17:0054(14)AR - Office of the Secretary, Transportation and AFGE Local 3313 -- 1985 FLRAdec AR



[ 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