52:0144(16)AR - - Army Corps of Engineers, Huntington District, Huntington, WV and AFGE, Local 3729 - - 1996 FLRAdec AR - - v52 p144

[ v52 p144 ]
The decision of the Authority follows:

52 FLRA No. 16











LOCAL 3729





September 12, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator J. Scott Tharp 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency's failure to timely respond to the grievance challenging the Agency's failure to consider the grievant's application for a position violated the time limits for processing grievances under the parties' collective bargaining agreement. To remedy this violation, the Arbitrator ordered the Agency to select the aggrieved employee for the position.

For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute because it is contrary to law, and we set it aside.

II. Background and Arbitrator's Award

The grievant applied for the position of Lock and Dam Operator. As a result of a "mixup" by the Agency, the grievant's application did not reach the Agency's Human Resources Office until after the completion of the selection process and it was not considered. Award at 1. The grievance sought the grievant's placement in the position. The Agency was one day late in filing its answer at step 3 of the negotiated grievance procedure. Consequently, the Agency offered to settle the dispute by providing the grievant priority consideration for the "next appropriate vacancy[.]" Id. at 2. The grievant declined the offer to settle the dispute. When the grievance could not be resolved, it was submitted to arbitration where the Arbitrator framed the issue as follows:

Did Employer's untimely response at Step 3 of the grievance procedure violate the collective bargaining agreement, and if so, what is the remedy?


The Arbitrator found that the Agency had failed to comply with the contractual time limits for rendering a decision at step 3 of the negotiated grievance procedure as set forth in Article 19, Section 4 of the parties' collective bargaining agreement.(1)

He concluded that to remedy the violation of Article 19, Section 4, he was required by Article 19, Section 9 to sustain the grievance. Thus, he directed the Agency to select the grievant for the position of Lock and Dam Operator. He found that the grievant was qualified for that position, although he acknowledged Agency testimony that two other applicants were more qualified, including the employee chosen to fill the position. He rejected the Agency's argument that by sustaining the grievance that sought the placement of the grievant in the Lock and Dam Operator position, the award interfered with management's right to assign work. He stated that he was enforcing the "clear mandate" of the parties' agreement, which requires that a grievance be sustained if the Agency does not meet the time requirements established by Article 19. Id. at 8.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award interferes with management's right to select under section 7106(a)(2)(C) of the Statute. The Agency asserts that in order for an arbitrator to direct an agency to select an employee for a position, the award must result from the enforcement of a contractual arrangement for employees adversely affected by the exercise of management's rights as set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). The Agency maintains that that test is not applicable to this case because Article 19 is not an arrangement for employees adversely affected by the exercise of management's rights, but, rather, is procedural in nature and "[a]ddress[es] [the] effects stemming from the failure to meet certain negotiated time restrictions" under the grievance procedure. Exceptions at 5.

The Agency also asserts that, in order for an arbitrator to direct an Agency to select a grievant for a position, the arbitrator must find a direct connection between an improper agency action and the failure of the grievant to be selected. The Agency maintains that the Arbitrator made no such finding here. In addition, the Agency argues that its untimely response at step 3 of the grievance procedure did not result in the Agency failing to select the grievant.

B. Union's Opposition

The Union contends that the Agency's exceptions should be denied because the Agency fails to establish that the award is deficient.

IV. Analysis and Conclusions

We conclude that the award constitutes an enforcement of Article 19 of the parties' agreement in a manner that affects management's right under section 7106(a)(2)(C) of the Statute to make the actual selection for the appointment. See, for example, Department of Defense v. FLRA, 659 F.2d 1140, 1162 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (court held that the intent of section 7106(a)(2)(C) was, among other things, to ensure management's right to make the actual selection for appointments); Department of Agriculture, Food and Nutrition Service and National Treasury Employees Union, 35 FLRA 1154, 1159-60 (1990) ("Under competitive selection procedures, management must maintain the right and discretion to make the actual selection from the promotion certificate or to make the appointment from any appropriate source.") (citation omitted).

In resolving whether an arbitral remedy enforcing a contractual provision is deficient as inconsistent with a management right, the Authority will determine whether such remedy reflects a reconstruction of what management would have done if it had acted properly. U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (VA Birmingham). In VA, Birmingham, the Authority concluded that the award constituted the reconstruction of what the agency would have done had it not violated a provision of the parties' agreement that constituted a contractual arrangement under Customs Service. Accordingly, the Authority concluded that the award was not contrary to management's rights.

Applying VA, Birmingham here, it is clear that the award does not constitute a reconstruction of what the Agency would have done ha