25:0167(11)CA - Army, Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 -- 1987 FLRAdec CA



[ v25 p167 ]
25:0167(11)CA
The decision of the Authority follows:


 25 FLRA No. 11
 
 DEPARTMENT OF THE ARMY, 
 U.S. ARMY MISSILE COMMAND, 
 REDSTONE ARSENAL, ALABAMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 1858, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-60204
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority based on the
 Regional Director's "Order Transferring Case to the Authority" is
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations.  The complaint alleged that the Respondent refused to
 comply with a final and binding arbitrator's award in violation of
 section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute).
 
                              II.  Background
 
    As stipulated by the parties, on February 11, 1985, Arbitrator
 William D. Ferguson issued an opinion and award concerning a grievance
 under a collective bargaining agreement between American Federation of
 Government Employees, Local 1858 (the Union) and the Department of the
 Army, U.S. Army Missile Command, Redstone Arsenal, Alabama (the
 Respondent).  According to the arbitrator, the grievant was one of two
 GS-6 secretaries in a project office, and the grievance arose as a
 result of an attempt, rejected by the Respondent's personnel office, to
 noncompetitively promote the other secretary to GS-7.  The grievant was
 subsequently reassigned because of an anticipated reduction-in-force and
 the promotion to GS-7 was announced competitively.  Although the
 grievant was one of the final candidates for the promotion, the other
 secretary in the project office was selected for the competitive
 promotion.
 
    The arbitrator determined that the Respondent had violated the
 parties' agreement by failing to inform the Union of the anticipated
 reduction-in-force that had resulted in the reassignment of the
 grievant.  The arbitrator also determined that the Respondent violated
 the parties' agreement by reassigning the grievant because the
 reassignment was for the purpose of preventing her from being promoted.
 As his award, the arbitrator ruled that the grievant was entitled, at
 her request, to be promoted the same as the other project office
 secretary with backpay.
 
    The Respondent filed exceptions to the arbitrator's award of a
 retroactive promotion with backpay essentially contending that the award
 was contrary to the Back Pay Act, 5 U.S.C. Section 5596.  In U.S. Army
 Missile Command, Redstone Arsenal and American Federation of Government
 Employees, Local 1858, 19 FLRA No. 38 (1985), the Authority agreed that
 the award was deficient as contrary to the Back Pay Act because the
 arbitrator had not made the requisite finding that but for the
 unwarranted reassignment, the grievant otherwise definitely would have
 been promoted.  Accordingly, the Authority modified the award by
 striking all provisions for retroactive promotion and backpay.
 
                       III.  Position of the Parties
 
    The General Counsel's position is essentially that the award as
 modified by the Authority provides for the prospective promotion of the
 grievant.  Specifically, the General Counsel argues that because the
 Authority modified the award to strike its provisions for a retroactive
 promotion instead of setting the award aside, the Authority left
 standing the prospective portion of the ordered promotion of the
 grievant.  Consequently, the General Counsel contends that by refusing
 to promote the grievant, the Respondent has refused to comply with the
 modified award in violation of section 7116(a)(1), (5), and (8) of the
 Statute.  The General Counsel further contends that because the
 Respondent never raised the prospective aspects of the promotion ordered
 by the arbitrator in its exceptions to the Authority, the Respondent is
 now barred by section 7122(b) from challenging the prospective promotion
 of the grievant.
 
    The Respondent's position is that it has not refused to comply with
 the arbitrator's award.  The Respondent argues that the Authority
 properly modified the award to strike all its provisions for retroactive
 promotion and backpay and that it has complied with the award as
 modified by the Authority.  The Respondent further argues that any
 interpretation of the award as modified to provide for a prospective
 promotion must be rejected because the findings necessary for a
 prospective promotion are the same as for a retroactive promotion.
 
                       IV.  Analysis and Conclusions
 
    We find that the award as modified by the Authority's decision in
 U.S. Army Missile Command does not provide for a prospective promotion
 of the grievant.  Consequently, we conclude that the Respondent has not
 failed or refused to comply with the final and binding arbitration award
 and has not violated section 7116(a)(1), (5), and (8) of the Statute as
 alleged.
 
    In our view the only promotion ordered by the arbitrator was a
 retroactive promotion with backpay.  In agreement with the Agency's
 exception, the Authority found that the award by the arbitrator of a
 retroactive promotion was deficient as contrary to the Back Pay Act
 because the arbitrator had failed to make the necessary finding that but
 for the unwarranted reassignment of the grievant, the grievant otherwise
 definitely would have been promoted.  The Authority modified the award
 "to strike all provisions for retroactive promotion and backpay." We
 reject the argument of the General Counsel that because the Authority
 modified the award rather than set the award aside, the Authority left
 standing a prospective portion of the ordered promotion of the grievant.
  The award was modified rather than set aside because no basis was
 provided in the exceptions for finding deficient the arbitrator's
 determinations that the Activity had violated the parties' collective
 bargaining agreement.  However, the arbitrator's sole remedy for those
 violations was set aside in its entirety.
 
    We further find that the General Counsel's asserted interpretation of
 the Authority's decision and the award as modified is inconsistent with
 established Authority precedent.  We have consistently held that the
 same finding that must be made by an arbitrator under the Back Pay Act
 in order to authorize an award of a retroactive promotion must also be
 made by an arbitrator in order to award a prospective promotion
 consistent with section 7106(a)(2)(C) of the Statute.  Section
 7106(a)(2)(C) essentially reserves to management the right to make the
 actual substantive determination to select or not to select employees
 for promotion.  This right may be constrained and an agency ordered by
 an arbitrator to select a particular employee for promotion only if the
 arbitrator finds that the employee was affected by improper agency
 action that directly resulted in the failure of the employee to be
 promoted when the employee otherwise would have been.  For example,
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