26:0250(31)AR - AFGE, Local 1960, and Navy, Development Center -- 1987 FLRAdec AR



[ v26 p250 ]
26:0250(31)AR
The decision of the Authority follows:


 26 FLRA No. 31
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1960
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 DEVELOPMENT CENTER
 Activity
 
                                            Case No. 0-AR-1221
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator C. Bette Wimbish filed by the Department of the Navy (Agency)
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute (the Statute) and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    According to the Arbitrator's award, the grievant was assigned to
 perform duties as supervisor of the Graphics Section in October 1983.
 He performed those duties until January 1986.  However, he was never
 officially detailed or promoted.  During most of the time the grievant
 performed the duties, there was no position description for a position
 of graphics supervisor.
 
    In July 1985 the Activity established a position of Illustration
 Supervisor, GS-12 which was not filled.  In December 1985, the Activity
 established and advertised a position of Illustration Supervisor, GS-11
 with potential to GS-12.  The grievant applied for this position but
 another employee was selected.  In his grievance, the grievant contended
 that he should have been detailed to a supervisory position and received
 pay for performing supervisory duties and that he should have been
 retained in the position after it was officially established.  The
 Activity contended that the GS-11 position was a new position which was
 properly filled by selection of a person other than the grievant.
 
    The Arbitrator found that the grievant had served in a supervisory
 capacity for the time in question and that there was official
 recognition by the Activity of this fact.  She also found that although
 the grievant was actually the supervisor of the Graphics Section during
 that time, there had never been a position description for a supervisory
 position and he had never been detailed or temporarily promoted to a
 supervisory position, in violation of the collective bargaining
 agreement provision governing details.  The Arbitrator ruled that the
 Activity had established a past practice of assigning supervisory duties
 without using a position description and that the grievant had the right
 to believe that he was promoted noncompetitively to a GS-12 supervisory
 position.  As her award, she granted the grievance and ordered that the
 grievant resume supervisory duties and that he be given backpay for two
 years and three months (from October 1983 to January 1986) at the GS-12
 rate.  She also ordered that the promotion of the person selected for
 the GS-11 position should be treated as a detail of that person.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Agency contends that the award is contrary
 to section 7106(a)(2)(C) of the Statute and FPM Chapter 335, subchapter
 1-4, Requirement 4, because it violates management's right to select
 from any available source when filling positions.  The Agency contends
 that the Arbitrator failed to make the required finding that the
 grievant would have been selected for the announced supervisory position
 if the Activity had not acted improperly and maintains that the mere
 finding that the grievant had reason to believe that he was promoted
 noncompetitively is not a sufficient basis for depriving management of
 its right to select.  The Agency also contends that the finding of a
 past practice by the Arbitrator does not provide a basis for interfering
 with management's right to select.  The Union contends in its opposition
 that the Activity exercised its right to select when it assigned
 supervisory duties to the grievant in October 1983.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency that the Arbitrator's order that the
 grievant resume supervisory duties with a promotion to GS-12 is contrary
 to section 7106(a)(2)(C) of the Statute and FPM Chapter 335.  The
 Authority has consistently 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. Naval Ordnance
 Station, Louisville, Kentucky and International Association of
 Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA No. 36
 (1986).  It is necessary for arbitrators to reconstruct what the
 responsible selecting official would have done if the unwarranted agency
 action had not occurred and to find on the basis of that reconstruction
 that the responsible selection official would have selected the grievant
 but for the unwarranted actions.  Id.  The Authority has also held that
 no past practice may be established regarding the rights enumerated in
 section 7106(a) that would bind management to the particular manner in
 which it had exercised those rights in the past so as to preclude
 management from otherwise exercising those rights.  National Association
 of Government Employees, Local R1-25 and Brockton/West Roxbury V.A.
 Medical Center, 21 FLRA No. 16 (1986).
 
    In this case the Arbitrator did not find based on a reconstruction of
 the promotion action that the grievant would have been promoted to the
 announced supervisory position.  Rather, she only found that the
 grievant should have been promoted because he had a reasonable
 expectation of noncompetitive promotion based on the past practice in
 which supervisory duties and training were given to employees without
 competitive promotion to an officially classified supervisory position.
 This does not constitute the necessary finding that the grievant would
 have been selected for the position of Illustration Supervisor, GS-11 or
 GS-12, for which the Activity selected another employee.  Further, the
 Arbitrator cannot use the past practice of assigning supervisory duties
 as a basis for finding that the grievant would have been selected for
 the position.  The award is deficient in this regard and must be
 modified.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the award is contrary to section
 7106(a)(2)(B) of the Statute.  Specifically, the Agency contends that by
 ordering the Activity to "resume (assigning to the grievant) the duties
 for which he was trained," the Arbitrator's award violates management's
 right to assign work.  The Union disputes this contention and maintains
 that the Activity exercised its right to assign work when it followed
 the practice of assigning supervisory duties without establishing an
 officially classified supervisory position.
 
                       B.  Analysis and Conclusions
 
    We find that to the extent that the award requires the Activity to
 restore to the grievant those supervisory duties which he previously
 performed, it is contrary to the right to assign work under section
 7106(a)(2)(B). The Authority has held consistently that arbitration
 awards may not interfere with or deny the authority of an agency to
 exercise its rights under section 7106 or substitute the judgment of the
 arbitrator for that of the agency in the exercise of those rights.  For
 example, American Federation of Government Employees, Local 3258 and
 U.S. Department of Housing and Urban Development, 21 FLRA No. 56 (1986).
  In this case, the part of the award which requires "that the (g)rievant
 should resume the duties for which he was trained" restricts the right
 of the Activity to assign the grievant other duties and substitutes the
 judgment of the Arbitrator for that of the Activity as to which duties
 will be assigned to the grievant.  Therefore the award is deficient
 under section 7106(a)(2)(B).
 
                            V.  THIRD EXCEPTION
 
                              A. Contentions
 
    The Agency contends that the award is contrary to the Back Pay Act, 5
 U.S.C. Section 5596, because it requires backpay for the performance of
 supervisory duties for two years and three months, which includes a time
 prior to the official establishment of a supervisory position.  The
 Agency concedes that the grievant could be entitled to backpay from July
 24, 1985, when a supervisory position was established and classified,
 until January 12, 1986, when another employee was selected to fill the
 position.  The Union argues that a supervisory position was in existence
 prior to that time and the grievant was entitled to backpay for filling
 that supervisory position.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency that the award is contrary to the Back Pay
 Act.  The record in the case shows, contrary to the Union's contention,
 that a supervisory position was not established until July 24, 1985.
 The Arbitrator found that the grievant was performing supervisory duties
 as the result of longstanding past practice and that he was never
 detailed to an official position.  The Authority has held that under the
 terms of the Back Pay Act and under the U.S. Supreme Court's decision in
 United States v. Testan, 424 U.S. 392 (1976), a retroactive promotion
 with backpay to a position is not authorized for any period before the
 position is actually classified.  See Service Employees International
 Union and Veterans Administration Medical Center, 10 FLRA 49 (1982).
 Therefore, the most that the Arbitrator could have awarded the grievant
 in this case was a retroactive temporary promotion with backpay at the
 GS-12 rate for the period July 24, 1985 to January 12, 1986.  To the
 extent that the award provides otherwise, it is deficient.
 
                           VI.  FOURTH EXCEPTION
 
                              A.  Contentions
 
    The Agency excepts to that portion of the award which directs that
 "(t)he 'promotion' of (the employee selected for the Illustration
 Supervisor, GS-11 position) should be treated as a detail with
 appropriate forms entered into his official personnel file." The Agency
 maintains that this portion of the award is contrary to the FPM because
 it requires the person selected to be removed from the position without
 a finding by the Arbitrator that the person could not properly have been
 selected for the position.  The Union contends that if the Activity had
 followed correct procedures the grievant would have been selected and
 the other employee would not have qualified for the position.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency.  The Authority has held in cases such as
 this one that the incumbent employee is entitled under FPM Chapter 335,
 appendix A, section A-4b to be retained in the position pending
 corrective action unless it is specifically determined that the
 incumbent could not originally have been properly selected.  American
 Federation of Government Employees, Local 1546 and Sharpe Army Depot,
 Department of the Army, Lathrop, California, 16 FLRA 1122 (1984).  In
 this case, the Arbitrator made no finding that the person selected for
 the position of Illustrator Supervisor, GS-11 could not have been
 selected if the Activity had followed proper procedures.  The Arbitrator
 found only that the grievant had the right to believe that he had been
 promoted based on performance of supervisory duties under the past
 practice, which we have held to be an insufficient basis for ordering
 that he be selected.  Therefore, in the absence of the required showing
 that the selection of the person chosen for the GS-11 position was
 defective, the award is deficient to this extent as contrary to FPM
 Chapter 335, appendix A, section A-4.
 
                              VII.  DECISION
 
    For the above reasons, the Arbitrator's award is modified to read as
 follows:
 
          The grievance is granted.  The grievant shall be given a
       retroactive temporary promotion with backpay to the position of
       Illustration Supervisor, GS-12 for the period July 24, 1985 to
       January 12, 1986.  /*/
 
    Issued, Washington, D.C., March 17, 1987.
                                       /s/ Jerry