National Federation of Federal Employees, Local 1332 (Union) and Army Materiel Development and Readiness Command Headquarters (Activity) 

 7 FLRA No. 95
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 1332
 Union
 
 and
 
 UNITED STATES ARMY
 MATERIEL DEVELOPMENT
 AND READINESS
 COMMAND HEADQUARTERS
 Activity
 
                                            Case No. O-AR-93
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR J. ROSS HUNTER, JR., FILED BY THE AGENCY UNDER SECTION
 7112(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER INVOLVES THE
 GRIEVANT'S REQUEST FOR REPROMOTION CONSIDERATION FOR A PARTICULAR
 POSITION VACANCY ANNOUNCED AT GS-5/6/7/8 WITH A TARGET GRADE OF GS-9.
 THE GRIEVANT IS A GS-7 WHO IS ENTITLED TO SPECIAL CONSIDERATION FOR
 REPROMOTION TO A GS-8 POSITION.  WHEN SHE WAS NOTIFIED THAT SHE HAD NOT
 BEEN CONSIDERED FOR THE POSITION, SHE FILED A GRIEVANCE.  AS A RESULT OF
 HER GRIEVANCE, THE ACTIVITY HAD THE RATING AND RANKING PANEL
 RECONSTRUCTED AND THIS TIME THE GRIEVANT WAS RATED QUALIFIED BUT WAS NOT
 CERTIFIED AS AMONG THE BEST QUALIFIED.  HOWEVER, THE RECONSTRUCTION DID
 NOT SATISFACTORILY RESOLVE THE GRIEVANCE AND IT WAS ULTIMATELY SUBMITTED
 TO ARBITRATION.
 
    THE ARBITRATOR RULED THAT THE GRIEVANT WAS ENTITLED TO HAVE BEEN
 GIVEN SPECIAL CONSIDERATION FOR REPROMOTION IN THIS CASE, BUT HE FOUND
 THAT SUCH CONSIDERATION HAD BEEN DENIED HER.  ON THE BASIS OF THIS
 FINDING, THE ARBITRATOR, AS HIS AWARD, OFFERED THE ACTIVITY THE
 ALTERNATIVE OF EITHER GRANTING THE GRIEVANT SPECIAL CONSIDERATION FOR
 REPROMOTION TO THE NEXT APPROPRIATE VACANCY IN EITHER A GS-8 POSITION OR
 GS-8 WITH A TARGET GRADE OF GS-9 POSITION OR OF RERUNNING THE PROMOTION
 ACTION WITH THE GRIEVANT GRANTED REPROMOTION CONSIDERATION.
 
    BECAUSE OF A DISPUTE BETWEEN THE PARTIES CONCERNING THE EXTENT OF THE
 GRIEVANT'S ENTITLEMENT TO SPECIAL CONSIDERATION FOR REPROMOTION, A
 SUPPLEMENTAL AWARD WAS ISSUED BY THE ARBITRATOR.  IN THIS AWARD THE
 ARBITRATOR SPECIFICALLY ADDRESSED THE ACTIVITY'S CONTENTION THAT THE
 GRIEVANT COULD NOT PROPERLY BE GRANTED SPECIAL CONSIDERATION FOR
 REPROMOTION TO A POSITION WITH A TARGET GRADE OF GS-9 BECAUSE THE GRADE
 FROM WHICH SHE WAS DEMOTED WAS GS-8.  THE ARBITRATOR REJECTED THE
 ACTIVITY'S CONTENTION, RULING THAT THE FEDERAL PERSONNEL MANUAL (FPM)
 DID NOT PRECLUDE THE ACTIVITY FROM GRANTING SPECIAL CONSIDERATION TO AN
 EMPLOYEE IN SUCH CASES.  THE ARBITRATOR REASONED THAT REPROMOTION
 CONSIDERATION IS APPLICABLE TO SUCH POSITIONS BECAUSE THE EMPLOYEE HAS
 NO ENTITLEMENT OR RIGHT TO A NONCOMPETITIVE PROMOTION TO THE TARGET
 GRADE.  RATHER, THE NONCOMPETITIVE PROMOTION MUST BE BASED ON A
 DEMONSTRATION BY THE EMPLOYEE OF BEING QUALIFIED FOR THE PROMOTION.
 AGAIN, THE ARBITRATOR OFFERED ALTERNATIVES TO RESOLVE THE DISPUTE:  THAT
 THE ACTIVITY GRANT THE GRIEVANT SPECIAL CONSIDERATION FOR REPROMOTION TO
 THE NEXT APPROPRIATE VACANCY IN A GS-8 POSITION OR GS-8 WITH A TARGET
 GRADE OF GS-9 POSITION, OR THAT THE ACTIVITY RERUN THE PROMOTION ACTION,
 OR THAT THE PARTIES DELEGATE TO THE ARBITRATOR THE AUTHORITY TO RERUN
 THE PROMOTION ACTION WITH THE ARBITRATOR FUNCTIONING AS THE RATING AND
 RANKING PANEL AND THE SELECTING OFFICIAL.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 AWARD VIOLATES FPM CHAPTER 335.  IN SUPPORT OF THIS EXCEPTION THE AGENCY
 ASSERTS THAT ALTHOUGH "REPROMOTION IS WARRANTED TO THE GRADE LEVEL FROM
 WHICH THE EMPLOYEE WAS DEMOTED, IT WOULD VIOLATE THE INTENT OF THE
 REGULATION TO CONFER AN ADDITIONAL ENTITLEMENT TO NONCOMPETITIVE
 PROMOTION TO A GRADE HIGHER THAN THAT PREVIOUSLY HELD." CONSEQUENTLY,
 THE AGENCY ARGUES THAT THE ARBITRATOR'S ORDER INCLUDING GS-8 POSITIONS
 WITH A TARGET GRADE OF GS-9 AMONG THE POSITIONS FOR WHICH THE GRIEVANT
 IS TO BE GRANTED SPECIAL CONSIDERATION FOR REPROMOTION IS CONTRARY TO
 THE FEDERAL PERSONNEL MANUAL.
 
    HOWEVER, THE AGENCY HAS NOT IN ANY MANNER ESTABLISHED THAT THE
 ARBITRATOR'S AWARD IS CONTRARY TO THE REQUIREMENTS OF FPM CHAPTER 335.
 NOTHING IN THAT CHAPTER SPECIFICALLY PROHIBITS GRANTING A REPROMOTION
 ELIGIBLE A NONCOMPETITIVE PROMOTION TO A POSITION WITH MORE PROMOTION
 POTENTIAL THAN THE POSITION FROM WHICH HE OR SHE WAS DEMOTED.  CONTRARY
 TO THE AGENCY'S ASSERTIONS, THERE IS NO PROHIBITION IN THE FPM AGAINST
 SPECIAL CONSIDERATION FOR, OR NONCOMPETITIVE REPROMOTION TO, A POSITION
 WITH MORE PROMOTION POTENTIAL THAN THAT FROM WHICH THE EMPLOYEE WAS
 DEMOTED AND THE AGENCY'S ARGUMENTS REGARDING THE "INTENT" OF THE FPM
 PROVIDE NO BASIS FOR FINDING OTHERWISE.  BECAUSE THE AGENCY HAS FAILED
 TO ESTABLISH THAT THE SPECIAL CONSIDERATION FOR REPROMOTION ORDERED BY
 THE ARBITRATOR IS PROHIBITED BY THE FPM, ITS EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO LAW BECAUSE OF THE ARBITRATOR'S OFFER TO THE PARTIES IN HIS
 SUPPLEMENTAL AWARD OF THE OPTION OF DELEGATING TO HIM THE AUTHORITY OF
 THE RATING PANEL AND SELECTING OFFICIAL.  SPECIFICALLY, THE AGENCY
 ARGUES THAT SUCH DELEGATION WOULD BE CONTRARY TO MANAGEMENT'S RIGHT
 UNDER SECTION 7106(A) OF THE STATUTE TO HIRE, ASSIGN, AND DIRECT
 EMPLOYEES AND TO MAKE SELECTIONS AND WOULD BE CONTRARY TO 5 U.S.C. 2105
 WHICH DESIGNATES THOSE WHO MAY PROPERLY MAKE APPOINTMENTS TO THE FEDERAL
 CIVIL SERVICE.
 
    HOWEVER, THIS EXCEPTION PROVIDES NO BASIS ON WHICH THE AWARD MAY BE
 FOUND DEFICIENT.  AS HAS BEEN NOTED, THE DELEGATION TO WHICH THE AGENCY
 TAKES EXCEPTION WAS ONLY ONE OF SEVERAL ALTERNATIVES THAT THE ARBITRATOR
 DETERMINED WOULD APPROPRIATELY RESOLVE THIS DISPUTE.  HE ALSO DETERMINED
 THAT GRANTING THE GRIEVANT REPROMOTION CONSIDERATION FOR THE NEXT
 APPROPRIATE VACANCY WOULD LIKEWISE SUITABLY RESOLVE THIS MATTER, AND THE
 AGENCY'S EXCEPTION TO THAT PROVISION OF THE AWARD HAS BEEN FOUND TO
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.  CONSEQUENTLY, WHILE
 THE AUTHORITY AGREES WITH THE AGENCY THAT THE SPECIFIED DELEGATION WOULD
 BE CONTRARY TO LAW AND THEREFORE THE AGENCY CANNOT LEGALLY COMPLY WITH
 THIS ALTERNATIVE, THE AUTHORITY FINDS THAT THE MERE OFFER OF SUCH
 DELEGATION AS ONE AVAILABLE DISPOSITION FAILS TO ESTABLISH THAT THE
 AWARD IS CONTRARY TO LAW WHEN ANOTHER OF THE ALTERNATIVES OFFERED TO THE
 ACTIVITY PROVIDES FOR A PROPER RESOLUTION OF THE DISPUTE.  IN SUCH
 CIRCUMSTANCES THERE IS NO DEMONSTRATION THAT IMPLEMENTATION OF THE AWARD
 CANNOT BE FULLY CONSISTENT WITH LAW.
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                       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 THIS 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.