21:0927(108)AR - Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Ky. and AFGE, Local 817 -- 1986 FLRAdec AR
[ v21 p927 ]
The decision of the Authority follows:
21 FLRA No. 108 U.S. DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, LEXINGTON, KENTUCKY Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 817 Union Case No. 0-AR-1025 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator John J. Murphy filed by the Department of Justice (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 Office of Personnel Management filed a brief as an amicus curiae. II. BACKGROUND AND ARBITRATOR'S AWARD The grievant alleged that her performance evaluation of "fully successful" was erroneous and that as a result she was not selected for certain GS-8 positions for which she competed. The Arbitrator determined that the grievant's evaluation for the 1983-1984 appraisal period was substantially defective because it did not include input from the unit manager who acted as her supervisor during nine of the twelve months covered by the evaluation. However, he found that although the grievant's rating would probably have been higher if the evaluation had been conducted properly, there was no basis upon which he could determine the actual rating. The Arbitrator therefore concluded that he was unable to make a finding that "but for" the error the grievant would have been promoted to GS-8 in June 1984 rather than May 1985, and that he was unable to award the grievant a retroactive promotion. The Arbitrator, noting that the grievant had subsequently been promoted to GS-8, determined that an appropriate remedy for earlier deficiencies in the process of rating the grievant would be the granting of preferential treatment for promotion to GS-9 and made the following award: The grievance is granted to the extent the Grievant shall be given priority placement for the next promotion to a GS-9 level at the Federal Correctional Institution in Lexington, Kentucky, that occurs after the Grievant has had at least one year in the GS-8 grade. III. EXCEPTIONS In its exception, the Agency contends that the award is contrary to section 7106(a)(2)(C) of the Statute because it requires "placement" of the grievant in a GS-9 position and therefore negates management's right to make a selection for appointment to such a position from any other appropriate source. The Agency further contends that if the Arbitrator directed that the grievant be given priority consideration for promotion to GS-9, the award is contrary to Federal Personnel Manual (FPM) chapter 335. In support of this contention the Agency argues that according priority consideration to the grievant for a GS-9 position would be inappropriate and contrary to the intent of FPM chapter 335. The Agency acknowledges that under FPM chapter 335, Appendix A-4, /*/ agencies have broad discretion to use priority consideration to remedy errors in promotion actions. However, the Agency argues that priority consideration is a limited exception to the merit promotion process and that the intent of the FPM provision is to give an employee who has been erroneously not selected or not properly considered for promotion, consideration ahead of others only for another position at the same grade level. In its amicus curiae submission, the Office of Personnel Management agrees with the Agency's interpretation of FPM chapter 335. IV. ANALYSIS AND CONCLUSIONS The Authority finds that the decision on the issue of whether the Arbitrator's award is deficient as the Agency alleges depends on the meaning of the word "placement." If "placement" means selection, the Agency is correct in its contention that the award is contrary to section 7106(a)(2)(C) of the Statute. It is well established that management's right to make the actual selection for an 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. Office of the Secretary, U.S. Department of Transportation and American Federation of Government Employees, Local 3313, AFL-CIO, 17 FLRA 54 (1985). The Arbitrator did not find any connection whatsoever between the Agency's improper action and the nonselection of the grievant for any GS-9 position. Rather, the Arbitrator specifically declined to even make a finding that but for the improper evaluation, the grievant would have been selected for a GS-8 position. Consequently, as the Arbitrator correctly recognized, there was no legal basis for ordering a retroactive promotion to GS-8, and there is likewise no legal basis for ordering the selection of the grievant for a GS-9 position. The Authority therefore concludes that the Arbitrator's award, to the extent it directs placement of the grievant in a GS-9 position, is contrary to management's right to make selections for appointment under section 7106(a)(2)(C) of the Statute. If, however, "priority placement" means "priority consideration," the Agency has failed to establish that the award is deficient. In the typical situation where an aggrieved employee has been wrongfully denied the consideration or process to which the employee was entitled in a promotion action, and the employee has not yet been promoted when the grievance is considered, the Authority has recognized that an appropriate remedy under Appendix A-4c(2) of FPM chapter 335 is to direct that the employee be granted priority consideration for promotion to the next available higher-graded position for which the employee is qualified. E.g., Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452, 456 (1981). However, as the Agency acknowledges, FPM chapter 335 does not expressly limit the remedy of priority consideration to those typical situations. Specifically, the FPM does not prohibit priority consideration as a remedy in circumstances such as here involved. Rather, as the Agency further acknowledges, Appendix A-4 provides broad discretion in the use of priority consideration as a corrective action. In this case, it is clear that the Arbitrator, consistent with Appendix A-4, based his determination that priority treatment for a GS-9 vacancy was warranted to remedy the violation found on the facts, circumstances, rights and interests involved. Furthermore, it is well established that arbitrators have considerable latitude in fashioning remedies in disputes. Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64 (1981). The Authority therefore concludes that the Agency has failed to establish that an award of priority consideration for promotion to GS-9 in this case is deficient. V. DECISION Accordingly, for the above reasons, the Arbitrator's award is modified to provide as follows: The grievance is granted and the Grievant shall be given priority consideration for promotion to the next available GS-9 position at the Federal Correctional Institution in Lexington, Kentucky, that occurs after the Grievant has at least one year in the GS-8 grade and for which the grievant applies and is qualified. Issued, Washington, D.C., May 22, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) Appendix A-4 of FPM chapter 335 provides, in part: CHAPTER 335. PROMOTION AND INTERNAL PLACEMENT Appendix A. General Regulatory Provisions A-4. CORRECTIVE ACTIONS a. General. (1) Alternative actions . . . The nature and extent of actions to be taken in any case have to be determined on the basis of all the facts in the case, with due regard to the circumstances surrounding the violation, to the equitable and legal rights of the parties concerned, and to the interests of the Government. * * * * * * * c. Action involving nonselected employees. * * * * * * * (2) If the corrective action did not include vacating the position, an employee who was not promoted or given proper consideration because of the violation may be given priority consideration under a new promotion or other placement action. Agencies may make the final determination on how they will handle actions involving nonselected employees, except when actions are mandated by law or regulation.