45:0879(81)AR - - Army HQ, Army Garrison Fort Sam Houston, TX and NFFE Local 28 - - 1992 FLRAdec AR - - v45 p879
[ v45 p879 ]
The decision of the Authority follows:
45 FLRA No. 81
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY GARRISON
FORT SAM HOUSTON, TEXAS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
August 12, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Ernest E. Marlatt 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. The Union filed an opposition to the Agency's exception.
The Arbitrator sustained a grievance alleging that the Agency violated the collective bargaining agreement in filling a vacancy. The Arbitrator ordered the Agency to revoke the selection action, repost the vacancy announcement and ensure that eligible employees are informed of the announcement.
For the following reasons, we conclude that the portion of the Arbitrator's award directing the Agency to revoke the selection action is deficient, and we will modify that portion of the award.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency's selection of the only candidate who applied for a WG-9 Maintenance Mechanic position violated Article 7.2 of the parties' collective bargaining agreement and constituted a prohibited personnel practice because the Agency did not follow the prescribed vacancy announcement and distribution procedures.(1) When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator did not set forth the issue before him at arbitration, other than noting the Union's claim that management had "deliberately failed to post the notices in order to restrict applications to [the selectee]." Award at 4. In resolving the grievance, the Arbitrator determined that the selection procedure followed by the Agency violated the parties' agreement because the Agency failed to post the vacancy announcement on the designated bulletin boards and because the Union president did not receive the announcement. In addition, the Arbitrator stated that the selecting official, who was under a duty to determine that the Agency had taken effective steps to comply with the Agency's merit promotion requirements, "knew or should have known," that, because of the failure of other employees to apply, there was an "irregularity in the processing of this promotion." Id. at 6. Based on his findings, the Arbitrator ordered the Agency to: (1) revoke the promotion of the selectee; (2) repost the vacancy announcement; and (3) ensure that other eligible employees are informed of the announcement.
III. Agency's Exception
The Agency disputes only that portion of the remedy which requires the Agency to "revoke the promotion of the selectee pending the re-running of the merit promotion action." Exception at 2. The Agency claims that the revocation of the selection is contrary to Federal Personnel Manual [FPM] chapter 335, Appendix A, section A-4b. Citing to U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937 (1991) and American Federation of State, County and Municipal Employees, Local 2478, AFL-CIO and U.S. Commission on Civil Rights, 26 FLRA 158 (1987) (AFSCME, Local 2478), the Agency maintains that the Authority has held that, under the provisions of the FPM, an incumbent is entitled to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been properly selected. The Agency states that, because the Arbitrator did not make this finding, the award should be modified to delete that portion requiring revocation of the promotion action.
IV. Union's Opposition
The Union maintains that "[n]either the letter nor spirit" of FPM chapter 335, Appendix A, section A-4b gives an employee "any right to retention" in a position where a procedural violation has occurred during the selection action. Opposition at 6. The Union maintains that under the pertinent section of the FPM, the incumbent may be retained in the position "only if, based on a reconstruction of the promotion action, the agency can show" that the incumbent could have been selected under proper selection procedures. Id. The Union maintains that the FPM does not require the agency to leave the incumbent in the position if the agency makes only "a showing of possible selection." Id.
In addition, the Union maintains that the Agency's reliance on FLRA precedent is misplaced, because Authority cases do not quote or cite any "precise language of the FPM which bars revocation of promotions absent certain conditions being met." Id. at 7.
V. Analysis and Conclusions
The Authority consistently has held that where an arbitrator determines that an agency violated proper procedures in filling a vacant position, including procedures contained in a collective bargaining agreement, the incumbent employee is entitled under FPM Chapter 335, Appendix A, section A-4b (2) to be retained in the position pending the corrective action unless it is specifically determined [by the Arbitrator] that the incumbent originally could not have been properly selected. U.S. Department of Defense, Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, 39 FLRA 1225, 1236 (1991) (Delaware National Guard); AFSCME Local 2519, 26 FLRA 158, 161 (1987).In this case, the Arbitrator made no findings that the individual selected for the position in question could not have been selected if the Agency had followed the procedures set out by Article 7.2 of the parties' collective bargaining agreement. Therefore, in the absence of such a finding, the portion of the award requiring the Agency to revoke the selection action is deficient as contrary to FPM chapter 335, Appendix A, section A-4b. Compare U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1189 (1990)(award denying union's request to remove incumbent from a disputed position was based on arbitrator's finding that incumbent could originally have been properly selected and was not inconsistent with FPM chapter 335, Appendix A, section A-4b).
The Arbitrator's award is modified to delete the portion of the award requiring the Agency to revoke the selection action during the rerunning of the sel