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12:0161(38)AR - Army Infantry Center, Ft. Benning, GA and AFGE Local 54 -- 1983 FLRAdec AR

[ v12 p161 ]
The decision of the Authority follows:

 12 FLRA No. 38
                                            Case No. O-AR-411
    This matter is before the Authority on an exception to the award of
 Arbitrator Jack Clarke 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 Rules and Regulations.  /1/
    The dispute in this matter concerned the filling of a GS-9 audio
 visual production specialist position.  A job opportunity announcement
 was issued for the position and three candidates, including the
 grievant, applied for the position.  A rating panel reviewed the
 applications and determined that two of the three candidates, including
 the grievant, were highly qualified.  A referral and selection register
 (DA Form 2600) was then issued, listing the names of the grievant and
 the other highly qualified candidate.  Thereafter, the civilian
 personnel office determined that it was improper for the grievant, in
 his capacity as a first-line supervisor, to have evaluated the candidate
 found not to be highly qualified because they were both competing for
 the same position vacancy.  Consequently, this candidate was permitted
 to submit a revised application in which he provided a more detailed
 explanation of his training and experience and in which he was evaluated
 by his new supervisor.  However, the vacancy was not readvertised and no
 notice was given to the grievant or the other highly qualified
 candidate.  This application was then reviewed and this candidate was
 rated as highly qualified for the position.  Accordingly, a new referral
 and selection register was issued listing the names of all three
 candidates and the candidate who was permitted to submit the revised
 application was selected for the position.  A grievance was filed and
 submitted to arbitration challenging this selection.
    The Arbitrator determined that whether or not it was proper to permit
 the submission of a revised application in this case, the Activity
 violated the merit promotion plan by not permitting the other candidates
 the same opportunity.  Therefore, the Arbitrator ruled that the
 selection must be set aside and awarded, in pertinent part, as follows:
          Having heard or read and carefully reviewed the evidence and
       argumentative materials in this case and in light of the above
       Discussion, the grievance is granted in part.  The Agency is
       directed to vacate the position of Audio Visual Production
       Specialist, GS-9 advertised by Job Opportunity Announcement 257-80
       and filled by selection from DA Form 2600 Referral and Selection
       Register dated 11 May 1981.  The Agency is further directed to
       reinstate DA Form 2600 Referral and Selection Register of 17
       December 1980 relating to Audio Visual Production Specialist,
       GS-9, and to complete the selection process using that DA Form
       2600.  The grievance is otherwise denied.
 Any ambiguity as to the Arbitrator's intention in directing the Agency
 "to complete the selection process using that DA Form 2600" is resolved
 by the following language of the Arbitrator:  "The proper remedy in the
 present case is to direct that the Agency select from among the
 employees listed on the DA Form 2600 of 17 December 1980." Award at 34.
    In its exception the Agency contends that the award is contrary to
 management's right to select as set forth in section 7106(a)(2)(C) of
 the Statute /2/ and Requirement 4 of FPM chapter 335, subchapter 1-4.
 /3/ The Authority agrees.
    As the Authority clearly indicated in Defense Contract Administration
 Services Management Area (DCASMA), Cedar Rapids, Iowa and American
 Federation of Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94
 (1983), an arbitration award "ordering a selection from the original
 best-qualified group precludes a selection directly from other
 appropriate sources" and consequently is contrary to section
 7106(a)(2)(C) and FPM chapter 335, subchapter 1-4, Requirement 4
 expressly providing for management's right to select from among a group
 of candidates for promotion or from any other appropriate source.  Id.
 at 2.  Therefore, the Arbitrator's award herein, by directing a
 selection from the employees listed on the referral and selection
 register of December 17, 1980, is contrary to section 7106(a)(2)(C) and
 FPM chapter 335, subchapter 1-4 and must be modified.
    Accordingly, the award is modified to provide the following remedy in
 place of the remedy directed by the Arbitrator in the second and third
 sentences of his award:
          The Agency shall rerun the selection action for the Audio
       Visual Production Specialist position in this case.  The rerunning
       of the selection action by the Agency must fully conform with
       controlling law and regulation and with the parties' collective
       bargaining agreement.
 Issued, Washington, D.C., June 7, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Union filed an opposition which was untimely and has not been
 considered by the Authority.
    /2/ Section 7106 pertinently provides:
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
                                  * * * *
          (2) in accordance with applicable laws--
                                  * * * *
          (C) with respect to filling positions, to make selections for
       appointments from--
          (i) among properly ranked and certified candidates for
       promotion;  or
          (ii) any other appropriate source(.)
    /3/ FPM chapter 335, subchapter 1-4, Requirement 4 pertinently
          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