Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey (Activity) and National Federation of Federal Employees, Local 1437 (Union)



[ v07 p703 ]
07:0703(109)AR
The decision of the Authority follows:


 7 FLRA No. 109
 
 PICATINNY ARSENAL, U.S.
 ARMY ARMAMENT RESEARCH
 AND DEVELOPMENT COMMAND,
 DOVER, NEW JERSEY
 Activity
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 1437
 Union
 
                                            Case No. O-AR-178
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR OGDEN W. FIELDS FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE UNION FILED AN OPPOSITION.  /2/
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT IN THIS CASE IS A GS-12
 MECHANICAL ENGINEER ELIGIBLE FOR REPROMOTION TO A GS-13 POSITION.  THE
 DISPUTE HEREIN AROSE WHEN, OVER A PERIOD OF THREE YEARS, THE GRIEVANT
 UNSUCCESSFULLY APPLIED AS A REPROMOTION ELIGIBLE FOR APPROXIMATELY 80
 POSITIONS.  A GRIEVANCE WAS FILED AND ULTIMATELY THE GRIEVANT'S
 NONSELECTION FOR THREE OF THESE POSITIONS WAS SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR CHARACTERIZED THE QUESTION BEFORE HIM AS "WHETHER THE
 GRIEVANT RECEIVED THE TREATMENT HE IS ENTITLED TO UNDER THE REGULATIONS
 AND THE CONTRACT, NAMELY SPECIAL CONSIDERATION, AND (WHETHER THERE WERE)
 PERSUASIVE REASONS FOR HIS NONSELECTION." /3/ IN A LENGTHY AND DETAILED
 OPINION, THE ARBITRATOR CAREFULLY CONSIDERED ALL OF THE EVIDENCE AND
 TESTIMONY BEFORE HIM WITH RESPECT TO THE ACTIVITY'S FILLING OF EACH OF
 THE THREE POSITIONS.  HE REFERRED IN DETAIL TO THE GRIEVANT'S PAST
 RECORD AND EXPERIENCE AS IT APPLIED TO THE POSITION DESCRIPTION AND JOB
 REQUIREMENTS OF EACH POSITION.  BASED UPON HIS FINDINGS AND ANALYSIS,
 THE ARBITRATOR CONCLUDED THAT THE ACTIVITY HAD VIOLATED THE AGREEMENT BY
 NOT GIVING THE GRIEVANT THE SPECIAL CONSIDERATION TO WHICH HE WAS
 ENTITLED AND THAT THE REASONS GIVEN BY THE ACTIVITY FOR THE GRIEVANT'S
 NONSELECTION FOR EACH OF THE THREE POSITIONS WERE NOT PERSUASIVE.
 
    IN FORMULATING A REMEDY FOR THE VIOLATION, THE ARBITRATOR NOTED THAT
 THE FILLING OF THE FIRST POSITION HAD OCCURRED PRIOR TO ENACTMENT OF THE
 CIVIL SERVICE REFORM ACT OF 1978 AND THAT APPLICABLE CASE LAW UNDER
 EXECUTIVE ORDER NO. 11491, /4/ UPHOLDING MANAGEMENT'S RIGHT TO SELECT OR
 NONSELECT IN CASES INVOLVING REPROMOTION ELIGIBLES, PREVENTED HIM FROM
 ORDERING THAT THE GRIEVANT BE PROMOTED TO THE FIRST POSITION AND BE
 GIVEN BACKPAY.  WITH RESPECT TO THE OTHER TWO POSITIONS, HOWEVER, THE
 ARBITRATOR NOTED THAT THEY WERE FILLED AFTER THE EFFECTIVE DATE OF THE
 CIVIL SERVICE REFORM ACT AND THAT THE AMENDMENTS MADE BY SECTION 702 OF
 THE ACT TO THE BACK PAY ACT OF 1966 /5/ CONTAINED "(T)HE AUTHORITY TO
 REMEDY A VIOLATION OF REPROMOTION RIGHTS INCLUDING (BACKPAY)."
 THEREFORE, HE FOUND THAT
 
    UNDER (THE BACK PAY ACT AS AMENDED) THE GRIEVANT HAS BEEN AFFECTED BY
 AN UNJUSTIFIED
 
    PERSONNEL ACTION BY THE AGENCY'S FAILURE TO CONFER A BENEFIT TO WHICH
 HE WAS ENTITLED.  SUCH
 
    PERSONNEL ACTION CONSISTED IN DENYING HIM THE SPECIAL CONSIDERATION
 FOR REPROMOTION TO THE 2ND
 
    AND 3RD POSITIONS DESCRIBED HEREIN AND FOR NOT FURNISHING HIM
 PERSUASIVE REASONS FOR HIS
 
    NONSELECTION.
 
    TO CORRECT THIS "UNJUSTIFIED PERSONNEL ACTION," THE ARBITRATOR FOUND
 THAT THE GRIEVANT SHOULD BE REPROMOTED TO THE SECOND POSITION AT ISSUE
 FOR WHICH HE HAD NOT BEEN SELECTED.  HOWEVER, BECAUSE THE ARBITRATOR
 FOUND NO CASE LAW UNDER THE BACK PAY ACT AS AMENDED IN 1978 REGARDING
 ARBITRATORS' AWARDS DIRECTING RETROACTIVE PROMOTIONS AND BACKPAY IN SUCH
 CASES, THE ARBITRATOR DETERMINED THAT IT WOULD BE "EQUITABLE TO ORDER
 RESTORATION OF GRADE AND (BACKPAY) RETROACTIVELY BUT NOT THE REPLACEMENT
 OF THE INCUMBENT BY THE GRIEVANT TO THE (2ND POSITION)." ACCORDINGLY, HE
 MADE THE FOLLOWING AWARD:
 
    THE GRIEVANCE INVOLVING THE 1ST POSITION, GENERAL ENGINEER, WHICH I
 FOUND TO BE
 
    MERITORIOUS, IS DENIED AS UNENFORCEABLE.
 
    THE GRIEVANCES INVOLVING THE 2ND AND 3RD POSITIONS, CONFIGURATION
 MANAGEMENT ENGINEER AND
 
    SUPERVISORY GENERAL ENGINEER, RESPECTIVELY, ARE SUSTAINED.
 
    THE GRIEVANT IS AWARDED IMMEDIATE RESTORATION TO HIS FORMER GRADE,
 GS-801-13, AND THE
 
    DIFFERENCE IN PAY BETWEEN WHAT HE WAS EARNING ON MAY 2, 1979, THE
 DATE OF HIS NONSELECTION IN
 
    THE 2ND POSITION, AND WHAT HE WOULD HAVE BEEN EARNING HAD HE BEEN
 REPROMOTED TO GRADE
 
    GS-801-13 ON THAT DATE. IN LIEU OF DIRECTING THE AGENCY TO ASSIGN THE
 GRIEVANT TO THAT
 
    POSITION BY REPLACING THE INCUMBENT, HIS GRADE AND COMPENSATION SHALL
 CONTINUE AT GS-801-13 IN
 
    HIS PRESENT POSITION OR ANY OTHER POSITION TO WHICH HE IS ASSIGNED
 UNTIL SUCH TIME HE HAS BEEN
 
    ASSIGNED TO A POSITION GRADED AT GS-801-13.
 
    IN ITS FIRST EXCEPTION, THE AGENCY STATES THAT IT "OBJECTS TO . . .
 (T)HE ARBITRATOR'S FINDING THAT MANAGEMENT MAY NOT CATEGORICALLY REJECT
 A (REPROMOTION) CANDIDATE:  AND THAT IT "TAKE(S) ISSUE" WITH THE
 ARBITRATOR'S FINDING THAT THE GRIEVANT WAS NOT ACCORDED SPECIAL
 CONSIDERATION FOR THE SECOND POSITION AT ISSUE.  IN ITS OPPOSITION, THE
 UNION STATES THAT THE AGENCY HAS TAKEN THE ARBITRATOR'S STATEMENT
 REGARDING MANAGEMENT'S RIGHT TO REJECT A REPROMOTION ELIGIBLE OUT OF
 CONTEXT AND THAT THE AGENCY'S EXCEPTION DOES NOT PRESENT A GROUND FOR
 FINDING THE AWARD DEFICIENT.
 
    THE AUTHORITY AGREES WITH THE UNION THAT THE AGENCY'S FIRST EXCEPTION
 DOES NOT PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT.  THE
 ARBITRATOR CAREFULLY REVIEWED AND ANALYZED THE AGENCY'S ACTIONS WITH
 RESPECT TO EACH OF THE POSITIONS AT ISSUE AND FOUND THAT THE AGENCY, IN
 VIOLATION OF SPECIFIC PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT,
 HAD DENIED THE GRIEVANT SPECIAL CONSIDERATION FOR REPROMOTION AND HAD
 NOT FURNISHED HIM WITH PERSUASIVE REASONS FOR HIS NONSELECTIONS.
 ESSENTIALLY, THE AGENCY IN ITS FIRST EXCEPTION IS DISAGREEING WITH THE
 ARBITRATOR'S FINDINGS OF FACT.  IT IS WELL ESTABLISHED THAT SUCH
 ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT.  E.G.,
 DEPARTMENT OF THE AIR FORCE, CIVILIAN PERSONNEL BRANCH, CARSWELL AIR
 FORCE BASE, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 1364, 5 FLRA NO. 7(1981).
 
    IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO LAW.  IN SUPPORT OF THIS
 EXCEPTION, THE AGENCY ASSERTS THAT THE AWARD VIOLATED THE BACK PAY ACT
 /6/ BECAUSE THE ARBITRATOR DID NOT MAKE THE REQUISITE FINDING THAT "BUT
 FOR" THE UNWARRANTED PERSONNEL ACTION THE GRIEVANT WOULD ORIGINALLY HAVE
 BEEN PROMOTED TO THE POSITION IN QUESTION.
 
    FOR THE REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE AWARD IS
 DEFICIENT AS CONTRARY TO LAW.  THE BACK PAY ACT MAKES IT CLEAR THAT AN
 AWARD OF RETROACTIVE PROMOTION AND BACKPAY IS ONLY AVAILABLE WHEN THE
 EMPLOYEE WOULD HAVE RECEIVED THE PROMOTION HAD THE EMPLOYEE NOT
 SUFFERED
 AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.  5 U.S.C.
 5596(B)(1)(A)(I);  VETERANS ADMINISTRATION HOSPITAL AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LODGE 2201, 4 FLRA NO. 57(1980).
 THIS IS BECAUSE RELIEF UNDER THE ACT IS INTENDED TO MAKE THE AGGRIEVED
 EMPLOYEE WHOLE-- THAT IS, TO PLACE THE EMPLOYEE IN THE POSITION THE
 EMPLOYEE WOULD ORIGINALLY HAVE ACHIEVED BUT FOR THE UNWARRANTED ACTION.
 SEE VETERANS ADMINISTRATION HOSPITAL, SUPRA, AT 6 OF DECISION.
 ACCORDINGLY, IN ORDER FOR A RETROACTIVE PROMOTION AND BACKPAY TO BE
 AUTHORIZED UNDER THE ACT, THERE MUST BE A DETERMINATION NOT ONLY THAT
 THE EMPLOYEE HAS SUFFERED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION
 WITHIN THE MEANING OF THE ACT, BUT ALSO THAT SUCH ACTION DIRECTLY
 RESULTED IN THE DENIAL OF A PROMOTION TO THE AGGRIEVED EMPLOYEE THAT THE
 EMPLOYEE WOULD OTHERWISE HAVE RECEIVED.  ID.
 
    IN TERMS OF THIS CASE, THERE IS NO QUESTION THAT THE ARBITRATOR FOUND
 A VIOLATION BY THE AGENCY OF THE COLLECTIVE BARGAINING AGREEMENT.  AS A
 REPROMOTION ELIGIBLE, THE GRIEVANT WAS ENTITLED TO SPECIAL CONSIDERATION
 FOR PROMOTION TO VACANCIES AT HIS FORMER GRADE AND SERIES AND, IF HE
 WERE NOT SELECTED FOR A POSITION FOR WHICH HE WAS ENTITLED TO SPECIAL
 CONSIDERATION, THE AGENCY WAS OBLIGATED TO PROVIDE "PERSUASIVE REASONS"
 FOR HIS NONSELECTION.  THE ARBITRATOR FOUND THAT THE AGENCY FAILED TO
 FULFILL ITS OBLIGATION IN BOTH RESPECTS.  WHAT IS NOT PRESENT, HOWEVER,
 IS A FINDING BY THE ARBITRATOR THAT THE AGENCY'S FAILURE TO PROVIDE
 "SPECIAL CONSIDERATION" AND "PERSUASIVE REASONS" FOR HIS NONSELECTIONS
 DIRECTLY RESULTED IN THE GRIEVANT'S FAILURE TO BE REPROMOTED.  THERE IS
 NOTHING IN THE AWARD TO SUSTAIN A FINDING THAT THE GRIEVANT WOULD
 ORIGINALLY HAVE BEEN PROMOTED TO A PARTICULAR POSITION HAD THE AGENCY
 NOT VIOLATED THE AGREEMENT.  IN FACT, THE ARBITRATOR NOTED WITH RESPECT
 TO EACH OF THE THREE POSITIONS THAT THE GRIEVANT WAS ENTITLED ONLY TO
 SPECIAL CONSIDERATION, NOT TO SELECTION.  IT IS APPARENT THAT THE
 ARBITRATOR FELT THAT, IF GIVEN THE PROPER CONSIDERATION TO WHICH HE WAS
 ENTITLED, THE GRIEVANT SHOULD HAVE BEEN REPROMOTED;  HOWEVER, THAT IS
 NOT THE SAME AS FINDING THAT THE AGENCY UNEQUIVOCALLY WOULD ORIGINALLY
 HAVE REPROMOTED THE GRIEVANT TO A PARTICULAR POSITION.  IN SUM, THE
 ARBITRATOR FAILED TO EXPRESSLY MAKE THE FINDINGS REQUISITE TO A PROPER
 ORDER OF RETROACTIVE PROMOTION AND BACKPAY AND HIS AWARD DIRECTING THAT
 THE GRIEVANT BE GIVEN BACKPAY MUST THEREFORE BE FOUND DEFICIENT.  /7/
 
    HOWEVER, WHILE, FOR THE REASONS INDICATED, THE PARTICULAR REMEDY
 DIRECTED BY THE ARBITRATOR CANNOT BE SUSTAINED, THE AUTHORITY NOTES THAT
 THE ARBITRATOR SPECIFICALLY FOUND THAT THE ACTIVITY DID NOT ACCORD THE
 GRIEVANT EITHER THE SPECIAL CONSIDERATION RO THE PERSUASIVE REASONS FOR
 HIS NONSELECTIONS TO WHICH HE WAS ENTITLED.  THEREFORE, IN LIGHT OF ALL
 OF THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE ARBITRATOR'S
 DETAILED ANALYSIS AND FINDINGS, INCLUDING THE FACT THAT THE GRIEVANT HAS
 UNSUCCESSFULLY APPLIED FOR APPROXIMATELY 80 VACANCIES AS A REPROMOTION
 ELIGIBLE, THE AUTHORITY BELIEVES THAT THE ARBITRATOR'S AWARD SHOULD BE
 MODIFIED TO PROVIDE A LEGAL AND APPROPRIATE REMEDY.  ACCORDINGLY, AND
 PURSUANT TO THE PROVISIONS OF SECTION 7122(A) OF THE STATUTE WHICH
 AUTHORIZE THE AUTHORITY TO "TAKE SUCH ACTION AND MAKE SUCH
 RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS NECESSARY,
 CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS," THE AUTHORITY
 HEREBY MODIFIES THE ARBITRATOR'S "AWARD" BY STRIKING THE LAST PARAGRAPH
 THEREOF AND INSERTING IN ITS PLACE THE FOLLOWING:
 
    THE GRIEVANT SHALL BE SELECTED FOR THE NEXT GS-13 POSITION FOR WHICH
 HE APPLIES AND IS
 
    QUALIFIED UNLESS THE FAILURE TO SELECT THE GRIEVANT CAN BE PROPERLY
 JUSTIFIED IN ACCORDANCE
 
    WITH APPLICABLE LAW, RULE, OR REGULATION OR THE COLLECTIVE BARGAINING
 AGREEMENT.  IF THE
 
    ACTIVITY DOES NOT SELECT THE GRIEVANT, IT SHALL PROVIDE HIM WITH A
 DETAILED STATEMENT IN
 
    WRITING AS TO THE SPECIFIC REASONS FOR HIS NONSELECTION.
 
    ISSUED, WASHINGTON, D.C., JANUARY 18, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ IN ITS OPPOSITION, THE UNION ALSO CONTENDS THAT THE AGENCY'S
 EXCEPTIONS SHOULD BE DISMISSED AS UNTIMELY FILED.  HOWEVER, THE AGENCY'S
 EXCEPTIONS WERE TIMELY FILED WITH THE AUTHORITY IN ACCORDANCE WITH THE
 AUTHORITY'S RULES AND REGULATIONS AND THEREFORE THIS MATTER IS PROPERLY
 BEFORE THE AUTHORITY FOR DECISION.
 
    IN ADDITION, IN ITS OPPOSITION THE UNION TAKES EXCEPTION TO A PORTION
 OF THE ARBITRATOR'S AWARD.  SECTION 2425.1(B) OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2425.1(B)(1981)). PROVIDES THAT THE TIME LIMIT
 FOR FILING AN EXCEPTION TO AN ARBITRATION AWARD IS 30 DAYS BEGINNING ON
 THE DATE OF THE AWARD.  THE SUBJECT ARBITRATION AWARD IS DATED NOVEMBER
 26, 1980. THEREFORE, UNDER SECTION 2425.1(B) OF THE AUTHORITY'S
 REGULATIONS, THE UNION'S EXCEPTION FILED AS PART OF ITS OPPOSITION TO
 THE AGENCY'S EXCEPTION IS UNTIMELY.  IN THIS REGARD, ANY EXCEPTION WHICH
 THE UNION WISHED TO FILE TO THE AWARD WAS DUE AT THE AUTHORITY NO LATER
 THAN DECEMBER 29, 1980, AND THE AUTHORITY IS NOT EMPOWERED TO EXTEND OR
 WAIVE THE TIME LIMIT SET FORTH IN SECTION 7122(B) OF THE STATUTE FOR
 FILING EXCEPTIONS TO ARBITRATORS' AWARDS.  BECAUSE THE UNION'S EXCEPTION
 WAS UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE UNION'S
 EXCEPTION IS DISMISSED.
 
    /3/ ACCORDING TO THE ARBITRATOR, ARTICLE XVI, SECTION 2 OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT INCORPORATES BY REFERENCE THE
 FOLLOWING REGULATORY LANGUAGE IN EFFECT AT THE TIME THE PARTIES
 NEGOTIATED THEIR AGREEMENT:
 
    AN EMPLOYEE DEMOTED WITHOUT PERSONAL CAUSE IS ENTITLED TO SPECIAL
 CONSIDERATION FOR
 
    REPROMOTION IN THE AGENCY IN WHICH HE WAS DEMOTED.  ALTHOUGH HE IS
 NOT GUARANTEED REPROMOTION,
 
    ORDINARILY HE SHOULD BE REPROMOTED WHEN A VACANCY OCCURS IN A
 POSITION AT HIS FORMER GRADE (OR