Department of the Air Force, Headquarters 443rd Air Base Group (MAC), Altus Air Force Base, Oklahoma and American Federation of Government Employees, Lcoal 2586, Altus, Oklahoma

 2 FLRA No. 36
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS 443RD AIR BASE
 GROUP (MAC), ALTUS AIR FORCE
 BASE, OKLAHOMA
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2586, ALTUS,
 OKLAHOMA
 
                                            FLRC No. 78A-155
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    THIS APPEAL AROSE AS THE RESULT OF AN ARBITRATOR'S AWARD DIRECTING
 THAT THE GRIEVANT BE PROMOTED TO A PARTICULAR POSITION RETROACTIVELY
 WITH BACKPAY.
 
    BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, IT
 APPEARS THE GRIEVANT WAS REPROMOTION ELIGIBLE ENTITLED UNDER THE TERMS
 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, TO "PRIORITY REFERRAL
 FOR NONCOMPETITIVE CONSIDERATION FOR PERMANENT PROMOTION." THE GRIEVANCE
 AROSE WHEN AN EMPLOYEE OTHER THAN THE GRIEVANT WAS SELECTED FOR
 PROMOTION TO THE POSITION OF AUTOMOTIVE EQUIPMENT REPAIR INSPECTOR.  THE
 GRIEVANT ALLEGED THE ACTIVITY HAD NOT GIVEN HIM PROPER NONCOMPETITIVE
 CONSIDERATION FOR THE POSITION AND THAT THE ACTIVITY HAD NOT
 DEMONSTRATED "PERSUASIVE REASONS" FOR NOT SELECTING HIM AS REQUIRED BY
 THE PARTIES' AGREEMENT AND THE CIRCUMSTANCES OF THE CASE.  THE MATTER
 WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR OBSERVED THAT THE AGENCY'S EXPLANATION FOR NOT
 SELECTING THE GRIEVANT FOR PROMOTION, I.E., "(A)NOTHER APPLICANT WAS
 CONSIDERED MORE HIGHLY QUALIFIED," WAS "BASED ON COMPETITIVE
 CONSIDERATIONS WHILE THE GRIEVANT WAS BEING GIVEN PRIORITY REFERRAL FOR
 NONCOMPETITIVE CONSIDERATION." HE THUS CONCLUDED THAT, THROUGH
 ADMINISTRATIVE ERROR, THE GRIEVANT HAD NOT BEEN ACCORDED PROPER
 NONCOMPETITIVE CONSIDERATION FOR PROMOTION IN ACCORDANCE WITH THE
 RELEVANT PROVISION OF THE AGREEMENT.  THE ARBITRATOR ALSO FOUND, IN
 LIGHT OF THE PREPONDERANCE OF THE EVIDENCE, THAT PERSUASIVE REASONS DID
 NOT EXIST FOR NONSELECTING THE GRIEVANT.  AS A REMEDY, THE ARBITRATOR
 ORDERED THE GRIEVANT PROMOTED TO THE POSITION OF AUTOMOTIVE EQUIPMENT
 REPAIR INSPECTOR WITH BACKPAY.
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 COUNCIL, 5 C.F.R. PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE
 PRESENT CASE EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
 APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTIONS WHICH ALLEGED THAT THE AWARD VIOLATES APPLICABLE
 LAW, SPECIFICALLY THE BACK PAY ACT OF 1966, AND APPROPRIATE REGULATION,
 SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  ADDITIONALLY, PURSUANT TO
 SECTION 2411.47(F) OF THE AMENDED RULES, THE AUTHORITY GRANTED THE
 AGENCY'S REQUEST FOR A STAY OF THE AWARD PENDING DETERMINATION OF THE
 APPEAL.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES THAT:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTIONS WHICH ALLEGED THAT
 THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION.  SINCE THE
 CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
 CONCERNING THE MATTERS INVOLVED HEREIN, AND SINCE UNDER SECTION 902(B)
 OF THE CIVIL SERVICE REFORM ACT OF 1978(92 STAT. 1224) THIS APPEAL MUST
 BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
 AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE
 SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE
 MATTERS INVOLVED HEREIN) AN INTERPRETATION OF CIVIL SERVICE COMMISSION
 REGULATIONS AS THEY PERTAINED TO THE ARBITRATOR'S AWARD IN THIS CASE.
 THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANT IN THIS CASE, A REPROMOTION ELIGIBLE, ALLEGED THAT THE
 AGENCY VIOLATED THE AGREEMENT BY PROMOTING ANOTHER EMPLOYEE RATHER THAN
 THE GRIEVANT.  SPECIFICALLY, THE GRIEVANT AND THE UNION ARGUED THAT THE
 AGENCY DID NOT DEMONSTRATE PERSUASIVE REASONS FOR DENYING THE GRIEVANT
 THE PROMOTION AS PROVIDED FOR IN THE AGREEMENT.  THE ARBITRATOR AGREED
 THAT THE REASONS GIVEN WERE NOT PERSUASIVE BUT POINTED OUT THAT HIS
 FINDING IN THAT REGARD WAS MOOT SINCE THE FEDERAL LABOR RELATIONS
 COUNCIL HAS RULED IN EARLIER CASES THAT ALLOWING AN ARBITRATOR TO REVIEW
 MANAGEMENT'S REASONS FOR SELECTING ONE CANDIDATE OVER ANOTHER WOULD
 CONTRAVENE MANAGEMENT'S RIGHT TO MAKE FINAL SELECTIONS FOR PROMOTIONS.
 SEE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MARSHALL SPACE FLIGHT
 CENTER, HUNTSVILLE, ALABAMA, FLRC NO. 76A-130.  HE ALSO FOUND THAT THE
 AGENCY HAD FAILED TO GRANT THE GRIEVANT PROPER SPECIAL CONSIDERATION FOR
 REPROMOTION BECAUSE THE SELECTING OFFICIAL HAD GIVEN AS HIS REASON FOR
 NOT SELECTING THE GRIEVANT HIS OPINION THAT THE GRIEVANT WAS NOT AS WELL
 QUALIFIED AS ANOTHER CANDIDATE.  THUS, THE ARBITRATOR CONCLUDED THAT BY
 ADMINISTRATIVE ERROR, THE GRIEVANT WAS NOT ACCORDED PROPER
 NON-COMPETITIVE CONSIDERATION AS REQUIRED BY THE AGREEMENT.  AS A REMEDY
 THE ARBITRATOR ORDERED THE GRIEVANT PROMOTED TO THE POSITION WITH
 BACK-PAY.
 
    THE ISSUE IN THIS CASE IS WHETHER THE ARBITRATOR'S AWARD OF IMMEDIATE
 PROMOTION WITH BACK-PAY VIOLATES APPLICABLE LAW OR REGULATIONS.  THE
 COMPTROLLER GENERAL, IN A SERIES OF DECISIONS DEALING WITH RETROACTIVE
 PROMOTION, ALL NUMBERED B-180010, AND ISSUED ON AND SUBSEQUENT TO
 OCTOBER 31, 1974, HAS CONSISTENTLY RULED THAT AN AGENCY MAY BE REQUIRED
 TO PROMOTE A PARTICULAR PERSON AND TO ACCORD THAT PERSON BACK-PAY WHEN A
 FINDING HAS BEEN MADE BY AN ARBITRATOR THAT SUCH A PERSON WOULD HAVE
 BEEN PROMOTED AT A PARTICULAR POINT IN TIME BUT FOR, AMONG OTHER THINGS,
 A VIOLATION OF A NON-DISCRETIONARY PROVISION OF A NEGOTIATED AGREEMENT.
 WHILE THE ARBITRATOR FOUND THAT THE AGREEMENT HAD BEEN VIOLATED HE DID
 NOT ADDRESS THE QUESTION OF WHETHER THE GRIEVANT WOULD HAVE BEEN
 PROMOTED BUT FOR THE VIOLATION.  INSTEAD, HE CONCLUDED THAT TO MERELY
 GIVE THE GRIEVANT CONSIDERATION FOR THE NEXT APPROPRIATE VACANCY AS AN
 EXCEPTION TO COMPETITIVE PROCEDURES WOULD LEAVE HIM LESS THAN WHOLE.
 
    IN THE ABSENCE OF A FINDING BY THE ARBITRATOR THAT THE GRIEVANT WOULD
 HAVE BEEN PROMOTED BUT FOR THE VIOLATION, THE REQUIRED PROMOTION AND
 BACK-PAY AWARD IS INAPPROPRIATE.  IN ADDITION, AS THE ARBITRATOR HAS
 HIMSELF POINTED OUT, TO HAVE MADE SUCH A FINDING WOULD HAVE VIOLATED
 REQUIREMENTS IN THE FEDERAL PERSONNEL MANUAL.
 
    SECTION 4-3(C)(2) OF CHAPTER 335, WHICH WAS IN EFFECT AT THE TIME THE
 GRIEVANT FAILED TO RECEIVE PROPER SPECIAL CONSIDERATION, DESCRIBED WHAT
 WAS MEANT BY "SPECIAL CONSIDERATION." THAT SECTION READ AS FOLLOWS:
 
    "(2) SPECIAL CONSIDERATION FOR REPROMOTION.  AN EMPLOYEE DEMOTED
 WITHOUT PERSONAL CAUSE IS ENTITLED TO SPECIAL CONSIDERATION FOR
 REPROMOTION IN THE AGENCY IN WHICH HE WAS DEMOTED.  ALTHOUGH HE IS NOT
 GUARANTEED REPROMOTION, ORDINARILY HE SHOULD BE REPROMOTED WHEN A
 VACANCY OCCURS IN A POSITION AT HIS FORMER GRADE . . . FOR WHICH HE HAS
 DEMONSTRATED THAT HE IS WELL QUALIFIED, UNLESS THERE ARE PERSUASIVE
 REASONS FOR NOT DOING SO.  CONSIDERATION OF AN EMPLOYEE ENTITLED TO
 SPECIAL CONSIDERATION FOR REPROMOTION MUST PRECEDE EFFORTS TO FILL THE
 VACANCY BY OTHER MEANS . . .  IF A SELECTING OFFICIAL CONSIDERS AN
 EMPLOYEE ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION UNDER THIS
 PARAGRAPH BUT DECIDES NOT TO SELECT HIM FOR PROMOTION AND THEN THE
 EMPLOYEE IS CERTIFIED TO THE OFFICIAL AS ONE OF THE BEST QUALIFIED UNDER
 COMPETITIVE PROMOTION PROCEDURES FOR THE SAME POSITION, THE OFFICIAL
 MUST STATE HIS REASONS FOR THE RECORD IF HE DOES NOT THEN SELECT THE
 EMPLOYEE."
 
    IT IS CLEAR THAT THE ABOVE CITED PROVISIONS OF THE FPM STRONGLY
 ENCOURAGED THE REPROMOTION OF "SPECIAL CONSIDERATION" CANDIDATES.  THEY
 DO NOT, HOWEVER, MANDATE THAT SUCH PROMOTION OCCUR.  /1/
 
    THE ARBITRATOR'S DECISION IS BASED ON LANGUAGE IN THE NEGOTIATED
 AGREEMENT WHICH IS SIMILAR IN SOME DEGREE TO THAT CITED ABOVE.  THE
 LANGUAGE, IF INTERPRETED TO MEAN THAT IT REQUIRED THE PROMOTION OF THE
 GRIEVANT IN THE CIRCUMSTANCES OF THIS CASE, WOULD BE IN CONFLICT WITH
 THE FPM.  ANOTHER PERTINENT FEDERAL PERSONNEL MANUAL REQUIREMENT IN
 EFFECT AT THE TIME THE VIOLATION OCCURRED WAS SUBCHAPTER 2, REQUIREMENT
 6, WHICH SETS FORTH THE MANAGEMENT RIGHT TO SELECT OR NON-SELECT.  THIS
 RIGHT (DERIVED FROM RULE 7.1 OF THE CIVIL SERVICE RULES) MEANS THAT
 MANAGEMENT MUST RETAIN THE FREEDOM TO DECIDE, WITHOUT INTERFERENCE,
 WHICH CANDIDATE IT WILL SELECT FORM AMONG THOSE REFERRED FOR A GIVEN
 POSITION UNDER ESTABLISHED PROCEDURES, OR IN FACT, TO MAKE NO SELECTION
 AT ALL.  THE PARTIES, THEREFORE, COULD NOT HAVE APPROPRIATELY AGREED TO
 REQUIRE SELECTION OF ONE CANDIDATE OVER ANOTHER BECAUSE TO DO SO WOULD
 HAVE CONTRAVENED MANAGEMENT'S RIGHT TO MAKE FINAL SELECTION FOR
 PROMOTIONS.
 
    THEREFORE, BASED ON THE CONSIDERATIONS DISCUSSED ABOVE, WE FIND THAT
 IMPLEMENTATION OF THE ARBITRATOR'S AWARD IN THIS CASE WOULD VIOLATE
 BINDING COMMISSION DIRECTIVES AND CONTROLLING COMPTROLLER GENERAL
 DECISIONS.
 
    BASED UPON THE FOREGOING INTERPRETATION BY THE OFFICE OF PERSONNEL
 MANAGEMENT, WE CONCLUDE THAT THE ARBITRATOR'S AWARD OF PROMOTION WITH
 BACKPAY TO THE GRIEVANT, UNDER THE CIRCUMSTANCES OF THIS CASE, VIOLATED
 APPROPRIATE REGULATIONS AND THEREFORE MUST BE SET ASIDE.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 RULES OF PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD.  /2/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN KIRK ARMY HOSPITAL, FLRC NO. 72A-18, THE COUNCIL HAD OCCASION
 TO CITE FPM SUBCHAPTER 4-3(C)(2), AND COMMENTED THAT "WITH RESPECT TO
 THE REPROMOTION RIGHTS OF SUCH EMPLOYEES, THE FPM PLAINLY STATES THAT,
 EVEN THOUGH THEY ARE ENTITLED TO 'SPECIAL CONSIDERATION', THEY ARE 'NOT
 GUARANTEED PROMOTION.' IN OTHER WORDS, A SELECTION DECISION REMAINS TO
 BE MADE BY THE SELECTING OFFICIAL." SEE ALSO COMMISSION OPINIONS IN
 WARREN AIR FORCE BASE, FLRC NO. 75A-127, AND TOOELE ARMY DEPOT, FLRC NO.
 75A-104.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.