10:0547(94)AR - Defense Contract Administration, Services Management Area (DCASMA) Cedar Rapids, IA and AFGE Local 2752 -- 1982 FLRAdec AR



[ v10 p547 ]
10:0547(94)AR
The decision of the Authority follows:


 10 FLRA No. 94
 
 DEFENSE CONTRACT ADMINISTRATION
 SERVICES MANAGEMENT AREA (DCASMA)
 CEDAR RAPIDS, IOWA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2752, AFL-CIO
 Union
 
                                            Case No. O-AR-335
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Thomas P. Gilroy filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Union filed an
 opposition.
 
    The dispute in this matter concerned the filling of a GS-5 contract
 administrator position.  The original job opportunity announcement was
 issued on November 27, 1980, but was subsequently amended to change the
 criteria for evaluating the experience of applicants meeting minimum
 qualification requirements.  After the selection was announced, a
 grievance was filed and submitted to arbitration protesting the use of
 the amended evaluation criteria.  The Arbitrator determined that the
 selection action did not conform to the Federal Personnel Manual (FPM)
 and the parties' collective bargaining agreement.  He specifically found
 that the Activity improperly amended the evaluation criteria for
 experience and that the awarding of the maximum experience points to the
 successful applicant was not clearly supported in the records presented.
  Accordingly, the Arbitrator in his award ordered as follows:
 
          2.  The position in question is to be vacated.  The (Activity)
       is to make a selection from the Grievants in the original best
       qualified group who were not selected for this position.
 
    As one of its exceptions, the Agency contends that the award is
 contrary to governing government-wide regulations.  Specifically, the
 Agency maintains that both the Arbitrator's order that the position be
 vacated in advance of corrective action and the Arbitrator's order that
 the Activity make a selection from the grievants in the original best
 qualified group are contrary to FPM chapter 335.  The Authority agrees.
 
    As the Authority indicated in The Adjutant General, State of
 Oklahoma, Air National Guard and American Federation of Government
 Employees, Will Rogers Air National Guard Local 3953, 8 FLRA No. 23
 (1982), the incumbent employee in these cases is entitled pursuant to
 FPM chapter 335, appendix A, section A-4b to be retained in the position
 unless it is specifically determined that the selection action cannot be
 corrected to conform essentially to all applicable requirements as of
 the date the action was taken.  In terms of this case, the Arbitrator
 did not specifically determine that a reconstruction of the selection
 action showed that the selected employee could not have been selected
 had the proper procedures been followed at the time the action was
 taken.  Therefore, the award to the extent it orders the position
 vacated in advance of corrective action is deficient as contrary to FPM
 chapter 335, appendix A, section A-4.  See id. at 3.
 
    Similarly, FPM chapter 335, subchapter 1-4, Requirement 4 provides
 for management's right to select or not select from among a group of
 best qualified candidates or from other appropriate sources.  Local
 R4-97, National Association of Government Employees and Naval Mine
 Engineering Facility, Yorktown, Virginia, 5 FLRA No. 57 (1981), at 3-4.
 In terms of this case, the Arbitrator by ordering a selection from the
 original best qualified group precludes a selection directly from other
 appropriate sources.  Therefore, the award to the extent it orders the
 Activity to make a selection from the grievants in the original best
 qualified group is likewise deficient as contrary to FPM chapter 335,
 subchapter 1-4, Requirement 4.  Cf. American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 8 FLRA No. 97 (1982), at 3-4 (proposal which would
 require the agency to select from a certificate of best qualified
 applicants was found to be inconsistent with section 7106(a)(2)(C)(ii)
 of the Statute which also provides for management's right to select from
 other appropriate sources as enumerated in FPM chapter 335, subchapter
 1-4, Requirement 4).  Consequently, the award in these respects is
 deficient as contrary to FPM chapter 335 and cannot be implemented.
 
    Accordingly, and in view of the finding that the Activity improperly
 amended the evaluation criteria for experience, the award is modified to
 provide the following remedy:  /1/
 
          2.  The Activity shall rerun the selection action for the
       contract administrator position in this case under the job
       opportunity announcement issued on November 27, 1980.  The
       rerunning of the selection action by the Activity and the action
       involving the incumbent employee must fully conform with
       controlling law and regulation and with the parties' collective
       bargaining agreement.
 
 See also National Bureau of Standards, Boulder Laboratories and American
 Federation of Government Employees, Local 2186, 9 FLRA No. 53 (1982), at
 3;  The Adjutant General, State of Oklahoma, 8 FLRA No. 23, at 3-4.
 Issued, Washington, D.C., December 3,