National Association of Government Employees, Local R4-97 (Union) and Naval Mine Engineering Facility, Yorktown, Virginia (Activity)  

 5 FLRA No. 57
 
 LOCAL R4-97, NATIONAL
 ASSOCIATION OF GOVERNMENT
 EMPLOYEES
 Union
 
 and
 
 NAVAL MINE ENGINEERING
 FACILITY, YORKTOWN, VIRGINIA
 Activity
 
                                            Case No. 0-AR-36
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JOHN G. GREGG FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNED THE
 SELECTION BY THE ACTIVITY OF A PERSON TO FILL A VACANT GS-11 PACKING
 SPECIALIST POSITION.  ON NOVEMBER 21, 1978, THE ACTIVITY ISSUED A
 VACANCY ANNOUNCEMENT FOR THE POSITION.  THAT ANNOUNCEMENT STATED THAT
 ELIGIBLE APPLICANTS WHO RECEIVED A POINT VALUE IN THE UPPER ONE-THIRD OF
 THE POSSIBLE TOTAL SCORING RANGE WOULD BE RATED HIGHLY QUALIFIED.  THE
 GRIEVANT AND THREE OTHER APPLICANTS WERE RATED ELIGIBLE FOR THE
 POSITION, BUT IN ACCORDANCE WITH THE UPPER ONE-THIRD CRITERION ONLY THE
 GRIEVANT WAS RATED HIGHLY QUALIFIED.  A CERTIFICATE WAS THEN PREPARED
 FOR ISSUANCE TO THE SELECTING OFFICIAL.  HOWEVER, PRIOR TO COMPLETION OF
 THE SELECTION PROCESS, ANOTHER CERTIFICATE WAS ISSUED TO REPLACE THE
 INITIAL CERTIFICATE.  THE ACTIVITY MAINTAINED THAT THE VACANCY
 ANNOUNCEMENT HAD ERRONEOUSLY PROVIDED THAT ONLY THE ELIGIBLE APPLICANTS
 SCORING IN THE UPPER ONE-THIRD WOULD BE RATED HIGHLY QUALIFIED.  THE
 REPLACEMENT CERTIFICATE WAS ISSUED TO IDENTIFY ALL THE CANDIDATES WHO
 WOULD HAVE BEEN RATED HIGHLY QUALIFIED IF THE ASSERTEDLY PROPER RANKING
 CRITERION HAD BEEN USED IN THE VACANCY ANNOUNCEMENT.  AS A RESULT, ALL
 FOUR CANDIDATES WERE RATED HIGHLY QUALIFIED ALTHOUGH THE PROVISIONS OF
 THE VACANCY ANNOUNCEMENT WERE NOT CHANGED.  WHEN NOTIFIED THAT HE HAD
 NOT BEEN SELECTED, THE GRIEVANT FILED A GRIEVANCE PROTESTING THE
 SELECTION
 
    AT THIS POINT, THE ACTIVITY APPARENTLY DETERMINED THAT THE APPEARANCE
 OF IRREGULARITIES REQUIRED THAT THE ACTION BE RERUN.  THUS, THE VACANCY
 ANNOUNCEMENT AND THE SELECTION WERE CANCELLED.  ON JANUARY 23, 1979, A
 NEW VACANCY ANNOUNCEMENT WAS ISSUED WITHOUT ANY SPECIFICATION OF HOW
 ELIGIBLE APPLICANTS WOULD BE RATED.  AGAIN, A CANDIDATE OTHER THAN THE
 GRIEVANT WAS SELECTED AND THE GRIEVANCE WAS SUBMITTED TO ARBITRATION.
 
    THE PARTIES STIPULATED THE FOLLOWING ISSUE FOR RESOLUTION BY THE
 ARBITRATOR:
 
    (W)HETHER THE GRIEVANT..., HAVING BEEN PROPERLY RANKED BY THE
 APPROPRIATE PANEL, WAS THEN
 
    BY THE SUBSEQUENT ACTIONS OF FACILITY MANAGEMENT DENIED THE PROCESS
 TO WHICH HE IS ENTITLED BY
 
    REASON OF THE COLLECTIVE BARGAINING AGREEMENT, THE VACANCY
 ANNOUNCEMENT, AND THE APPROPRIATE
 
    FEDERAL PERSONNEL MANUAL AND NAVY REGULATIONS.  THE ARBITRATOR FOUND
 THAT A NUMBER OF THE ACTIVITY'S ACTIONS IN THIS MATTER (SPECIFIED BY THE
 ARBITRATOR AS THE CHANGE IN THE ANNOUNCED BASIS FOR RATING, THE FAILURE
 TO RECONVENE THE RATING PANEL IN CONJUNCTION WITH THIS CHANGE, THE
 UNILATERAL CHANGE IN THE INITIAL CERTIFICATE OF HIGHLY QUALIFIED
 CANDIDATES, THE CANCELLATION OF THE ORIGINAL ANNOUNCEMENT, AND THE
 REANNOUNCEMENT WITH THE ORIGINAL BASIS FOR RATING DELETED AND WITHOUT
 SPECIFYING HOW CANDIDATES WOULD BE RATED) VIOLATED THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, AGENCY REGULATIONS, AND THE FEDERAL
 PERSONNEL MANUAL.  ON THIS BASIS THE ARBITRATOR DETERMINED THAT THE
 GRIEVANT "WAS DENIED THE PROCESS TO WHICH HE WAS ENTITLED BY REASON OF
 THE COLLECTIVE BARGAINING AGREEMENT AND THE PERTINENT REGULATIONS." THE
 ARBITRATOR ACCORDINGLY SUSTAINED THE GRIEVANCE AND AS HIS AWARD ORDERED
 AS FOLLOWS:
 
    MANAGEMENT SHALL, WITHOUT UNDUE DELAY, OFFER THE GRIEVANT HEREIN
 ...APPOINTMENT TO A
 
    POSITION AS PACKING SPECIALIST GS-11 OR TO A COMPARABLE POSITION.
 
    THE AGENCY HAS FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE UNION FILED AN OPPOSITION.
 
    AS ONE OF ITS EXCEPTIONS TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL (FPM), SPECIFICALLY
 MANAGEMENT'S RIGHT TO SELECT SET FORTH IN FPM CHAPTER 335.  THE AGENCY
 CLAIMS THAT THE AWARD ORDERING THE GRIEVANT PROMOTED IS CONTRARY TO
 SUBCHAPTER 1-4, REQUIREMENT 4 OF REVISED FPM CHAPTER 335, /3/ WHICH SETS
 FORTH MANAGEMENT'S RIGHT TO SELECT.
 
    IN SUPPORT OF THIS EXCEPTION, THE AGENCY FIRST CONCEDES THAT THE
 VACANCY ANNOUNCEMENT PURSUANT TO WHICH THE SELECTION WAS MADE VIOLATED
 THE COLLECTIVE BARGAINING AGREEMENT.  HOWEVER, THE AGENCY EMPHASIZES
 THAT NEVERTHELESS THE ARBITRATOR DID NOT FIND THAT BUT FOR THE ERRORS IN
 THE PROMOTION ACTION, THE GRIEVANT WOULD HAVE BEEN SELECTED FOR
 PROMOTION.  THE AGENCY MAINTAINS THAT. INSTEAD, THE ARBITRATOR ONLY
 FOUND THAT THE GRIEVANT WAS DENIED PROPER CONSIDERATION FOR PROMOTION.
 THE AGENCY FURTHER MAINTAINS THAT, IN AND OF ITSELF, DENIAL OF
 CONSIDERATION IS NOT A PERMISSIBLE BASIS FOR AWARDING A PROMOTION.  AS
 AUTHORITY FOR ITS POSITION, THE AGENCY ASSERTS THAT IT HAS LONG BEEN
 HELD UNDER FPM CHAPTER 335 THAT MANAGEMENT'S RIGHT TO SELECT /4/ CAN
 ONLY BE ABRIDGED IF A DIRECT CAUSAL CONNECTION IS ESTABLISHED BETWEEN
 THE IMPROPER AGENCY ACTION AND THE AGENCY'S FAILURE TO SELECT A SPECIFIC
 EMPLOYEE FOR PROMOTION.  THE AGENCY ARGUES THAT THERE WAS NO DIRECT
 CAUSAL CONNECTION BETWEEN THE VIOLATIONS FOUND BY THE ARBITRATOR AND THE
 FAILURE OF THE GRIEVANT TO BE PROMOTED AND THAT THE ARBITRATOR FOUND
 NONE.  THEREFORE, IT MAINTAINS THAT THE ARBITRATOR'S AWARD VIOLATES FPM
 CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4.
 
    IN OPPOSITION, THE UNION ARGUES THAT THE AWARD IS NOT CONTRARY TO THE
 FEDERAL PERSONNEL MANUAL BECAUSE THERE WAS A DIRECT CAUSAL CONNECTION
 BETWEEN THE IMPROPER ACTIONS BY THE ACTIVITY AND THE ACTIVITY'S FAILURE
 TO SELECT THE GRIEVANT FOR PROMOTION.  IN THIS RESPECT, THE UNION
 EMPHASIZES THAT PURSUANT TO THE ORIGINAL VACANCY ANNOUNCEMENT ONLY THE
 GRIEVANT WAS RATED HIGHLY QUALIFIED.  IN THESE CIRCUMSTANCES, THE UNION
 MAINTAINS THAT THE ACTIVITY'S ACTIONS WERE CONTROLLED BY AN AGENCY
 REGULATION THAT PROVIDED:
 
    IF SELECTION IS MADE FROM THE QUALIFIED CATEGORY, WHEN A HIGHLY
 QUALIFIED APPLICANT IS
 
    AVAILABLE, THE SELECTING OFFICIAL MUST STATE, IN WRITING, THE
 JUSTIFICATION FOR THE SELECTION.  THE UNION THEREFORE ARGUES THAT BY
 REGULATION THE GRIEVANT MUST HAVE BEEN SELECTED FOR THE POSITION UNLESS
 THERE WAS A WRITTEN JUSTIFICATION FOR HIS NON-SELECTION.  BECAUSE THERE
 WAS NOT WRITTEN JUSTIFICATION FOR HIS NON-SELECTION, THE UNION CLAIMS
 THAT THE GRIEVANT WAS ENTITLED BY REGULATION TO BE PROMOTED.  THE UNION
 FURTHER MAINTAINS THAT, WITH THE GRIEVANT HAVING BEEN THE ONLY HIGHLY
 QUALIFIED CANDIDATE, IT WOULD HAVE BEEN IMPOSSIBLE FOR THE ACTIVITY TO
 RATIONALLY JUSTIFY HIS NON-SELECTION.  THUS, THE UNION CONTENDS THAT THE
 ACTIVITY'S IMPROPER ACTION DIRECTLY CAUSED THE GRIEVANT'S NON-SELECTION
 AND THAT THEREFORE THE ARBITRATOR'S AWARD IS NOT CONTRARY TO THE FEDERAL
 PERSONNEL MANUAL.
 
    THE AGENCY'S EXCEPTION THAT THE AWARD IS CONTRARY TO THE FEDERAL
 PERSONNEL MANUAL STATES A GROUND ON WHICH THE AUTHORITY MAY FIND AN
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  FOR THE
 REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE ARBITRATOR'S AWARD IN
 THE CIRCUMSTANCES OF THIS CASE IS DEFICIENT BECAUSE IT IS CONTRARY TO
 THE FEDERAL PERSONNEL MANUAL AND THAT IT MUST THEREFORE BE MODIFIED
 ACCORDINGLY.
 
    REQUIREMENT 4 OF SUBCHAPTER 1-4, FPM CHAPTER 335, PROVIDES THAT ALL
 SELECTION PROCEDURES ESTABLISHED BY AN AGENCY IN PROMOTION ACTIONS MUST
 PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR NOT SELECT FROM AMONG A
 GROUP OF CANDIDATES.  THIS RETAINED RIGHT OF MANAGEMENT TO SELECT OR NOT
 SELECT MAY HOWEVER BE ABRIDGED IF A DIRECT CONNECTION IS FOUND BETWEEN
 IMPROPER AGENCY ACTION AND THE AGENCY'S FAILURE TO SELECT A SPECIFIC
 EMPLOYEE FOR PROMOTION.  THEREFORE, WHEN A GRIEVANCE INVOLVING
 MANAGEMENT'S ACTIONS IN A PARTICULAR PROMOTION ACTION IS SUBMITTED TO
 ARBITRATION, THE ARBITRATOR MAY PROPERLY DIRECT THE GRIEVANT TO BE
 SELECTED FOR THE POSITION IN QUESTION IF THE ARBITRATOR FINDS A DIRECT
 CAUSAL RELATIONSHIP BETWEEN IMPROPER AGENCY ACTION AND THE AGENCY'S
 FAILURE TO SELECT THE GRIEVANT FOR PROMOTION.  MORE PARTICULARLY, THE
 ARBITRATOR MUST FIND NOT ONLY A VIOLATION OF, FOR EXAMPLE, THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT OR PERTINENT REGULATIONS, BUT ALSO THAT
 HAD THE VIOLATIONS NOT OCCURRED MANAGEMENT ITSELF WOULD DEFINITELY HAVE
 ORIGINALLY SELECTED THE GRIEVANT FOR THE POSITION.
 
    IN THIS CASE, ALTHOUGH THE ARBITRATOR FOUND THAT THE ACTIVITY
 VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, AGENCY
 REGULATIONS, AND THE FEDERAL PERSONNEL MANUAL, HE FOUND THAT THE
 CONSEQUENCE OF THESE VIOLATIONS WAS THAT THE GRIEVANT "WAS DENIED THE
 PROCESS TO WHICH HE WAS ENTITLED BY REASON OF THE COLLECTIVE BARGAINING
 AGREEMENT AND THE PERTINENT REGULATIONS." THE ARBITRATOR'S FINDING THAT
 THE GRIEVANT "WAS DENIED THE PROCESS TO WHICH HE WAS ENTITLED" PLAINLY
 IS NOT THE REQUISITE FINDING THAT, BUT FOR THE DEFECTIVE PROMOTION
 PROCESS, THE GRIEVANT WOULD DEFINITELY HAVE BEEN SELECTED FOR PROMOTION.
  MOREOVER, THE UNION'S ARGUMENT THAT THERE IS A DIRECT CAUSAL
 RELATIONSHIP IS PREDICATED SOLELY ON ITS ASSERTION THAT THE GRIEVANT WAS
 ENTITLED TO THE PROMOTION BECAUSE HE WAS INITIALLY RANKED AS THE ONLY
 HIGHLY QUALIFIED CANDIDATE.  HOWEVER, NOTHING IN THE AGENCY REGULATION
 REQUIRING JUSTIFICATION FOR SELECTION OF A QUALIFIED APPLICANT RATHER
 THAN A HIGHLY QUALIFIED APPLICANT CAN BE INTERPRETED AS REQUIRING AN
 AUTOMATIC PROMOTION WHEN SUCH A JUSTIFICATION IS NOT MADE, AND IT IS
 CLEAR THAT UNDER FPM CHAPTER 335 THE ACTIVITY WAS NOT OBLIGATED IN THE
 CIRCUMSTANCES OF THIS CASE TO SELECT THE GRIEVANT.  ACCORDINGLY, THE
 AUTHORITY FINDS THAT THE ARBITRATOR'S AWARD DIRECTING THAT THE GRIEVANT
 BE PROMOTED TO A GS-11 PACKING SPECIALIST POSITION OR TO A COMPARABLE
 POSITION CANNOT BE IMPLEMENTED.  /5/
 
    HOWEVER, AS PREVIOUSLY INDICATED, THE ARBITRATOR MADE A SPECIFIC
 FINDING THAT THE ACTIVITY VIOLATED THE PARTIES' AGREEMENT, AGENCY
 REGULATIONS, AND THE FEDERAL PERSONNEL MANUAL AND THAT THESE VIOLATIONS
 DENIED THE GRIEVANT THE PROCESS TO WHICH HE WAS ENTITLED UNDER THE
 AGREEMENT AND THE REGULATIONS.  IN SUCH CIRCUMSTANCES, AN APPROPRIATE
 REMEDY IS TO DIRECT THAT THE GRIEVANT BE GIVEN PRIORITY CONSIDERATION
 UNDER A NEW PROMOTION OR PLACEMENT ACTION.  /6/ THEREFORE, IN LIGHT OF
 THE ARBITRATOR'S FINDINGS, AND IN ACCORDANCE WITH THE PROVISIONS OF
 SECTION 7122(A) OF THE STATUTE WHICH AUTHORIZES THE AUTHORITY TO "TAKE
 SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT
 CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS," THE AUTHORITY HEREBY MODIFIES THE AWARD TO READ AS
 FOLLOWS:
 
    MANAGEMENT SHALL, WITHOUT UNDUE DELAY, GIVE THE GRIEVANT HEREIN,
 RICHARD FARMER, PRIORITY
 
    CONSIDERATION FOR THE NEXT VACANCY IN A POSITION AS PACKAGING
 SPECIALIST GS-11 OR TO A
 
    COMPARABLE POSITION FOR WHICH HE QUALIFIES.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD
 IS HEREBY MODIFIED AND, AS TO MODIFIED, IS SUSTAINED.  /7/
 
    ISSUED, WASHINGTON, D.C., APRIL 10, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A( PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THE TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH ACTION AND
 MAKE SUCH RECOMMENDATIONS
 
    CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR
 
    REGULATIONS.
 
    /2/ ALTHOUGH THE AGENCY'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425 (1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ FPM CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4, EFFECTIVE JANUARY
 11, 1979, PROVIDES:
 
    SELECTION PROCEDURES WILL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
 NOT SELECT FROM AMONG
 
    A GROUP OF BEST QUALIFIED CANDIDATES.  THEY WILL ALSO PROVIDE FOR
 MANAGEMENT'S RIGHT TO SELECT
 
    FROM OTHER APPROPRIATE SOURCES, SUCH AS REEMPLOYMENT PRIORITY LISTS,
 REINSTATEMENT, TRANSFER,
 
    HANDICAPPED, OR VETERANS READJUSTMENT 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.
 
    /4/ PRIOR TO THE REVISIONS TO CHAPTER 335, EFFECTIVE JANUARY 11,
 1979, MANAGEMENT'S RIGHT TO SELECT WAS SET FORTH IN REQUIREMENT 6 OF
 SUBCHAPTER 2 OF FPM CHAPTER 335 AND PROVIDED:
 
    EACH PLAN SHALL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
 NON-SELECT.  EACH PLAN SHALL
 
    INCLUDE A PROCEDURE FOR REFERRING TO THE SELECTING OFFICIAL A
 REASONABLE NUMBER OF THE BEST
 
    QUALIFIED CANDIDATES IDENTIFIED BY THE COMPETITIVE EVALUATION METHOD
 OF THE PLAN (REFERRAL OF
 
    FEWER THAN THREE OR MORE THAN FIVE NAMES FOR A VACANCY MAY ONLY BE
 DONE IN ACCORDANCE WITH
 
    CRITERIA SPECIFIED IN THE PLAN).
 
    /5/ UNDER THE PROVISIONS OF SECTION 7105(I) OF THE STATUTE (5 U.S.C.
 7105(I)), THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM THE OFFICE OF
 PERSONNEL MANAGEMENT REGARDING THE PROVISIONS OF FPM CHAPTER 335
 RELEVANT TO THIS CASE.  OPM'S RESPONSE, TO WHICH THE PARTIES WERE
 AFFORDED THE OPPORTUNITY TO FILE COMMENTS, IS CONSISTENT WITH THE
 AUTHORITY'S INTERPRETATION OF THE FEDERAL PERSONNEL MANUAL IN THIS CASE.
 
    /6/ APPENDIX A TO FPM CHAPTER 335 PROVIDES IN SUBSECTION A-4C(2) AS
 FOLLOWS:
 
    IF THE CORRECTIVE ACTION DID NOT INCLUDE VACATING THE POSITION, AN
 EMPLOYEE WHO WAS NOT
 
    PROMOTED OR GIVEN PROPER CONSIDERATION BECAUSE OF THE VIOLATION MAY
 BE GIVEN PRIORITY
 
    CONSIDERATION UNDER A NEW PROMOTION OR OTHER PLACEMENT ACTION.
 
    /7/ IN VIEW OF THIS DECISION, IT IS UNNECESSARY FOR THE AUTHORITY TO
 ADDRESS THE AGENCY'S OTHER EXCEPTION TO THE AWARD.