Defense Contract Administration Services, Cedar Rapids and AFGE Local 2752 (Authority decision, December 3, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An arbitrator found that a Cedar Rapids defense contract office had improperly amended experience criteria when filling a contract administrator position. He ordered the selected employee removed and a grievant chosen from the original best-qualified group. The Authority held that those remedies conflicted with federal personnel rules protecting the incumbent until corrective review and preserving management’s selection options. It modified the award to require a new selection process under the original announcement, consistent with law, regulations, and the agreement.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Arbitral remedy modified; selection action to be rerun.
• Key point: Corrective action could not automatically displace the incumbent or restrict selection to one applicant pool.

Full text (FLRA public release)

[ v10 p547 ]

10:0547(94)AR

The decision of the Authority follows:

10 FLRA No. 94

DEFENSE CONTRACT ADMINISTRATION
SERVICES MANAGEMENT AREA (DCASMA)
CEDAR RAPIDS, IOWA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2752, AFL-CIO
Union

Case No. O-AR-335

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Thomas P. Gilroy 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 Union filed an opposition.

The dispute in this matter concerned the filling of a GS-5 contract administrator position. The original job opportunity announcement was issued on November 27, 1980, but was subsequently amended to change the criteria for evaluating the experience of applicants meeting minimum qualification requirements. After the selection was announced, a grievance was filed and submitted to arbitration protesting the use of the amended evaluation criteria. The Arbitrator determined that the selection action did not conform to the Federal Personnel Manual (FPM) and the parties' collective bargaining agreement. He specifically found that the Activity improperly amended the evaluation criteria for experience and that the awarding of the maximum experience points to the successful applicant was not clearly supported in the records presented. Accordingly, the Arbitrator in his award ordered as follows:

2. The position in question is to be vacated. The (Activity)
   is to make a selection from the Grievants in the original best qualified group who were not selected for this position.

As one of its exceptions, the Agency contends that the award is contrary to governing government-wide regulations. Specifically, the Agency maintains that both the Arbitrator's order that the position be vacated in advance of corrective action and the Arbitrator's order that the Activity make a selection from the grievants in the original best qualified group are contrary to FPM chapter 335. The Authority agrees.

As the Authority indicated in The Adjutant General, State of Oklahoma, Air National Guard and American Federation of Government Employees, Will Rogers Air National Guard Local 3953, 8 FLRA No. 23 (1982), the incumbent employee in these cases is entitled pursuant to FPM chapter 335, appendix A, section A-4b to be retained in the position unless it is specifically determined that the selection action cannot be corrected to conform essentially to all applicable requirements as of the date the action was taken. In terms of this case, the Arbitrator did not specifically determine that a reconstruction of the selection action showed that the selected employee could not have been selected had the proper procedures been followed at the time the action was taken. Therefore, the award to the extent it orders the position vacated in advance of corrective action is deficient as contrary to FPM chapter 335, appendix A, section A-4. See id. at 3.

Similarly, FPM chapter 335, subchapter 1-4, Requirement 4 provides for management's right to select or not select from among a group of best qualified candidates or from other appropriate sources. Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA No. 57 (1981), at 3-4. In terms of this case, the Arbitrator by ordering a selection from the original best qualified group precludes a selection directly from other appropriate sources. Therefore, the award to the extent it orders the Activity to make a selection from the grievants in the original best qualified group is likewise deficient as contrary to FPM chapter 335, subchapter 1-4, Requirement 4. Cf. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No. 97 (1982), at 3-4 (proposal which would require the agency to select from a certificate of best qualified applicants was found to be inconsistent with section 7106(a)(2)(C)(ii) of the Statute which also provides for management's right to select from other appropriate sources as enumerated in FPM chapter 335, subchapter 1-4, Requirement 4). Consequently, the award in these respects is deficient as contrary to FPM chapter 335 and cannot be implemented.

Accordingly, and in view of the finding that the Activity improperly amended the evaluation criteria for experience, the award is modified to provide the following remedy: /1/

2. The Activity shall rerun the selection action for the
   contract administrator position in this case under the job opportunity announcement issued on November 27, 1980. The rerunning of the selection action by the Activity and the action involving the incumbent employee must fully conform with controlling law and regulation and with the parties' collective bargaining agreement.

See also National Bureau of Standards, Boulder Laboratories and American Federation of Government Employees, Local 2186, 9 FLRA No. 53 (1982), at 3; The Adjutant General, State of Oklahoma, 8 FLRA No. 23, at 3-4. Issued, Washington, D.C., December 3, 1982 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ In view of this decision, it is not necessary that the Authority resolve the Agency's other exception to the award.