Army and Air Force Exchange Service, Fort Knox Exchange, Fort Knox, Kentucky (Activity) and American Federation of Government Employees, Local 2302, AFL-CIO (Union) 



[ v08 p256 ]
08:0256(56)AR
The decision of the Authority follows:


 8 FLRA No. 56
 
 ARMY AND AIR FORCE
 EXCHANGE SERVICE, FORT
 KNOX EXCHANGE, FORT KNOX,
 KENTUCKY
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2302, AFL-CIO
 Union
 
                                            Case No. O-AR-154
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR W. THOMAS MULHALL FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE ISSUE IN THIS CASE INVOLVES THE
 QUESTION OF WHETHER THE GRIEVANT WAS GIVEN "REAL CONSIDERATION" FOR A
 POSITION AT THE ACTIVITY FOR WHICH SHE APPLIED AND WAS NOT SELECTED.
 THE ARBITRATOR NOTED THAT UNDER THE COLLECTIVE BARGAINING AGREEMENT AND
 AGENCY REGULATIONS, CANDIDATES FOR PROMOTION WOULD BE CONSIDERED ON THE
 BASIS OF QUALIFICATIONS, PERFORMANCE, POTENTIAL, AND LENGTH OF SERVICE.
 HOWEVER, HE FOUND NO EVIDENCE IN THE RECORD THAT QUALIFICATIONS,
 PERFORMANCE OR POTENTIAL WERE CONSIDERED BY THE ACTIVITY IN MAKING THE
 SELECTION AT ISSUE IN THIS CASE.  HE THEN DETERMINED THAT WITH NO
 CONSIDERATION BEING GIVEN TO THESE CRITERIA AND WITH LENGTH OF SERVICE
 THE ONLY REMAINING OBJECTIVE CRITERION, THE CANDIDATE WITH THE GREATEST
 LENGTH OF SERVICE WAS ENTITLED TO THE POSITION.  BECAUSE THE GRIEVANT
 WAS THE MOST SENIOR OF THE CANDIDATES WHO APPLIED FOR THE POSITION, THE
 ARBITRATOR ORDERED THAT SHE BE RETROACTIVELY PROMOTED TO THE POSITION
 WITH BACKPAY.
 
    AS ONE OF ITS EXCEPTIONS, THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO SECTION 7106(A)(2)(C) OF THE STATUTE.  THE AUTHORITY AGREES.
  THE AUTHORITY HAS HELD THAT NO ARBITRATION AWARD MAY DENY AN AGENCY THE
 AUTHORITY TO EXERCISE ITS RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.
 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL AVIATION
 ADMINISTRATION, 5 FLRA NO. 101 (1981).  WITH RESPECT TO FILLING
 POSITIONS, SECTION 7106(A)(2)(C) ENSURES TO MANAGEMENT THE RIGHT TO MAKE
 THE ACTUAL SUBSTANTIVE SELECTION OR APPOINTMENT.  BECAUSE THE
 ARBITRATOR'S AWARD IN THIS CASE OVERTURNS THE ACTIVITY'S SELECTION FOR
 THE POSITION AND ORDERS THE RETROACTIVE PROMOTION OF THE GRIEVANT TO THE
 POSITION SOLELY ON THE BASIS OF SENIORITY, THE AWARD CLEARLY DENIES
 MANAGEMENT ITS RIGHT TO MAKE THE ACTUAL SELECTION DECISION.  THUS, THE
 AWARD IS CONTRARY TO SECTION 7106(A)(2)(C) AND CONSEQUENTLY MUST BE SET
 ASIDE.
 
    ISSUED, WASHINGTON, D.C., MARCH 24, 1982
 
                       RONALD