21:0927(108)AR - Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Ky. and AFGE, Local 817 -- 1986 FLRAdec AR



[ v21 p927 ]
21:0927(108)AR
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 t