Social Security Administration, Chicago Region, Cleveland Ohio District Office, University Circle Branch (Agency) and American Federation of Government Employees, Local 3348 (Union)

[ v56 p1084 ]

56 FLRA No. 192

SOCIAL SECURITY ADMINISTRATION
CHICAGO REGION
CLEVELAND OHIO DISTRICT OFFICE
UNIVERSITY CIRCLE BRANCH
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3348
(Union)

0-AR-3303

_____

DECISION

January 31, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Jonathan Dworkin 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 sustained a grievance alleging that the Agency failed to afford the grievant her priority consideration rights. The Arbitrator ordered that the grievant be appointed to the "next appropriate vacancy," Award at 17, and that the Agency pay the grievant the difference between what she earned in her current position and what she would have earned if "her priority bid [had] been granted." Id. at 18. The Arbitrator also stated that the monetary aspects of the award may be reduced by application of the Back Pay Act. For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant applied for a Claims Representative position, but was not considered for that position because her name was inadvertently left off the Best Qualified (BQ) list. Under Article 26 of the parties' collective bargaining agreement, employees erroneously left out of the selection process are granted priority consideration for future vacancies. [n2]  As summarized by the Arbitrator, an employee entitled to priority consideration is referred to a selecting official before the candidates on the BQ list and is considered noncompetitively, that is, without reference to or comparison with any other candidates.

      When a Claims Representative position subsequently became available, the grievant requested priority consideration, was interviewed, and her application considered before any of those on the BQ list. The grievant was not selected for the position. The selecting official determined that, given the location of the office and the nature of the work to be done, the grievant lacked the qualifications needed to successfully perform as a Claims Representative.

      A grievance was filed claiming that the Agency failed to comply with the grievant's priority consideration rights. The grievant is a Service Representative for the Agency and had been in that classification for approximately seven years at the time the grievance was filed. The grievance was unresolved and was submitted to arbitration.

      According to the Arbitrator, "[t]he issue, as defined by the parties, is whether the Agency violated [the g]rievant's priority rights." Award at 5. The Arbitrator noted that previous arbitral decisions construing priority consideration under the agreement demonstrated "a split of arbitral opinions," with some arbitrators holding that management "cannot bypass a minimally qualified priority bidder," [n3] and some holding that priority consideration "'does not automatically mean selection.'" Id. at 6.

      According to the Arbitrator, a selecting official can tailor a vacancy to office needs and is not required to select a candidate who meets only the basic qualifications in the position description. The Arbitrator stated, in this regard, that "when a supervisor sets higher [ v56 p1085 ] requirements for a job, s/he must have genuine and factually supported reasons" and "cannot use [m]anagement [r]ights carelessly, whimsically, or discriminatorily to disqualify a priority candidate in favor of one who is more desirable." Id. at 10. The Arbitrator found that, once such qualifications are established, an employee with priority consideration rights is entitled to be considered as if he or she is the only applicant and must be selected if he or she meets those qualifications.

      The Arbitrator found that the selecting official in this case did not "add new requirements" to the Claims Representative position description, but, rather, added "dimension to the existing position qualifications" because "augmented skills were required" for the position "due to special needs and an extremely high-volume, difficult workload." Id. Based on Article 26, Section 13 and Authority precedent, the Arbitrator found that the selecting official had the "right to seek a highly qualified candidate and reject any who were just minimally qualified." Id. at 11. According to the Arbitrator, the question became "whether [the g]rievant's skills and abilities were so undeveloped that her job disqualification was factually supported." Id.

      Resolving the parties' dispute as to burden of proof, the Arbitrator found that: (1) the Union had the responsibility of proving that the grievant had "better-than-minimal qualifications" for the Claims Representative position; and (2) the Agency had the burden of demonstrating that it had "sound, meaningful, job-essential reasons to disqualify her." Id.

      The Arbitrator rejected the Agency's claim that the grievant's priority consideration status was a "generous bonus for a clerical error." Id. at 14. The Arbitrator stated that the Agency's argument was "irrelevant" because the grievant's status derives from the parties' collective bargaining agreement. According to the Arbitrator, "[b]ecause of the procedural error, it was [the grievant's] right to exercise her priority consideration and [m]anagement's obligation, if she was qualified, to pick her over better qualified candidates." Id.

      The Arbitrator found that the Agency did not dispute that the grievant's nine years' experience as a Service Representative gave her the basic skills for the Claims Representative position. In addition, the Arbitrator found that the grievant, "in some ways," was "a superior employee." Id. at 12. He noted the grievant's "pristine" record, consistently good evaluations, and service awards, including an award for handling a workload that increased from 40 to 80 interviews a day when the office was shorthanded. The Arbitrator noted that the Agency did not dispute these aspects of the grievant's performance.

      The Arbitrator reviewed the qualifications required by the selecting official for the Claims Representative position. As to interviewing skill, he noted that the grievant knew how to conduct interviews because of her years as a Service Representative. In this regard, however, the Arbitrator noted testimony by the selecting official that: (1) Claims Representative interviews were more "searching" and "less rudimentary;" (2) Claims Representatives must work "independently;" (3) the grievant had an "undesirable," "rejecting" interview style; (4) the grievant sought advice from Claims Representatives during her interviews; and (5) other employees complained that the grievant sought such advice repeatedly and did not retain the advice she was given.

      As to the Agency's obligation to factually justify the grievant's disqualification, the Arbitrator noted that the Agency relied on the testimony of the selecting official and that her testimony was based mostly on what she had heard from others and not on what she had observed. The Arbitrator found that an applicant for a job, especially one with priority consideration, is due information as to why his or her application was denied and that the grievant had never been informed as to the deficiencies identified by the selecting official.

      The Arbitrator further found that, given the selecting official's conclusions as to the grievant's deficiencies, the selecting official, as the grievant's supervisor, had a duty to attempt to correct those deficiencies. According to the Arbitrator, the selecting official's duty in this regard was "crucial" to his view of the grievance. In particular, the Arbitrator found that the selecting official had failed to take such corrective action. The Arbitrator also noted that, in connection with awards given the grievant, the selecting official had praised the grievant's work.

      The Arbitrator concluded that the Agency "failed to establish rational, genuine, and factual reasons for disqualifying [the g]rievant's priority bid." Id. at 16. Consequently, the Arbitrator sustained the grievance and ordered a "make-whole remedy to the extent allowed by law and contract." Id. at 17. Specifically, he ordered that the grievant be granted the next appropriate vacancy and, subject to the Back Pay Act, awarded "the pay difference between her salary and what she would have earned as a Claims Representative beginning on the date the person selected from the BQ List entered the job at issue and ending when [the g]rievant enters the appropriate vacancy." Id. [ v56 p1086 ]

III.     The award does not fail to draw its essence from the collective bargaining agreement.

A.     Positions of the Parties

1.     Agency's Exceptions

      The Agency claims that the Arbitrator "erred" in imposing on it the burden of proving that "it had sound, meaningful, job-essential reasons to disqualify" the grievant. Agency Exceptions at 6. Citing NFFE, Local 1437, 55 FLRA 1166 (1999), the Agency maintains that, by allocating the burden of proof to the Agency, the Arbitrator's award is "inconsistent with . . . contractual language" and "does not draw its essence from the contract[.]" Id. at 10.

      Moreover, the Agency states that the parties' collective bargaining agreement requires that a priority consideration candidate be "eligible" for the vacancy. Id. at 12. The Agency asserts that the Arbitrator found that the selecting official properly determined the qualifications needed for the position, but ignored those qualifications when he found that the grievant should have been selected, thereby requiring the Agency to select an unqualified candidate. The Agency asserts that the Arbitrator's conclusion in this regard fails to draw its essence from the parties' agreement.

      Finally, according to the Agency, the collective bargaining agreement does not require the selecting official to remedy the grievant's deficiencies and to explain her deficiencies to the grievant before she used her priority consideration rights. The Agency maintains that, in this regard, the Arbitrator's award also fails to draw its essence from the agreement.

2.     Union's Opposition

      According to the Union, "[t]he basic flaw inherent in each of the Agency's exceptions is that the Agency has misread the Arbitrator's decision." Opposition at 3. The Union contends that the Agency's exception means, in effect, that "the Agency carries no burden of proof and that it should be allowed to disqualify[] an otherwise qualified priority[]consideration candidate[] without having a sound, meaningful, or job[-]essential reason." Id. at 5. The Union notes, however, that the Arbitrator "imposed a burden on both sides to prove each of their respective interests in the case." Id. at 6. The Union claims that it proved to the Arbitrator's satisfaction that the grievant "met the job's qualifications as management" defined them. Id. at 7. The Union also maintains that, according to the Arbitrator, the Agency's case consisted of hearsay evidence which was insufficient to meet its burden.

      The Union notes that in NFFE Local 1437 the Authority held that the arbitrator was free to determine which party bore the burden of proof and that nothing prevented the arbitrator from imposing that burden on the Union in that case.

B.     Analysis and Conclusions

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Defense, Dependents Schools, 53 FLRA 196, 208 (1997) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990)).

1.     Burden of Proof

      The Agency maintains that the Arbitrator's award fails to draw its essence from the agreement because it imposes a burden of proof on the Agency. However, the Agency points to no provision of the agreement that allocates burdens of proof, particularly in priority consideration cases, to either of the parties. As the Authority stated in NFFE Local 1437, "[i]n the absence of any established burden of proof, the [a]rbitrator [is] free to determine which party [is] required to bear the burden of proof." 55 FLRA at 1171, citing AFGE, Local 2250, 52 FLRA 320, 324 (1996). Thus, in the circumstances of this case, nothing prevented the Arbitrator from placing on the Agency the burden of demonstrating that it had sound, meaningful, job-essential reasons to disqualify the grievant. See id. Consequently, the Agency's exception does not establish that the Arbitrator's allocation of the burden of proof with respect to disqualification of the grievant is implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. See id.

      The Agency clearly misunderstands NFFE Local 1437. The point of that case is not that only the union has the burden of proof in a priority consideration case, but that, in the absence of contractually or legally imposed burdens, the arbitrator has discretion to determine those burdens and the Authority will defer to the arbitrator's determination. [ v56 p1087 ]

2.     Eligibility for the Position

      The Agency also maintains that the award fails to draw its essence from the parties' agreement because the Arbitrator misapplied the contractual requirement that an employee requesting priority consideration be eligible for the position sought. In this regard, the Arbitrator found that, as permitted, the selecting official redefined the existing position qualifications to require augmented skills. The Arbitrator also found, however, that the Agency had not demonstrated that the grievant failed to meet those qualifications. Thus, the Arbitrator did not disturb the selecting official's determination of the qualifications required for the position under the contract, but applied them to the grievant, finding that the Agency had not met its burden with respect to disqualifying her under those qualifications. The Arbitrator's findings that the selecting official failed, in her managerial capacity, to address the grievant's deficiencies, and to inform her of those deficiencies, are used to support his conclusion that the Agency "failed to establish rational, genuine, and factual reasons for disqualifying the grievant's priority bid."

      In this regard as well, the Agency's exception does not establish that the Arbitrator's application of the eligibility requirement is implausible, irrational, or in manifest disregard of the parties' agreement. Consequently, we deny the Agency's essence exceptions.

IV.     The award is not contrary to law and Government-wide regulation.

A.     Positions of the Parties

1.     Agency's Exceptions

      The Agency contends that, by allocating to the Agency the burden of proof as to the nonselection of the grievant, the award is inconsistent with management's right to determine the personnel by which agency operations will be conducted under § 7106(a)(2)(B) of the Statute and with 5 C.F.R. §§ 335.102(a) and 103(b)(4). [n4]  According to the Agency, because an agency's § 7106 rights and the C.F.R. provisions establish that the agency has the authority to select or nonselect an employee, the regulations mean that the agency "need carry no burden of proof in making its selections, whether those selections are competitive or non-competitive." Agency Exceptions at 8.

      The Agency also contends that the award violates management's rights under §§ 7106(a)(2)(A) and 7106(a)(2)(B) and is inconsistent with Government-wide regulations, 5 C.F.R. § 335.102(b) and (c), which require that promotion decisions be based on merit. In this regard, the Agency states that the award abrogates management's right to establish the skills and qualifications needed to perform the work of the position and to evaluate whether an employee meets those qualifications. According to the Agency, the award "requires selection of an unqualified employee contrary to the Statute." Id. at 8, citing United States Naval Ordnance Station, Louisville, Ky. v. FLRA, 818 F.2d 545 (6th Cir. 1987).

      The Agency asserts that, by requiring the Agency "to select an employee who in the judgment of management did not meet the validly determined qualifications for the position[,]" the award excessively interferes with management's rights and is not an appropriate arrangement under § 7106(b)(3). Moreover, the Agency maintains that the award does not meet Prong II of the test established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), because the remedy of selection for the next appropriate vacancy does not reflect what the Agency would have done if management had not violated the agreement.

      Further, the Agency claims that the award is deficient under the Back Pay Act because it orders that the grievant be selected for the next appropriate vacancy and that the Agency pay her "the difference between her pay as a Service Representative and what she would have earned had she been selected as a Claims Representative." Id. at 18. The Agency states that the Authority should modify the award so that it is in compliance with the Back Pay Act.

2.     Union's Opposition

      As to the Agency's management's rights claim, the Union notes that the Arbitrator: (1) made clear that "the Union was required to demonstrate that the grievant possessed the requisite [qualifications];" and (2) "presented, at one time or another, the facts that supported the Union's case." Opposition at 9. According to the Union, the Arbitrator determined that the grievant "was qualified for the position in question [by] comparing her abilities to the criteria management established." Id. at 10. In contrast, the Union contends, "the Agency's case did not measure up as it was found lacking in probative evidentiary facts." Id. at 9-10. The Union also asserts that the Agency has failed to satisfy either Prong I or Prong II of the BEP test for determining whether an award is deficient under management's rights. In this regard, the Union claims that the priority consideration [ v56 p1088 ] provision of the parties' agreement "has repeatedly been held to be a valid provision . . . permitting the remedy of priority consideration for a past agency mistake[]." Id. at 10.

      The Union asserts that the Arbitrator concluded that the grievant "should have been promoted at the time of her non-selection." Id. at 11. According to the Union, the Agency's failure to promote the grievant resulted in "lost wages measured as the difference between the wage amounts between the two positions." Id. The Union claims that the award is not contrary to the Back Pay Act.

B.     Analysis and Conclusions

1.     Applicable Analytical Frameworks

      The Authority reviews the questions of law and Government-wide regulation raised by the award and the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's factual determinations. Id.

      Where the law in question concerns management's rights under § 7106(a) of the Statute, the Authority applies the framework set forth in BEP. Upon a finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If the award provides such a remedy, then the Authority will find that the award satisfies Prong I of the framework and will address Prong II. Under Prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies Prong II.

2.     Burden of Proof

      The Agency contends that the Arbitrator's allocation of the burden of proof to the Agency with respect to its determination that the grievant was not qualified is contrary to 5 C.F.R. Part 335 (Part 335). Part 335 prescribes the requirements governing competitive selection procedures for employees in the competitive service. 5 C.F.R. § 335.103(c)(3)(vi), however, provides agencies with discretion to except "[c]onsideration of a candidate not given proper consideration in a competitive promotion action" from competitive procedures. The parties' collective bargaining agreement provides that priority consideration is a noncompetitive action. See the Appendix to this memo, Article 26, Section 13.A. Thus, the priority consideration procedure involved in this case is not subject to the requirements of Part 335. The Agency's exception in this regard, therefore, is misplaced.

      Additionally, the Agency points to no provision in Part 335 establishing burdens of proof for any party to an action covered thereby. See, e.g., United States Dep't of Justice, Immigration and Naturalization Serv., New York District Office, 42 FLRA 650, 655-56 (1991) (agency contention award contrary to 5 U.S.C. §§ 5596(b) and 7503(a) rejected by Authority because those provisions do not contain language establishing any standard or burden of proof; 5 U.S.C. § 7701(c)(1) and 5 C.F.R. § 1201.56(c), which do contain such standards and burdens, contrasted). By failing to indicate any provision of Part 335 establishing a burden of proof, the Agency has failed, therefore, to demonstrate that the award is deficient as contrary to Part 335. See Dep't of Defense Dependents Schools, Europe, 4 FLRA 412, 414 (1980).

      As to the Agency's argument that the Arbitrator's allocation of the burden of proof to the Agency is contrary to section 7106(a)(2)(B), the Authority has held that the right to determine the personnel by which agency operations are to be conducted under section 7106(a)(2)(B) does not apply to selection actions such the one involved in this case. See ACT, Heartland Chapter, 56 FLRA 236, 243-44 (2000).

      More importantly, and contrary to the Agency's argument, an agency is not necessarily free of any evidentiary burden with respect to the exercise of its rights under § 7106 of the Statute. At a minimum, an agency must support its claim that a given action constitutes the exercise of such a right. See, e.g., NTEU, 41 FLRA 1283, 1287 (1991) (agency burden with respect to demonstrating that designation of duty station is within the right to determine organization); Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 56 FLRA 398, 403-04 (2000) (agency burden with respect to demonstrating that the subject matter of a proposal concerns its internal security practices). Moreover, an agency has a burden to support a determination made pursuant to [ v56 p1089 ] the exercise of a management right. See, e.g., United States Dep't of Health and Human Serv., Family Support Admin., Washington, D.C., 42 FLRA 347 (1991) (Family Support Admin.) (agency failed to provide evidence selectee sufficiently qualified compared to the grievant). Thus, the fact that the Arbitrator required the Agency to support its determination that the grievant was unqualified does not in and of itself affect management's rights under § 7106 of the Statute. Accordingly, it is not necessary to apply the BEP test.

3.     Determination of Qualifications and the Agency's Right to Select under § 7106(a)(2)(C) of the Statute

      The Authority has consistently held that management's rights under § 7106(a) includes the rights to determine the qualifications, skills, and abilities needed to do the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. See, e.g., United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, Va., 56 FLRA 339 (2000) (Member Wasserman dissenting as to other matters) (right to select) (Supervisor of Shipbuilding). [n5]  Consequently, the Authority has held that where an arbitrator has determined the qualifications or selective factors to be used in filling a position, the award affects management's right to select. See Supervisor of Shipbuilding, 56 FLRA at 343; AFGE, Local 31, 49 FLRA 957, 963-64 (1994). [n6]  That is, under Authority precedent, where an arbitrator fails to enforce or comply with the qualifications established by management, the award will be found to affect management's rights. See, e.g., Bureau of Engraving and Printing, 32 FLRA at 536.

      The Authority has stated, as a general principle, that awards based on an arbitrator's differing assessment of employee qualifications affect management's rights. Bureau of Engraving and Printing, 32 FLRA at 536 ("[i]f management has made determinations concerning the qualifications needed for an assignment or the qualifications of employees to be assigned, an arbitrator cannot reject those determinations and apply his or her independent determinations concerning qualifications"). See also United States Naval Ordnance Station, 23 FLRA 671, 673 (1986); Marine Corps Logistics Base, 23 FLRA at 370-71; Customs Serv., Laredo, 17 FLRA at 69. However, in certain limited circumstances, the Authority has upheld awards against management rights exceptions where arbitrators assessed whether an agency properly processed the evidence in the record, for example, whether the agency has ignored contrary evidence, in applying its own qualification criteria.

      Thus, under Authority precedent, arbitrators may not, consistent with management's rights under § 7106, simply disagree with an agency's assessment of employees' qualifications, but they are not bound by assessments that are based on a faulty use of the evidence in the record. Succinctly stated, an arbitrator's review of agency qualification determinations to assess whether the agency, in applying its qualifications standards, properly processed the evidence in the record does not affect management's rights in a manner that is contrary to the Statute. See, e.g., Family Support Administration, 42 FLRA at 352; United States Dep't of the Treasury, Customs Serv., Dallas, Tex., 37 FLRA 1022, 1028 (1990). See also NTEU, Chapter 137, 34 FLRA 650, 656 (1990) (agency provided no support for claim that some employees more qualified than others so as to demonstrate that arbitrator erred in finding employees equally qualified).

      This is precisely the manner in which the Arbitrator in this case reviewed the Agency's claims as to the grievant's qualifications. Specifically, the Arbitrator found that the selecting officials' testimony as to her reasons for rejecting the grievant was based on hearsay and did not take into account the evidence as to the grievant's performance and qualifications. In effect, he found that the Agency failed to properly consider and weigh all the evidence in the record. He also found that the credibility of the selecting official's evaluation of the grievant's qualifications was compromised by that official's managerial failure to observe or address the alleged areas of deficiency in the grievant's performance.

      In sum, the Arbitrator found, applying the qualifications appropriately established by the selecting official, that the selecting official's faulty use of the [ v56 p1090 ] evidence undermined that official's determination that the grievant was unqualified. Such review, under Authority precedent, does not affect management's right to select under section 7106(a)(2)(C) of the Statute and, thus, it is unnecessary to apply the test set forth in BEP. Consequently, we reject the Agency's arguments based on its claim that the grievant was unqualified.

      Moreover, the Authority has consistently held, insofar as exceptions challenging awards requiring the selection of grievants with priority consideration are concerned, that contractual provisions affording such consideration constitute appropriate arrangements under § 7106(b)(3). See, e.g., Social Security Admin., Branch Office, East Liverpool, Oh., 54 FLRA 142, 147-48 (1998) (SSA, East Liverpool); United States Dep't of Health and Human Serv., Social Security Admin., Kansas City, Mo., 37 FLRA 816, 822-23 (1990). In rejecting the Agency's argument that priority consideration was too great a benefit for a procedural error such as leaving the grievant off the BQ list, the Arbitrator clearly demonstrated that he considered Article 26, Section 13 to be an appropriate arrangement. To the extent that the Agency's exceptions challenge the Arbitrator's award requiring that the grievant be selected for the next appropriate vacancy on the ground that the award affects management's right to select by dictating a selection, consistent with Authority precedent, the award satisfies both prongs of BEP. See SSA, East Liverpool, 54 FLRA at 148.

4.     Back Pay Act

      The Arbitrator ordered that the grievant be made whole "to the extent allowed by law" and "subject to" the Back Pay Act. Award at 17. Specifically, he ordered that the grievant be promoted to the next appropriate vacancy, and paid the "difference between her salary and what she would have earned as a Claims Representative beginning on the date the person selected from the BQ List entered the job at issue and ending when [the g]rievant enters the appropriate vacancy." Id. Because he ordered that the specified make whole relief be consistent with the Back Pay Act, we conclude that the Arbitrator's award required that the grievant's promotion, when effectuated, be retroactive to that date. Construed in this manner, the award is not contrary to law. See SSA, Mid-Atlantic Program Service Center, 53 FLRA 956, 965-66 (1997). Accordingly, we deny this exception.

V.     Decision

      The Agency's exceptions are denied. The grievant shall be appointed to the next appropriate Claims Representative position consistent with the terms of the award. Upon appointment to that position, the grievant will receive back pay consistent with the Arbitrator's award.


APPENDIX

1.      Article 26, Section 13 of the parties' collective bargaining agreement provides as follows:

Section 13--Priority Consideration
A.     Definition.     For the purposes of this article, a priority consideration is the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation.
B.     Eligibility.     The following employees will receive priority consideration in accordance with the procedures set forth.
1.     Where the erroneous selection was allowed to stand, those employees who were not properly considered (as identified below) because of the violation will receive priority consideration. An employee is entitled to only one priority consideration for noncompetitive promotion for each instance in which he/she was previously denied proper consideration.
2.     If the action taken to correct an erroneous promotion was to require that the position be vacated, employees who were not promoted or given proper consideration because of the violation (that is, employees in the well-qualified group who were not selected or employees who should have been in this group but were not) will be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action.
3.     The following employees will receive priority consideration in accordance [ v56 p1091 ] with the procedures set forth below:
*a.     Employees who are in a retained grade status under Title VII of the Civil Service Reform Act as a result of action taken in the Administration and who:
(1)     are serving on a full-time basis under career or career-conditional appointments at GS-15 or below, or a wage equivalent, in the competitive service; or
(2)     are serving under excepted career or excepted career-conditional appointments (except that their eligibility for priority selection consideration is limited to positions which can be filled under the same excepted authority as the one used for their appointment); or
(3)     are career or career-conditional employees serving on a part-time basis (except that their eligibility for priority selection consideration is limited to other part-time assignments).
*b.     Employees who were downgraded without personal cause; i.e., where downgrade was not due to misconduct, inefficiency, or at the employees own request. Repromotion may be made to a grade previously held on a nontemporary basis or to an intervening grade. This applies only when the employee was downgraded in the Administration and the repromotion is to a grade formerly held in the Administration.
* Employees under these provisions will receive a priority consideration for each grade for which they were demoted or downgraded.
C.     Processing. The procedures for processing a priority consideration(s) shall be:
1.     Employees will be notified in writing by the authorized management official of entitlement to each priority consideration. Such notice will advise employees that if a vacancy is announced and posted and the employees wish to exercise their priority consideration they should submit the necessary application to the Servicing Personnel Office with written request that they wish priority consideration for the vacancy.
2.     Priority consideration is to be exercised by the selecting officer at the option of the employee for an appropriate vacancy(s). An appropriate vacancy is one for which the employee is interested, is eligible, and which leads to the same grade level of the vacancy for which proper consideration was not given, or for which an employee was denied.
3.     Prior to the referral of eligible candidates to the assessment panel, the name(s) of the employee(s) requesting to exercise priority consideration will be referred to the selecting officer. The selecting officer will make a determination on the requests prior to the assessment panel's evaluation of any other candidates for the vacancy.
4.     The fact that the employee chooses to exercise a priority consideration, does not preclude that employee from also filing an application as specified in the vacancy announcement.
D.     Union Notification. In order to assure compliance with this section, the Union will be furnished statistics on priority considerations granted, exercised, and the results. Statistics will be kept and provided to the Union on a quarterly basis. The Union will also be notified in writing of each individual priority consideration completed.

2.     5 C.F.R. § 335.102 provides, in relevant part, as follows:

§ 335.102 Agency authority to promote, demote, or reassign.
Subject to § 335.103 and, when applicable, to part 319 of this chapter, an agency may:
     (a)     Promote, demote, or reassign a career or career-conditional employee;
     (b)     Reassign an employee serving under a temporary appointment pending establishment of a register to a position to which his original assignment could have been made by the same appointing officer from the same recruiting list under the same order of consideration; [ v56 p1092 ]
     (c)     Promote, demote, or reassign an employee serving under an overseas limited appointment of indefinite duration or an overseas limited term appointment to another position to which an initial appointment under § 301.201, § 301.202, or § 301.203 of this chapter is authorized.

3.     5 U.S.C. § 335.104(b)(4) provides as follows:

§ 335.104 Agency promotion programs.
. . . .
(b)     Merit promotion requirements.
. . . .
(4)     Requirement 4.     Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also proved for management's right to select from other appropriate sources, such as reemployment priority lists, reinstatement, transfer, handicapped, or Veterans Readjustment Act eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals.



Footnote # 1 for 56 FLRA No. 192

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 192

   Relevant portions of Article 26 of the parties' collective bargaining agreement are set forth in the Appendix to this decision.


Footnote # 3 for 56 FLRA No. 192

   The Arbitrator refers to AFGE, Local 2006, 52 FLRA 380 (1996).


Footnote # 4 for 56 FLRA No. 192

   The text of 5 C.F.R. §§ 335.102 and 103(b)(4) is set forth in the Appendix to this decision at 2 and 3, respectively.


Footnote # 5 for 56 FLRA No. 192

   See also United States Dep't of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pa., 51 FLRA 1777 (1996) (right to assign employees); United States Customs Serv., Laredo, Tex., 17 FLRA 68, 69 (1985) (Customs Serv., Laredo) (right to assign work) ("Encompassed within [the right to assign work] is the discretion to establish the particular qualifications needed to perform the work assignment to be done and to exercise judgment in determining whether a particular employee meets those qualifications.")


Footnote # 6 for 56 FLRA No. 192

   See also Bureau of Engraving and Printing, Washington, D.C., 32 FLRA 531, 537 (1988) (where an arbitrator rejects an agency's determination that particular employees are not qualified for a work assignment, rejecting in the process the qualifications established by the agency, the arbitrator's award concerning the assignment affects management's right to assign work); United States Marine Corps