28:0753(95)AR - AFGE, LOCAL 2302 VS ARMY, FORT KNOX

[ v28 p753 ]
The decision of the Authority follows:

28 FLRA NO. 95






Case No. 0-AR-1354


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator W. Thomas Mulhall filed by the Department of the Army (Agency) and by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. 1 The Agency filed an opposition to the Union's exception.

II. Background and Arbitrator's Award

The grievance in this case concerned the supervisor's decision to appoint the grievant to the position of Boiler Plant Operator, WG-10, and the subsequent reversal of that decision following review by a higher level management official. 

The grievant was selected for the boiler plant operator position by the supervisor of the boiler plant section. The selection was reviewed by the chief of the Utilities and Structure Division. The chief determined that the grievant did not appear to be as qualified as the other applicants and discussed his finding with the supervisor, who informed him that the selection was based on the grievant's "long-standing federal government seniority." Award at 5. The chief instructed the supervisor to reconsider the selection, using only "appropriate, recognized job related factors." Award at 5. On reconsideration, the supervisor changed his decision and selected another candidate for the position. The grievant filed a grievance on the matter which was submitted to arbitration.

The Arbitrator framed the issue as follows:

Did the Agency violate the LMA (labor management agreement) by its review and reversal of the decision to appoint the grievant to the position for which he applied? If so, what is the proper remedy?

The Arbitrator noted that the person selected had extensive training and experience with high pressure boilers while the grievant did not, and that the selectee had more experience with boiler operations than the grievant. The Arbitrator found, therefore, that the reevaluation of the selection in this case was justified because the supervisor's decision to select the grievant instead of another candidate was improperly based on seniority rather than job-related factors as required by U.S. Army Armor Center (USAAC) Regulation 690-5 which was incorporated into the parties' agreement.

The Arbitrator agreed with the Union that the chief did not have the authority to review the final selection for the vacancy under USAAC Regulation 690-5 or the parties' agreement, which required that merit promotion actions be in accordance with that regulation, because he was not a commander, director, or unit chief. The Arbitrator noted that this determination did not prevent the chief from reviewing promotion selections in accordance with an appropriate chain of command as outlined in the regulation. However, the Arbitrator concluded that the Agency's violation in this manner was "de minimis" and did not entitle the grievant to the relief he requested.

As his award, the Arbitrator denied the grievance in part and granted it in part. Specifically, the Arbitrator did not award the grievant the boiler plant operator position. However, he did order the Activity to comply with the procedures set forth in USAAC Regulation 690-5 in all future cases. The Arbitrator stated in particular that "(any) action which is taken to reverse or further review the selection process must issue from either a commander, director or unit chief." Award at 15.

III. Union Exception

A. Contentions

The Union contends that the Arbitrator failed to