECIAL
CONSIDERATION. THE ACTIVITY ASSURED THE GRIEVANT THAT HE WOULD RECEIVE
SPECIAL CONSIDERATION IN THE FUTURE. HOWEVER, THE GRIEVANT PURSUED HIS
GRIEVANCE AND IT WAS ULTIMATELY SUBMITTED ARBITRATION.

THE ARBITRATOR'S AWARD

THE ARBITRATOR CONCLUDED THAT THE "GRIEVANT HAS . . . BEEN WRONGED,
EVEN IF ONLY BY OVERSIGHT." AS A REMEDY, THE ARBITRATOR FOUND THE
GRIEVANT ENTITLED TO IMMEDIATE PROMOTION, WITH BACKPAY, TO ANY VACANCY
FOR WHICH HE WAS QUALIFIED OR COULD BE TRAINED, AND WHICH HAD OCCURRED
SINCE THE DATE OF THE EXECUTION OF THE NEGOTIATED AGREEMENT.

AGENCY'S APPEAL

THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATION COUNCIL. THIS CASE WAS PENDING BEFORE THE
COUNCIL ON DECEMBER 31, 1978. IN ACCORDANCE WITH SECTION 2400.5 OF THE
TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY(44 FED.REG.
44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE(92 STAT. 1215), THE RULES OF PROCEDURE OF THE COUNCIL,
5 C.F.R. PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT
CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.

PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
AGENCY'S EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE
REGULATION, NAMELY THE FEDERAL PERSONNEL MANUAL. IN ADDITION, PURSUANT
TO SECTION 2411.47(F) OF THE AMENDED RULES, THE AUTHORITY GRANTED THE
AGENCY'S REQUEST FOR A STAY OF THE AWARD PENDING DETERMINATION OF THE
APPEAL.

OPINION

SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES THAT:

(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED

ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,

OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT

RELATIONS.

AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
FOR REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION WHICH ALLEGED THAT THE
AWARD GRANTING THE GRIEVANT RETROACTIVE PROMOTION WITH BACKPAY VIOLATED
APPROPRIATE REGULATION. SINCE THE CIVIL SERVICE COMMISSION WAS
RESPONSIBLE FOR PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED
HEREIN, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978(92 STAT. 1224) THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL
SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM
THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL
SERVICE COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
INTERPRETATION OF CIVIL SERVICE COMMISSION REGULATIONS AS THEY PERTAINED
TO THE ARBITRATOR'S AWARD IN THIS CASE. THE OFFICE OF PERSONNEL
MANAGEMENT REPLIED IN RELEVANT PART AS FOLLOWS:

THE GRIEVANT IN THIS CASE, A REPROMOTION ELIGIBLE, ALLEGED THAT THE
AGENCY VIOLATED AN

EXISTING LABOR-MANAGEMENT AGREEMENT WHEN HE WAS NOT GIVEN SPECIAL
CONSIDERATION IN THE FILLING

OF SEVERAL POSITIONS. DURING THE PROCESSING OF THE GRIEVANCE, THE
AGENCY ADMITTED TO AN

ADMINISTRATIVE ERROR AND, AS A REMEDY, NOTIFIED THE GRIEVANT THAT HE
WOULD RECEIVE SPECIAL

CONSIDERATION FOR FUTURE VACANCIES FOR WHICH HE QUALIFIED. HOWEVER,
THE GRIEVANCE CONTINUED

TO ARBITRATION. THE ARBITRATOR RULED THAT THE GRIEVANT HAD BEEN
"WRONGED" AND ORDERED THE

GRIEVANT IMMEDIATELY PROMOTED WITH BACK-PAY TO ANY VACANCY FOR WHICH
HE WAS QUALIFIED OR COULD

HAVE BEEN TRAINED, AND WHICH HAD OCCURRED SINCE THE DATE OF THE
EXECUTION OF THE NEGOTIATED

AGREEMENT.

TWO PROVISIONS OF FEDERAL PERSONNEL MANUAL CHAPTER 335 BEAR ON THE
AWARD. BOTH WERE IN

EFFECT AT THE TIME THE GRIEVANT FAILED TO RECEIVE PROPER
CONSIDERATION AND AT THE TIME OF THE

ARBITRATOR'S AWARD. THE FIRST PROVISION, REQUIREMENT 1 OF SUBCHAPTER
2, REQUIRED AGENCIES TO

GIVE NON-COMPETITIVE CONSIDERATION TO SPECIAL CONSIDERATION
CANDIDATES (LIKE THE GRIEVANT)

PRIOR TO FILLING VACANCIES UNDER COMPETITIVE PROCEDURES.

THE SECOND PROVISION, SECTION 4-3(C)(2) OF CHAPTER 335, DESCRIBED
WHAT IS MEANT BY "SPECIAL

CONSIDERATION." THAT SECTION READ AS FOLLOWS:

"(2) SPECIAL CONSIDERATION FOR REPROMOTION. AN EMPLOYEE DEMOTED
WITHOUT PERSONAL CAUSE IS

ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION IN THE AGENCY IN
WHICH HE WAS

DEMOTED. ALTHOUGH HE IS NOT GUARANTEED REPROMOTION, ORDINARILY HE
SHOULD BE REPROMOTED WHEN A

VACANCY OCCURS IN A POSITION AT HIS FORMER GRADE . . . FOR WHICH HE
HAS DEMONSTRATED THAT HE

IS WELL QUALIFIED, UNLESS THERE ARE PERSUASIVE REASONS FOR NOT DOING
SO. CONSIDERATION OF AN

EMPLOYEE ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION MUST
PRECEDE EFFORTS TO FILL THE

VACANCY BY OTHER MEANS . . . IF A SELECTING OFFICIAL CONSIDERS AN
EMPLOYEE ENTITLED TO

SPECIAL CONSIDERATION FOR REPROMOTION UNDER THIS PARAGRAPH BUT
DECIDES NOT TO SELECT HIM FOR

PROMOTION AND THEN THE EMPLOYEE IS CERTIFIED TO THE OFFICIAL AS ONE
OF THE BEST QUALIFIED

UNDER COMPETITIVE PROMOTION PROCEDURES FOR THE SAME POSITION, THE
OFFICIAL MUST STATE HIS

REASONS FOR THE RECORD IF HE DOES NOT THEN SELECT THE EMPLOYEE."

IT IS CLEAR THAT THE ABOVE CITED PROVISIONS OF THE FPM STRONGLY
ENCOURAGED THE REPROMOTION

OF "SPECIAL CONSIDERATION" CANDIDATES. THEY DID NOT, HOWEVER,
MANDATE THAT SUCH REPROMOTION

OCCUR. /1/ THEREFORE, THIS CHAPTER MAY NOT BE THE BASIS FOR AN
ARBITRATOR'S AWARD THAT A

PARTICULAR PERSON BE PROMOTED. THE LANGUAGE IN THE NEGOTIATED
AGREEMENT REQUIRES THE GIVING

OF SPECIAL CONSIDERATION FOR REPROMOTION "IN ACCORDANCE WITH THE
FPM." HOWEVER, THE FPM, AS

QUOTED ABOVE, IS NOT A BASIS FOR REQUIRING THE PROMOTION OF A
PARTICULAR INDIVIDUAL IN

CIRCUMSTANCES SUCH AS THESE.

ALTHOUGH THE ARBITRATOR DID NOT DISCUSS THE AGREEMENT PROVISION
QUOTED IN HIS DECISION,

OTHER THAN TO DETERMINE THAT IT APPLIED TO THE GRIEVANCE, IT APPEARS
HE ASSUMED THAT IT

REQUIRED PROMOTION OF THE GRIEVANT UNLESS THERE WAS A "JUST CAUSE"
REASON FOR NOT SELECTING

HIM. PERTINENT HERE IS FPM CHAPTER 335, SUBCHAPTER 2(REQUIREMENT 6)
WHICH SETS FORTH THE

MANAGEMENT RIGHT TO SELECT OR NON-SELECT. THIS RIGHT(DERIVED FROM
RULE 7.1 OF THE CIVIL

SERVICE RULES) MEANS THAT MANAGEMENT MUST RETAIN THE FREEDOM TO
DECIDE, WITHOUT INTERFERENCE,

WHICH CANDIDATE IT WILL SELECT FROM AMONG THOSE REFERRED FOR A GIVEN
POSITION UNDER

ESTABLISHED PROCEDURES, OR IN FACT, TO MAKE NO SELECTION AT ALL. THE
PARTIES THEREFORE COULD

NOT HAVE APPROPRIATELY AGREED TO SUBJECT MANAGEMENT'S REASONS FOR
SELECTING ONE CANDIDATE OVER

ANOTHER TO REVIEW BY A THIRD PARTY BECAUSE IT WOULD CONTRAVENE
MANAGEMENT'S RIGHT TO MAKE

FINAL SELECTIONS FOR PROMOTIONS. HENCE, THE ARBITRATOR'S APPARENT
INTERPRETATION OF THE

PARTIES' INTENTIONS IS MOOT SINCE THE EMBODIMENT OF SUCH AN INTENTION
IN THE NEGOTIATED

AGREEMENT VIOLATES CIVIL SERVICE RULES AND INSTRUCTIONS.

THE ARBITRATOR AWARDED THE GRIEVANT RETROACTIVE PROMOTION WITH BACK
PAY. THE ONLY

CIRCUMSTANCE UNDER WHICH AN AGENCY MAY BE REQUIRED TO PROMOTE A
PARTICULAR PERSON AND TO

ACCORD THAT PERSON BACK PAY IS WHEN A FINDING HAS BEEN MADE BY AN
ARBITRATOR OR OTHER

COMPETENT AUTHORITY THAT SUCH PERSON WOULD HAVE BEEN PROMOTED AT A
PARTICULAR POINT IN TIME

BUT FOR AN ADMINISTRATIVE ERROR, A VIOLATION OF A COMMISSION OR
AGENCY REGULATION OR OF A

PROVISION OF A NEGOTIATED AGREEMENT. THIS PRINCIPLE HAS BEEN SET
FORTH IN A SERIES OF

COMPTROLLER GENERAL DECISIONS DEALING WITH RETROACTIVE PROMOTION, ALL
NUMBERED B-180010, AND

ISSUED ON AND SUBSEQUENT TO OCTOBER 31, 1974. THE ARBITRATOR IN THIS
CASE DID NOT ADDRESS THE

QUESTION OF WHETHER THE GRIEVANT WOULD HAVE BEEN PROMOTED BUT FOR THE
VIOLATION. IF HE

ASSUMED THIS TO BE THE CASE, HIS ASSUMPTION WAS BASED ON AN APPARENT
INTERPRETATION OF THESE

DOCUMENTS THAT IS VIOLATIVE OF CIVIL SERVICE COMMISSION REQUIREMENTS
AND HENCE, UNENFORCEABLE.

THEREFORE, BASED ON THE CONSIDERATIONS DISCUSSED ABOVE, WE FIND THAT
IMPLEMENTATION OF THE

ARBITRATOR'S AWARD IN THIS CASE WOULD VIOLATE COMMISSION INSTRUCTIONS
AND CONTROLLING

COMPTROLLER GENERAL DECISIONS.

BASED UPON THE FOREGOING INTERPRETATION BY THE OFFICE OF PERSONNEL
MANAGEMENT, WE CONCLUDE THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT
ENTITLED TO IMMEDIATE PROMOTION WITH BACKPAY, UNDER THE CIRCUMSTANCES OF
THIS CASE, VIOLATES APPROPRIATE REGULATIONS AND THEREFORE MUST BE SET
ASIDE.

CONCLUSION

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
RULES OF PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD FINDING THE
GRIEVANT ENTITLED TO IMMEDIATE PROMOTION WITH BACKPAY. /2/

ISSUED, WASHINGTON, D.C., DECEMBER 28, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ IN KIRK ARMY HOSPITAL, FLRC NO. 72A-18, THE COUNCIL HAD OCCASION
TO CITE FPM SUBCHAPTER 4-3(C)(2), AND COMMENTED THAT "WITH RESPECT TO
THE REPROMOTION RIGHTS OF SUCH EMPLOYEES, THE FPM PLAINLY STATES THAT,
EVEN THOUGH THEY ARE ENTITLED TO 'SPECIAL CONSIDERATION', THEY ARE 'NOT
GUARANTEED PROMOTION.' IN OTHER WORDS, A SELECTION DECISION REMAINS TO
BE MADE BY THE SELECTING OFFICIAL." SEE ALSO COMMISSION OPINIONS IN
WARREN AIR FORCE BASE, FLRC NO. 75A-127, AND TOOELE ARMY DEPOT, FLRC NO.
75A-104.

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978(92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.