21:0418(57)AR - VA Medical and Reg'l Office Center, San Juan, P.R. and AFGE, Local Union 2408 -- 1986 FLRAdec AR



[ v21 p418 ]
21:0418(57)AR
The decision of the Authority follows:


 21 FLRA No. 57
 
 VETERANS ADMINISTRATION MEDICAL 
 AND REGIONAL OFFICE CENTER, 
 SAN JUAN, PUERTO RICO
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL UNION NO. 2408
 Union
 
                                            Case No. 0-AR-1044
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Richard H. Siegel filed by the Veterans Administration
 (Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievant alleged that she was not selected for vacant claims
 examiner positions for which she applied over a three-year period
 because of discrimination over an alleged "whistleblowing" incident and
 over her activities as a union representative.  The Arbitrator
 determined that the grievant was fully qualified for positions up to and
 including that of Claims Examiner GS-11.  He found that the selecting
 officials had used highly subjective criteria and had selected persons
 who were no more experienced or less experienced than the grievant.  The
 Arbitrator concluded that the Activity violated the parties' agreement
 by repeatedly denying her applications for the desired position, and
 that the Agency's actions were discriminatory and based upon non-merit
 reasons rather than job related selection criteria.  In his award, the
 Arbitrator sustained the grievance in its entirety and, as a remedy,
 directed the Agency to immediately select the grievant for the position
 of GS-11 Claims Examiner in the Adjudication Division.  The Arbitrator
 added that if there was no GS-11 Claims Examiner position vacant at the
 time of his award, then the grievant was to be granted priority
 consideration for such a position as soon as one became vacant.  The
 Arbitrator also denied the grievant's request for retroactive promotion
 and backpay.
 
                              III.  EXCEPTION
 
                              A.  Contention
 
    As to its exception, the Agency alleges that the award is contrary to
 law.  Specifically, the Agency contends the award violates management's
 right to select under section 7106(a)(2)(C) of the Statute in that the
 Arbitrator failed to determine that the grievant would have been
 selected for any of the positions for which she applied had the Activity
 not violated the agreement.
 
                        B.  Analysis and Conclusion
 
    The Authority has consistently held in cases of this nature that
 management's right to make the actual selections for promotion 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 for
 promotion.  E.g., Office of the Secretary, U.S. Department of
 Transportation and American Federation of Government Employees, Local
 3313, AFL-CIO, 17 FLRA No. 14 (1985);  American Federation of Government
 Employees, Local 12 and United States Department of Labor, 15 FLRA 543
 (1984).  In terms of this case, the Authority concludes that the
 Arbitrator failed to make the necessary finding.  Although the
 Arbitrator found that the Activity had violated the parties' agreement
 by failing to select the grievant and by actions that were
 discriminatory in nature and based upon non-merit reasons rather than
 job related selection criteria, he did not find that the grievant would
 have been selected but for the unwarranted actions.  Consequently, that
 portion of the Arbitrator's award directing the immediate selection of
 the grievant for the position of GS-11 Claims Examiner is deficient as
 contrary to section 7106(a)(2)(C) of the Statute.
 
                               IV.  DECISION
 
    Accordingly, based upon the above analysis and conclusions, the
 Arbitrator's award is modified by striking the portion found deficien