U.S. Department of Commerce, National Bureau of Standards, Washington, DC (Activity) and American Federation of Government Employees, Local 2186, Boulder, Colorado (Union) 

 



[ v03 p615 ]
03:0615(98)AR
The decision of the Authority follows:


 3 FLRA No. 98
 
 U.S. DEPARTMENT OF COMMERCE,
 NATIONAL BUREAU OF STANDARDS,
 WASHINGTON, D.C.
 Activity
 
 and
 
 AFGE LOCAL 2186, BOULDER,
 COLORADO
 Union
 
                                            Case No. 0-AR-6
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR FRED L. ROCKWELL FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THE ACTIVITY POSTED A
 VACANCY ANNOUNCEMENT FOR A POSITION AT THE WG-6 LEVEL.  THE FIVE
 APPLICANTS FOR THE POSITION INCLUDED THREE MERIT PROMOTION CANDIDATES
 (ONE OF WHOM WAS THE GRIEVANT), A REASSIGNMENT CANDIDATE, AND AN
 APPLICANT FROM OUTSIDE THE AGENCY WHO WAS ELIGIBLE FOR REINSTATEMENT.
 THESE LATTER TWO CANDIDATES WERE ELIGIBLE FOR THE POSITION
 NONCOMPETITIVELY.  THE REINSTATEMENT ELIGIBLE CANDIDATE WAS SELECTED FOR
 THE POSITION AND A GRIEVANCE WAS FILED WHICH CLAIMED THAT THE SELECTION
 VIOLATED THE PARTIES' NEGOTIATED AGREEMENT.
 
    THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH THE
 ARBITRATOR STATING THE ISSUES BEFORE HIM AS FOLLOWS:
 
    1.  DID THE NATIONAL BUREAU OF STANDARDS VIOLATE THE NEGOTIATED
 AGREEMENT IN NON SELECTING
 
    THE GRIEVANT FOR PROMOTION TO THE POSITION OF TOOL AND PARTS
 ATTENDANT?
 
    2.  IF VIOLATION OCCURRED, WHAT REMEDY IS APPROPRIATE?
 
    AS TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE ACTIVITY'S
 SELECTION WAS DEFECTIVE BECAUSE IT DID NOT CONFORM TO THE NEGOTIATED
 AGREEMENT.  HE FOUND IN THIS REGARD THAT THE ACTIVITY HAD FAILED TO
 IDENTIFY ANY EFFORT TO UTILIZE TO THE MAXIMUM THE SKILLS AND TALENTS OF
 ITS EMPLOYEES, IN THIS CASE THE GRIEVANT, AS REQUIRED BY THE AGREEMENT.
 THE ARBITRATOR HAD CITED ARTICLE XIV, SECTION 1 OF THE PARTIES'
 NEGOTIATED AGREEMENT AS FOLLOWS:
 
    IT IS AGREED THAT MANAGEMENT WILL MAKE EVERY REASONABLE EFFORT TO
 UTILIZE TO THE MAXIMUM
 
    THE SKILLS AND TALENTS OF ITS EMPLOYEES IN ORDER TO ACHIEVE THE
 RESULTING BENEFITS OF HIGHER
 
    MORALE AND REDUCED TURNOVER.  PRIMARY CONSIDERATION, THEREFORE, WILL
 BE GIVEN TO FILLING
 
    VACANT POSITIONS THROUGH THE PROMOTION OF PRESENT EMPLOYEES.  THE
 UNION AGREES THAT,
 
    CONSISTENT WITH THE CONCEPT OF THE MERIT SYSTEM, THE AGENCY HAS AN
 OBLIGATION TO SELECT FROM
 
    AMONG THE BEST QUALIFIED INDIVIDUALS AVAILABLE.  LIKEWISE, THE
 ARBITRATOR FOUND THAT NO EFFORT HAD BEEN MADE TO PROVIDE THE GRIEVANT
 WITH PRIMARY CONSIDERATION AS REQUIRED BY THE AGREEMENT.  THEREFORE, THE
 ARBITRATOR HELD THAT THE ACTIVITY HAD VIOLATED THE AGREEMENT WHEN IT DID
 NOT SELECT THE GRIEVANT AND HE SUSTAINED THE GRIEVANCE.
 
    AS TO THE SECOND ISSUE BEFORE HIM, THE ARBITRATOR ACKNOWLEDGED THAT
 REMEDIES UNDER THE BACK PAY ACT OF 1966 (5 U.S.C. 5596) ARE NOT
 AVAILABLE UNLESS IT IS ESTABLISHED THAT BUT FOR THE WRONGFUL ACTION THE
 WITHDRAWAL OF PAY WOULD NOT HAVE OCCURRED. ON THE BASIS OF TESTIMONY AT
 THE HEARING, THE ARBITRATOR FOUND:
 
    (T)HE GRIEVANT WOULD NOT HAVE RECEIVED THE ASSIGNMENT EVEN THOUGH AN
 UNWARRANTED PERSONNEL
 
    ACTION TOOK PLACE.  ACCORDINGLY, THE GRIEVANT DOES NOT MEET THE "BUT
 FOR" CRITERIA AS OUTLINED
 
    BY THE PROVISIONS OF THE BACK PAY ACT AND IS NOT ENTITLED TO ANY BACK
 PAY.  THEREFORE, THE ARBITRATOR RULED THAT THE GRIEVANT WAS ENTITLED TO
 THE POSITION BUT WAS NOT ENTITLED TO BACKPAY.  ACCORDINGLY, HE MADE THE
 FOLLOWING AWARD:
 
    THE GRIEVANCE IS SUSTAINED.  THE GRIEVANT WILL BE ASSIGNED TO THE
 POSITION OF TOOL AND
 
    PARTS ATTENDANT WG-6 NOT LATER THAN THIRTY DAYS AFTER THE RECEIPT OF
 THIS AWARD.  THE GRIEVANT
 
    WILL RECIEVE NO BACK PAY.
 
    AS PREVIOUSLY STATED, THE AGENCY FILED A PETITION FOR REVIEW OF THE
 ARBITRATOR'S AWARD.  THE RULES OF PROCEDURE SET FORTH IN 5 CLF.R. PART
 2411(1978), AS AMENDED BY SECTION 2400.5 OF THE AUTHORITY'S TRANSITION
 RULES, 44 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE TO THE
 EXTENT THAT THEY ARE CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE STATUTE (5 U.S.C. 7122(A)).
 
    UNDER SECTION 2411.32 OF THESE RULES AS AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTION THAT THE ARBITRATOR'S AWARD VIOLATES APPROPRIATE
 REGULATION, SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  THE AUTHORITY
 ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE AWARD.  THEREAFTER,
 IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7105(I) OF THE STATUTE (5
 U.S.C. 7105(I)), THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM THE
 OFFICE OF PERSONNEL MANAGEMENT CONCERNING THE PROPER INTERPRETATION OF
 RELEVANT PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AS THEY MAY PERTAIN
 TO THE ARBITRATOR'S AWARD IN THIS CASE.
 
    IN ITS RESPONSE TO THE AUTHORITY'S REQUEST, THE OFFICE OF PERSONNEL
 MANAGEMENT ADVISED THAT MANAGEMENT'S RIGHT TO SELECT OR NOT TO SELECT A
 PARTICULAR CANDIDATE FOR A POSITION CANNOT BE ABRIDGED UNLESS A
 COMPETENT AUTHORITY DETERMINES THAT THERE IS A DIRECT CAUSAL CONNECTION
 BETWEEN AN AGENCY'S UNWARRANTED ACTION AND THE FAILURE TO SELECT A
 SPECIFIC EMPLOYEE.  THE OFFICE OF PERSONNEL MANAGEMENT IS OF THE OPINION
 THAT THERE IS NO EVIDENCE IN THIS CASE OF THE REQUIRED "BUT FOR"
 RELATIONSHIP.  IT NOTES IN THIS RESPECT THE ARBITRATOR ACKNOWLEDGED THE
 GRIEVANT WOULD NOT HAVE BEEN SELECTED EVEN IF THE ACTIVITY'S UNWARRANTED
 PERSONNEL ACTION HAD NOT OCCURRED.  IT CONCLUDES THAT WITHOUT THE
 NECESSARY "BUT FOR" FINDING, THE ARBITRATOR'S AWARD VIOLATES CIVIL
 SERVICE RULES AND REGULATIONS AND IS THEREFORE UNENFORCEABLE.  THE
 ADVISORY OPINION OF THE OFFICE OF PERSONNEL MANAGEMENT IS THAT
 "IMPLEMENTATION OF THE ARBITRATOR' AWARD IN THIS CASE WOULD CONTRAVENE
 BINDING OPM DIRECTIVES." A COPY OF THIS RESPONSE OF THE OFFICE OF
 PERSONNEL MANAGEMENT WAS SENT TO THE PARTIES TO AFFORD THEM AN
 OPPORTUNITY TO FILE COMMENTS ON THE RESPONSE FOR THE AUTHORITY'S
 CONSIDERATION PRIOR TO REACHING A FINAL DECISION IN THIS MATTER.
 NEITHER PARTY FILED COMMENTS.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER THE ARBITRATOR'S AWARD
 IS DEFICIENT BECAUSE IT IS CONTRARY TO CIVIL SERVICE RULES AND
 REGULATIONS.  AS NOTED PREVIOUSLY WITH RESPECT TO THE RELEVANT CIVIL
 SERVICE RULES AND REGULATIONS, THE OFFICE OF PERSONNEL MANAGEMENT
 INTERPRETS THESE DIRECTIVES TO REQUIRE THAT AN ARBITRATOR MUST FIND A
 DIRECT CAUSAL CONNECTION BETWEEN AN AGENCY'S VIOLATION OF ITS COLLECTIVE
 BARGAINING AGREEMENT AND ITS FAILURE TO SELECT A PARTICULAR EMPLOYEE FOR
 PROMOTION BEFORE THE ARBITRATOR SPECIFICALLY FOUND AND EXPRESSLY
 ACKNOWLEDGED THAT THE GRIEVANT WOULD NOT IN ANY EVENT HAVE BEEN SELECTED
 FOR THE POSITION.  THE INTERPRETATION OF THE APPLICABLE REGULATIONS BY
 THE OFFICE OF PERSONNEL MANAGEMENT AS TO WHEN AN AGENCY MAY PROPERLY BE
 CONSTRAINED TO SELECT A PARTICULAR EMPLOYEE FOR A POSITION IS NOT
 CHALLENGED BY THE PARTIES AND NO OTHER BASIS FOR DISAGREEMENT WITH SUCH
 INTERPRETATION IS APPARENT IN THIS CASE.  THEREFORE, THE AUTHORITY FINDS
 THE ARBITRATOR'S AWARD IS DEFICIENT AS CONTRARY TO CIVIL SERVICE RULES
 AND REGULATIONS /1/ TO THE EXTENT THAT THE AWARD ORDERS THE GRIEVANT
 ASSIGNED TO THE POSITION OF TOOL AND PARTS ATTENDANT, WG-6.
 
    PURSUANT TO SECTION 2411.37(A) OF THE AMENDED RULES, THE AWARD IS
 ACCORDINGLY MODIFIED BY STRIKING THE SECOND AND THIRD SENTENCES OF THE
 AWARD.  AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
 
    ISSUED, WASHINGTON, D.C., JULY 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN ITS RESPONSE THE OFFICE OF PERSONNEL MANAGEMENT SPECIFICALLY
 CITES FEDERAL PERSONNEL MANUAL CHAPTER 335, SUBCHAPTER 2, REQUIREMENT 6
 (WHICH SETS FORTH MANAGEMENT'S RIGHT TO SELECT), RULE 7.1 OF THE CIVIL
 SERVICE RULES FROM WHICH THAT RIGHT IS DERIVED, AND FEDERAL PERSONNEL
 MANUAL CHAPTER 335, SUBCHAPTER 3-7C AS THEY WERE IN EFFECT AT