Army and Air Force Exchange Service, Fort Knox Exchange, Fort Knox, Kentucky (Activity) and American Federation of Government Employees, Local 2302, AFL-CIO (Union) (Authority decision, March 24, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. 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 one.

Plain-English summary

A Fort Knox Exchange employee grieved a promotion decision. The arbitrator found that the agency had not considered qualifications, performance, or potential and ordered the most senior applicant promoted with backpay. The Authority held that the award took away management’s statutory right to make the substantive selection for the position. It set aside the award.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C), 5 U.S.C. § 7122(a).
• Outcome: The retroactive promotion and backpay award was set aside.
• Key point: An arbitrator could not select an applicant solely by seniority in place of management.

Full text (FLRA public release)

[ v08 p256 ]

08:0256(56)AR

The decision of the Authority follows:

8 FLRA No. 56

ARMY AND AIR FORCE
EXCHANGE SERVICE, FORT
KNOX EXCHANGE, FORT KNOX,
KENTUCKY
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2302, AFL-CIO
Union

Case No. O-AR-154

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR W. THOMAS MULHALL FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE UNION FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THE ISSUE IN THIS CASE INVOLVES THE
QUESTION OF WHETHER THE GRIEVANT WAS GIVEN "REAL CONSIDERATION" FOR A
POSITION AT THE ACTIVITY FOR WHICH SHE APPLIED AND WAS NOT SELECTED.
THE ARBITRATOR NOTED THAT UNDER THE COLLECTIVE BARGAINING AGREEMENT AND
AGENCY REGULATIONS, CANDIDATES FOR PROMOTION WOULD BE CONSIDERED ON THE
BASIS OF QUALIFICATIONS, PERFORMANCE, POTENTIAL, AND LENGTH OF SERVICE.
HOWEVER, HE FOUND NO EVIDENCE IN THE RECORD THAT QUALIFICATIONS,
PERFORMANCE OR POTENTIAL WERE CONSIDERED BY THE ACTIVITY IN MAKING THE
SELECTION AT ISSUE IN THIS CASE. HE THEN DETERMINED THAT WITH NO
CONSIDERATION BEING GIVEN TO THESE CRITERIA AND WITH LENGTH OF SERVICE
THE ONLY REMAINING OBJECTIVE CRITERION, THE CANDIDATE WITH THE GREATEST
LENGTH OF SERVICE WAS ENTITLED TO THE POSITION. BECAUSE THE GRIEVANT
WAS THE MOST SENIOR OF THE CANDIDATES WHO APPLIED FOR THE POSITION, THE
ARBITRATOR ORDERED THAT SHE BE RETROACTIVELY PROMOTED TO THE POSITION
WITH BACKPAY.

AS ONE OF ITS EXCEPTIONS, THE AGENCY CONTENDS THAT THE AWARD IS
CONTRARY TO SECTION 7106(A)(2)(C) OF THE STATUTE. THE AUTHORITY AGREES.
THE AUTHORITY HAS HELD THAT NO ARBITRATION AWARD MAY DENY AN AGENCY THE
AUTHORITY TO EXERCISE ITS RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL AVIATION
ADMINISTRATION, 5 FLRA NO. 101 (1981). WITH RESPECT TO FILLING
POSITIONS, SECTION 7106(A)(2)(C) ENSURES TO MANAGEMENT THE RIGHT TO MAKE
THE ACTUAL SUBSTANTIVE SELECTION OR APPOINTMENT. BECAUSE THE
ARBITRATOR'S AWARD IN THIS CASE OVERTURNS THE ACTIVITY'S SELECTION FOR
THE POSITION AND ORDERS THE RETROACTIVE PROMOTION OF THE GRIEVANT TO THE
POSITION SOLELY ON THE BASIS OF SENIORITY, THE AWARD CLEARLY DENIES
MANAGEMENT ITS RIGHT TO MAKE THE ACTUAL SELECTION DECISION. THUS, THE
AWARD IS CONTRARY TO SECTION 7106(A)(2)(C) AND CONSEQUENTLY MUST BE SET
ASIDE.

ISSUED, WASHINGTON, D.C., MARCH 24, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY