U.S. Army, Aberdeen Proving Ground Command and International Association of Machinists and Aerospace Workers, Lodge 2424 (Authority decision, June 6, 1984)

Final FLRA decision. The Authority modified an arbitration award concerning two WG-7 selections under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator found that Aberdeen Proving Ground used improper procedures to fill two WG-7 positions and ordered the Army to vacate the selections and choose again from the original WG-6 drivers. The Authority agreed that the selection process needed to be rerun but found the remedy too restrictive. The award had removed the incumbents before corrective action without finding they could not properly have been selected, and it denied management the option to select from another appropriate source. The Authority replaced the remedy with an order to rerun the selections under applicable merit promotion rules and handle the incumbents under the governing corrective action rules.

Decision snapshot

• Authority: Management selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Arbitration remedy modified; selection action to be rerun.
• Key point: Corrective action could not automatically vacate incumbents or confine selection to the original WG-6 drivers.

Full text (FLRA public release)

[ v15 p12 ]

15:0012(3)AR

The decision of the Authority follows:

15 FLRA No. 3

U.S. ARMY, ABERDEEN
PROVING GROUND COMMAND,
ABERDEEN, MARYLAND
Activity

and

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, LODGE 2424
Union

Case No. O-AR-455

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Robert J. Ables 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.

The Arbitrator in this case determined that the Activity had improperly adopted the procedures by which it filled two positions at WG-7. Accordingly, the Arbitrator vacated the two selections for the positions and essentially directed the Activity to rerun the selection action and to select from the WG-6 drivers, including the incumbents, in the movements section at the time of the grievance.

In its exceptions the Agency primarily contends that the award is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335, appendix A, section A-4. The Authority agrees.

The Authority has repeatedly held that incumbent employees in these cases are entitled, pursuant to FPM chapter 335, appendix A, section A-4b, to be retained in the positions pending corrective action unless it is specifically determined that the incumbents could not originally have been properly selected. E.g., Defense Contract Administration Services Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94 (1983). Likewise, the Authority has expressly held that section 7106(a)(2)(C) provides for management's right to select from among a group of properly ranked and certified candidates for promotion or from any appropriate source. U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983). Therefore, in terms of this case, the award is deficient as contrary to FPM chapter 335, appendix A, section A-4b to the extent that it orders the positions vacated in advance of corrective action without finding that the incumbents could not properly have been originally selected. Similarly, by ordering that the Activity select from among the original WG-6 drivers, the award precludes a selection from any other appropriate source and consequently is deficient as contrary to section 7106(a)(2)(C). For these reasons, the award is modified to provide the following remedy in place of that ordered by the Arbitrator in paragraphs 1-3 of his decision: /1/

The Activity shall rerun the selection action for the WG-7 positions in this case. The rerunning of the selection action by the Activity and the action involving the incumbent employees must fully conform with controlling law and regulation and the parties' collective bargaining agreement. In particular, the rerunning of the selection action must be in accordance with applicable merit promotion procedures. In addition, the action involving the incumbent employees must be in accordance with the corrective action provisions of FPM chapter 335, appendix A, section A-4b.

Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

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