22:0382(36)AR - Naval Ordnance Station, Louisville, KY and IAM, Local Lodge 830 -- 1986 FLRAdec AR



[ v22 p382 ]
22:0382(36)AR
The decision of the Authority follows:


 22 FLRA No. 36
 
 U.S. NAVAL ORDNANCE STATION, 
 LOUISVILLE, KENTUCKY
 Activity
 
 and
 
 INTERNATIONAL ASSOCIATION 
 OF MACHINISTS AND AEROSPACE 
 WORKERS, LOCAL LODGE 830
 
                                            Case No. 0-AR-1039
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator James P. Martin 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerned the Activity's failure to
 permanently promote the grievant to the position of planner and
 estimator, WD-8.  According to the Arbitrator, the grievant is a
 journeyman electrician who was temporarily promoted on September 5,
 1982, to the position of assistant planner and estimator, WD-5, in the
 Activity's public works department.  In 1983 after a commercial activity
 study, it was determined to contract out the public works functions.  On
 March 15, 1984, the grievant's temporary promotion to assistant planner
 was terminated and he was temporarily promoted to the position of
 planner and estimator to assist in the transition to contractor
 operation of the public works functions which were contracted out on
 June 1, 1984.  The grievance was filed when the grievant was only
 temporarily rather than permanently promoted to planner and estimator.
 
    The Arbitrator concluded that the written documentation of the
 grievant's temporary promotion to assistant planner fully complied with
 regulation.  He acknowledged that the documentation confirmed that the
 promotion was temporary and that although a permanent promotion to the
 position of planner was possible, no promise of such promotion was made
 in writing.  However, the Arbitrator found that orally the grievant was
 continuously promised that he would be permanently promoted to planner
 when it was possible and that these oral inducements completely
 contradicted the merit promotion regulation.  He also found that
 contrary to that regulation, the Activity had used the temporary
 promotion of the grievant to assistant planner to train or evaluate him
 for the planner position.  While acknowledging that the determination to
 contract out had abolished the position for which the grievant claimed a
 permanent promotion, the Arbitrator concluded that the grievant should
 have been permanently promoted to the position of planner and estimator
 on March 15, 1984.  Accordingly, the Arbitrator ordered that the
 grievant be promoted on a permanent basis to planner and estimator
 effective March 15, 1984.
 
                             III.  EXCEPTIONS
 
    In one of its exceptions, the Agency contends that the award
 interferes with management's right to select in violation of section
 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4,
 Requirement 4.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    The Authority has specifically held that management's right under the
 Statute and the FPM to make the actual selections for promotion can only
 be abridged by an award of an arbitrator when the arbitrator finds a
 direct connection between improper agency action and the failure of a
 specific employee to be selected for promotion.  U.S. Army Missile
 Command, U.S. Army Communications Command Agency -- Redstone, U.S. Army
 Commissary, Redstone Arsenal, Alabama and American Federation of
 Government Employees, Local 1858, AFL-CIO, 20 FLRA No. 94 (1985).  It is
 necessary for arbitrators in these cases to reconstruct, on the basis of
 the evidence presented, what the responsible selecting or appointing
 officials would have done if the unwarranted agency actions had not
 occurred.  See American Federation of Government Employees, Local 2811
 and U.S. Government District Office, Social Security Administration, St.
 Paul, Minnesota, 7 FLRA 618, 620 (1982).  In particular, in order to
 require an agency to select a particular employee for a permanent
 promotion, an arbitrator must find on the basis of the reconstruction
 that the responsible selecting official would have selected that
 employee but for the unwarranted actions.  See American Federation of
 Government Employees, Local 3553, AFLO-CIO and Veterans Administration
 Medical Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985).
 
    In this case the Authority concludes that the Arbitrator's award of a
 permanent promotion is contrary to section 7106(a)(2)(C) of the Statute
 and FPM chapter 335.  As noted, the Arbitrator found that the grievant
 "should have been . . . promoted" as the result of the improper oral
 inducements and the improper use of a temporary promotion.  In view of
 the Arbitrator's express acknowledgement that the written documentation
 of the personnel actions confirmed that no promise of permanent
 promotion to the position of planner was to be implied and that the
 planner position had been abolished by the decision to contract out, the
 Arbitrator's finding that the grievant should have been promoted does
 not support the award of a permanent promotion.  The Arbitrator's
 finding does not constitute the necessary finding that but for the
 unwarranted actions, the responsible se