28:0578(71)AR - AFGE, LOCAL 1626 VS DOD, DLA
[ v28 p578 ]
The decision of the Authority follows:
28 FLRA NO. 71
DEFENSE LOGISTICS AGENCY, DEPARTMENT OF DEFENSE, BATTLE CREEK, MICHIGAN Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1626 Union Case No. 0-AR-1361
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Nathan Lipson filed by the 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
The parties submitted to arbitration the issue of whether the Activity violated the collective bargaining agreement by failing to interview the grievant for a specified position vacancy. The Arbitrator found that the Activity had violated the agreement. As a remedy, he ordered the grievant promoted to the next equivalent position that becomes available because he found that the grievant "might have been selected" if she had been interviewed.
The Agency contends that the award is contrary to law. Specifically, the Agency argues that the award violates management's right to select under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 4.
IV. Analysis and Conclusions
We conclude that the Arbitrator's award ordering that the grievant be promoted to the next available position equivalent to one the Activity filled improperly 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. For example, U.S. Naval Ordnance Station, Louisville, Kentucky and International Association of Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA No. 36 (1986). In this case, we conclude that the Arbitrator failed to make the necessary finding. The Arbitrator's findings that the Activity violated the collective bargaining agreement by failing to interview the grievant and that if she had been interviewed, "she . . . might have been selected" do not constitute the necessary finding that but for the unwarranted action (failing to interview the grievant), the grievant would have been selected for promotion.
Accordingly, the award is deficient and is modified to provide an appropriate legal remedy for the violation of the collective bargaining agreement found by the Arbitrator by substituting the following for the award's second sentence: