[ v12 p161 ]
The decision of the Authority follows:
12 FLRA No. 38 U.S. ARMY INFANTRY CENTER, FT. BENNING, GEORGIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 54, AFL-CIO Union Case No. O-AR-411 DECISION 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 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.