American Federation of Government Employees, Local 2955 and The Adjutant General of Iowa, The National Guard of Iowa 

 2 FLRA No. 41
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2955
 
 and
 
 THE ADJUTANT GENERAL OF IOWA,
 THE NATIONAL GUARD OF IOWA
 
                                            FLRC No. 78A-138
 
                 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 RETROACTIVELY WITH BACKPAY.
 
    BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, IT
 APPEARS THAT THIS MATTER AROSE WHEN THE GRIEVANT, A REPROMOTION
 ELIGIBLE, ALLEGED THAT THE ACTIVITY HAD VIOLATED THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT WHEN ON SEVERAL OCCASIONS OPPORTUNITIES FOR
 PROMOTION AROSE BUT HE WAS NOT GIVEN SPECIAL CONSIDERATION FOR PROMOTION
 TO THOSE POSITIONS AS REQUIRED BY THE AGREEMENT.  HE FILED A GRIEVANCE,
 AND IN THE ENSUING STEPS OF THE GRIEVANCE PROCEDURE THE ACTIVITY
 ADMITTED THAT, IN AT LEAST ONE INSTANCE, ADMINISTRATIVE OVERSIGHT
 RESULTED IN THE GRIEVANT'S NAME NOT BEING REFERRED FOR SPECIAL
 CONSIDERATION.  THE ACTIVITY ASSURED THE GRIEVANT THAT HE WOULD RECEIVE
 SPECIAL CONSIDERATION IN THE FUTURE.  HOWEVER, THE GRIEVANT PURSUED HIS
 GRIEVANCE AND IT WAS ULTIMATELY SUBMITTED ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR CONCLUDED THAT THE "GRIEVANT HAS . . . BEEN WRONGED,
 EVEN IF ONLY BY OVERSIGHT." AS A REMEDY, THE ARBITRATOR FOUND THE
 GRIEVANT ENTITLED TO IMMEDIATE PROMOTION, WITH BACKPAY, TO ANY VACANCY
 FOR WHICH HE WAS QUALIFIED OR COULD BE TRAINED, AND WHICH HAD OCCURRED
 SINCE THE DATE OF THE EXECUTION OF THE NEGOTIATED AGREEMENT.
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATION 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 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE
 REGULATION, NAMELY THE FEDERAL PERSONNEL MANUAL.  IN ADDITION, 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 EXCEPTION WHICH ALLEGED THAT THE
 AWARD GRANTING THE GRIEVANT RETROACTIVE PROMOTION WITH BACKPAY VIOLATED
 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 AN
 
    EXISTING LABOR-MANAGEMENT AGREEMENT WHEN HE WAS NOT GIVEN SPECIAL
 CONSIDERATION IN THE FILLING
 
    OF SEVERAL POSITIONS.  DURING THE PROCESSING OF THE GRIEVANCE, THE
 AGENCY ADMITTED TO AN
 
    ADMINISTRATIVE ERROR AND, AS A REMEDY, NOTIFIED THE GRIEVANT THAT HE
 WOULD RECEIVE SPECIAL
 
    CONSIDERATION FOR FUTURE VACANCIES FOR WHICH HE QUALIFIED.  HOWEVER,
 THE GRIEVANCE CONTINUED
 
    TO ARBITRATION.  THE ARBITRATOR RULED THAT THE GRIEVANT HAD BEEN
 "WRONGED" AND ORDERED THE
 
    GRIEVANT IMMEDIATELY PROMOTED WITH BACK-PAY TO ANY VACANCY FOR WHICH
 HE WAS QUALIFIED OR COULD
 
    HAVE BEEN TRAINED, AND WHICH HAD OCCURRED SINCE THE DATE OF THE
 EXECUTION OF THE NEGOTIATED
 
    AGREEMENT.
 
    TWO PROVISIONS OF FEDERAL PERSONNEL MANUAL CHAPTER 335 BEAR ON THE
 AWARD.  BOTH WERE IN
 
    EFFECT AT THE TIME THE GRIEVANT FAILED TO RECEIVE PROPER
 CONSIDERATION AND AT THE TIME OF THE
 
    ARBITRATOR'S AWARD.  THE FIRST PROVISION, REQUIREMENT 1 OF SUBCHAPTER
 2, REQUIRED AGENCIES TO
 
    GIVE NON-COMPETITIVE CONSIDERATION TO SPECIAL CONSIDERATION
 CANDIDATES (LIKE THE GRIEVANT)
 
    PRIOR TO FILLING VACANCIES UNDER COMPETITIVE PROCEDURES.
 
    THE SECOND PROVISION, SECTION 4-3(C)(2) OF CHAPTER 335, DESCRIBED
 WHAT IS 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 DID NOT, HOWEVER,
 MANDATE THAT SUCH REPROMOTION
 
    OCCUR.  /1/ THEREFORE, THIS CHAPTER MAY NOT BE THE BASIS FOR AN
 ARBITRATOR'S AWARD THAT A
 
    PARTICULAR PERSON BE PROMOTED.  THE LANGUAGE IN THE NEGOTIATED
 AGREEMENT REQUIRES THE GIVING
 
    OF SPECIAL CONSIDERATION FOR REPROMOTION "IN ACCORDANCE WITH THE
 FPM." HOWEVER, THE FPM, AS
 
    QUOTED ABOVE, IS NOT A BASIS FOR REQUIRING THE PROMOTION OF A
 PARTICULAR INDIVIDUAL IN
 
    CIRCUMSTANCES SUCH AS THESE.
 
    ALTHOUGH THE ARBITRATOR DID NOT DISCUSS THE AGREEMENT PROVISION
 QUOTED IN HIS DECISION,
 
    OTHER THAN TO DETERMINE THAT IT APPLIED TO THE GRIEVANCE, IT APPEARS
 HE ASSUMED THAT IT
 
    REQUIRED PROMOTION OF THE GRIEVANT UNLESS THERE WAS A "JUST CAUSE"
 REASON FOR NOT SELECTING
 
    HIM.  PERTINENT HERE IS FPM CHAPTER 335, 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 FROM 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 SUBJECT MANAGEMENT'S REASONS FOR
 SELECTING ONE CANDIDATE OVER
 
    ANOTHER TO REVIEW BY A THIRD PARTY BECAUSE IT WOULD CONTRAVENE
 MANAGEMENT'S RIGHT TO MAKE
 
    FINAL SELECTIONS FOR PROMOTIONS. HENCE, THE ARBITRATOR'S APPARENT
 INTERPRETATION OF THE
 
    PARTIES' INTENTIONS IS MOOT SINCE THE EMBODIMENT OF SUCH AN INTENTION
 IN THE NEGOTIATED
 
    AGREEMENT VIOLATES CIVIL SERVICE RULES AND INSTRUCTIONS.
 
    THE ARBITRATOR AWARDED THE GRIEVANT RETROACTIVE PROMOTION WITH BACK
 PAY.  THE ONLY
 
    CIRCUMSTANCE UNDER WHICH AN AGENCY MAY BE REQUIRED TO PROMOTE A
 PARTICULAR PERSON AND TO
 
    ACCORD THAT PERSON BACK PAY IS WHEN A FINDING HAS BEEN MADE BY AN
 ARBITRATOR OR OTHER
 
    COMPETENT AUTHORITY THAT SUCH PERSON WOULD HAVE BEEN PROMOTED AT A
 PARTICULAR POINT IN TIME
 
    BUT FOR AN ADMINISTRATIVE ERROR, A VIOLATION OF A COMMISSION OR
 AGENCY REGULATION OR OF A
 
    PROVISION OF A NEGOTIATED AGREEMENT.  THIS PRINCIPLE HAS BEEN SET
 FORTH IN A SERIES OF
 
    COMPTROLLER GENERAL DECISIONS DEALING WITH RETROACTIVE PROMOTION, ALL
 NUMBERED B-180010, AND
 
    ISSUED ON AND SUBSEQUENT TO OCTOBER 31, 1974.  THE ARBITRATOR IN THIS
 CASE DID NOT ADDRESS THE
 
    QUESTION OF WHETHER THE GRIEVANT WOULD HAVE BEEN PROMOTED BUT FOR THE
 VIOLATION.  IF HE
 
    ASSUMED THIS TO BE THE CASE, HIS ASSUMPTION WAS BASED ON AN APPARENT
 INTERPRETATION OF THESE
 
    DOCUMENTS THAT IS VIOLATIVE OF CIVIL SERVICE COMMISSION REQUIREMENTS
 AND HENCE, UNENFORCEABLE.
 
    THEREFORE, BASED ON THE CONSIDERATIONS DISCUSSED ABOVE, WE FIND THAT
 IMPLEMENTATION OF THE
 
    ARBITRATOR'S AWARD IN THIS CASE WOULD VIOLATE COMMISSION INSTRUCTIONS
 AND CONTROLLING
 
    COMPTROLLER GENERAL DECISIONS.
 
    BASED UPON THE FOREGOING INTERPRETATION BY THE OFFICE OF PERSONNEL
 MANAGEMENT, WE CONCLUDE THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT
 ENTITLED TO IMMEDIATE PROMOTION WITH BACKPAY, UNDER THE CIRCUMSTANCES OF
 THIS CASE, VIOLATES 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 FINDING THE
 GRIEVANT ENTITLED TO IMMEDIATE PROMOTION WITH BACKPAY.  /2/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 28, 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.