Association of Civilian Technicians and Pennsylvania National Guard (Authority decision, December 31, 1987)

Final FLRA decision. The Authority modifies an arbitration award concerning a flight engineer promotion. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An arbitrator ordered the Pennsylvania National Guard to select an employee for a flight engineer position after finding a violation of the parties' agreement. The Authority held that the arbitrator had not found the employee would have been chosen but for the agency's procedural errors, a finding needed to override management's selection right. It removed the order to promote the employee. Instead, it required priority consideration for the next available flight engineer position for which the employee was qualified and had the required military compatibility.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and selection rights under § 7106(a)(2)(C).
• Outcome: Award modified: directed promotion struck, priority consideration ordered.
• Key point: A promotion remedy required a finding that the employee would have been selected without the agency's error.

Full text (FLRA public release)

[ v30 p779 ]

30:0779(90)AR

The decision of the Authority follows:

30 FLRA NO. 90
30 FLRA 776

31 DEC 1987

ASSOCIATION OF CIVILIAN
TECHNICIANS

Union

and

PENNSYLVANIA NATIONAL
GUARD

Agency

Case No. O-AR-1443

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator (Rev.) Edward J. Mullaly, S.J., 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. The Arbitrator found that the Agency violated the collective bargaining agreement when it failed to select the grievant for a position. The Union filed an opposition to the Agency's exception. For the reasons stated below, we find that the Arbitrator's award is deficient because it interferes with management's right to select and therefore is contrary to section 7106(a)(2)(C) of the Statute.

II. Background and Arbitrator's Award

The grievance in this case concerned the Agency's failure to promote the grievant to the position of flight engineer. On September 3, 1986, the Agency posted a Technician Vacancy Announcement for the position of flight engineer. The grievant applied for the job but was not selected. He was informed by letter from the selecting official that in order to improve his qualifications for future consideration he needed more training in the aviation field and as a flight engineer. The grievant also had been told that he needed to be in a compatible military unit in order to be selected, but the letter from the selecting official did not mention the noncompatibility issue as the reason for the nonselection.

A second job announcement was issued on December 17, 1986, for the same position. The grievant and one other applicant applied for the job. The other applicant withdrew from consideration, and the grievant again was not selected. The selecting official informed the grievant by letter of his nonselection and stated that the grievant's performance did not warrant selection of the grievant for the position. According to the Agency, no selection has been made for the position in the job announcements. The grievance proceeded to arbitration over the issue of whether it was arbitrable and whether the Agency violated the parties' collective bargaining agreement when it failed to promote the grievant.

The Arbitrator determined that the dispute was arbitrable under the parties' agreement and that the Agency erred in not selecting the grievant for the position. Specifically, the Arbitrator found that the Agency's right to select involves the implementation of the merit placement procedures in the parties' agreement. He found that the grievant was qualified for the position for which he applied and that the Agency erred in not selecting the grievant for the position. The Arbitrator sustained the grievance and directed the Agency to select the grievant for the position.

III. Exception

The Agency contends that the award interferes with management's right to select and therefore violates section 7106(a)(2)(C) of the Statute. The Agency argues that the Arbitrator failed to establish that it took an improper action that resulted in the grievant's nonselection. The Agency concedes that it made procedural errors in the nonselection action, but asserts that the errors did not relate to its substantive decision not to select the grievant. Therefore, the Agency contends that no direct causal connection exists between the procedural errors and the decision to not select the grievant.

The Union argues that the Arbitrator applied the "but for" rationale in determining that the Agency improperly denied the flight engineer position to the grievant. Therefore, the Union argues that the Agency's exception should be denied. In the alternative, the Union contends that if the exception is sustained, the award should not be set aside but should be modified to require the Agency to rerun the selection process and to grant the grievant priority consideration.

IV. Discussion

We agree with the Agency that the Arbitrator's award directing the grievant to be selected for the position for which he applied is contrary to section 7106(a)(2)(C) of the Statute. Management's right under the Statute to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. U.S. Naval Ordnance Station, Louisville, Kentucky and International Association of Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA 382 (1986). In order to require an agency to select a particular employee for a promotion, an arbitrator must reconstruct what the responsible selecting official would have done if the unwarranted agency actions had not occurred and must find on the basis of that reconstruction that the responsible selecting official would have selected the grievant but for the unwarranted actions. Id.

In this case, the Arbitrator did not find, based on a reconstruction of the promotion action, that the grievant would have been selected for the position of flight engineer. The Arbitrator found that the grievant should have been promoted because, among other things, he met the qualifications in the job announcement and was the only remaining applicant for the position. However, the Arbitrator failed to find that the grievant would have been selected if the selecting official had not made errors in the selection process. With respect to the fact that the grievant was the only qualified applicant, there has been no showing that the Agency's decision not to fill the position with the grievant violated any applicable requirements. Consequently, we find that the award is deficient because the Arbitrator did not make the necessary finding that the grievant would have been selected for the position of flight engineer.

The Arbitrator did find, and the Agency conceded, that procedural errors had been committed in the selection process. There is no evidence that these errors affected the Agency's decision not to select the grievant, however. The record also contains no evidence to indicate that the Agency intends to fill the position which was the subject of the grievance. In these circumstances, requiring the Agency to rerun the selection action in conformance with the agreement would be an ineffective remedy. Accordingly, we deny the Union's request that we modify the award to require the selection action to be rerun. Rather, in our view, it would effectuate the purposes of the Statute to require the Agency, should it decide to fill a flight engineer position in the future, to give the grievant priority consideration in the selection process.

V. Decision

The Arbitrator's award is modified to provide an appropriate legal remedy for the violation of the collective bargaining agreement found by the Arbitrator by (1) striking that part of the award directing that the grievant be given the position for which he applied and (2) providing instead that the grievant be awarded priority consideration for the next available flight engineer position for which he is qualified and for which he possesses the requisite military compatibility.

Issued, Washington, D.C., December 31, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY