Office of the Secretary, U.S. Department of Transportation and AFGE Local 3313 (Authority decision, February 28, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A downgraded Transportation Department employee was denied a grade 14 position despite eligibility for priority placement. An arbitrator ordered his appointment with backpay and benefits. The Authority found that the arbitrator had not established that the employee would have been selected but for the priority-placement error, as required before compelling an appointment. It modified the award to require priority consideration for comparable positions instead.

Decision snapshot

• Authority: Management selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Appointment and backpay remedy replaced with priority consideration.
• Key point: Failure to give priority consideration alone did not prove that the employee would have been selected.

Full text (FLRA public release)

[ v17 p54 ]

17:0054(14)AR

The decision of the Authority follows:

17 FLRA No. 14

OFFICE OF THE SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3313, AFL-CIO
Union

Case No. O-AR-608

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Seymour Strongin 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 dispute in this matter concerns the Activity's failure to select the grievant for a grade 14 position for which another employee was selected. The grievant, as a downgraded employee receiving benefits under 5 U.S.C. 5361-5366 (Subchapter VI, Grade and Pay Retention), was entitled to "priority placement" to the grade 14 position as a position at the grade he held prior to his downgrading. See generally FPM Letter 536-1 (Grade and Pay Retention-- Administration of Agency Programs for Training and Placement for Downgraded Employees Including the Development of Classification and Placement Plans). A grievance was filed and submitted to arbitration claiming that as a priority-placement employee, the grievant should have been appointed to the grade 14 position. Although the Arbitrator noted that the employee selected for the position "may well have been superior to the grievant as a candidate for th(e) position," the Arbitrator was of the view that as a priority-placement employee, the grievant was "legally entitled" to have been appointed to the position. Thus, the Arbitrator found that if the grievant had been extended the priority to which he was entitled, he would have been selected. Accordingly, the Arbitrator ordered the grievant appointed to the grade 14 position with backpay and benefits retroactive to the appointment date of the selected employee.

In one of its exceptions, the Agency contends that the award is contrary to management's right to make selections for appointments as set forth in section 7106(a)(2)(C) of the Statute and FPM chapter 335. The Authority agrees.

The Authority has held in this respect that management's right to make the actual selection for appointment can only be abridged if the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected. E.g., American Federation of Government Employees, Local 12 and United States Department of Labor, 15 FLRA No. 113 (1984). Moreover, the Authority has indicated that the failure to accord an employee the type of consideration required by the priority-placement program in this case cannot constitute the requisite finding of a direct connection between improper agency action and the failure of the employee to be selected for appointment to a position. See United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees Union, Local 916, AFL-CIO, 14 FLRA 642 (1984); Action and Action Employees Union, AFSCME, Local 2027, 11 FLRA 514 (1983). Thus, the Authority concludes that the Arbitrator's finding that the grievant was not extended the priority consideration to which he was entitled does not constitute the requisite finding that but for that unwarranted action, the grievant would have been selected for appointment to the grade 14 position. Consequently, the award is deficient as contrary to management's right to make selections for appointment as set forth in section 7106(a)(2)(C) of the Statute and Requirement 4 of FPM chapter 335, subchapter 1-4 and must be modified to provide an appropriate remedy. See Department of Labor, 15 FLRA No. 113 at 2. Accordingly, the award is modified to provide as follows: /1/

The grievant shall be granted priority consideration for positions of grade, tenure and tour of duty equal to the position from which he was downgraded.

Issued, Washington, D.C., February 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ In view of this decision, it is not necessary to address the Agency's other exceptions to the award.