[ v15 p543 ]
The decision of the Authority follows:
15 FLRA No. 113 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 Union and UNITED STATES DEPARTMENT OF LABOR Agency Case No. O-AR-574 DECISION This matter is before the Authority on an exception to the award of Arbitrator Nicholas H. Zumas filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute in this matter concerns the Agency's cancellation of a vacancy announcement for a public information specialist position. A grievance was filed and submitted to arbitration claiming that the Agency's action violated the parties' collective bargaining agreement and requesting that the grievant, who was one of the candidates referred to the selecting supervisor, be retroactively promoted to the position with backpay. The Arbitrator determined that the grievant's supervisor cancelled the vacancy announcement because of her personal bias against the grievant in violation of the parties' collective bargaining agreement. In light of the grievant's excellent record and her rights under the agreement, he found that the grievant had a "probable expectation" of being promoted if the announcement had not been cancelled. He further found that the violation of the agreement by cancelling the vacancy announcement in order to prevent the grievant from being promoted constituted a sufficient basis for awarding backpay. Accordingly, as his award the Arbitrator directed the grievant's retroactive promotion with backpay. In its exception the Agency contends that the award is contrary to management's right to make selections as set forth in section 7106(a)(2)(C) of the Statute and FPM chapter 335. The Authority agrees. The Authority has held in this respect that management's right to make the actual selections for promotion can only be abridged if the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452 (1981); see also U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983). In terms of this case, the Authority concludes that the Arbitrator failed to make the necessary finding. Although the Arbitrator determined that the violation of the agreement coupled with the grievant's "probable expectation" of promotion was a sufficient basis for the award, the Authority finds that such determination was not sufficient. To the contrary, the Arbitrator's findings do not constitute the requisite finding that but for the unwarranted action of cancelling the vacancy announcement, the grievant would have been selected for promotion. Therefore, the award is deficient as contrary to management's right to make selections for promotion as set forth in section 7106(a)(2)(C) of the Statute and Requirement 4 of FPM chapter 335, subchapter 1-4. Accordingly, the award is modified to provide an appropriate legal remedy for the violation of the collective bargaining agreement found by the Arbitrator by substituting the following for the second sentence of the award: /1/ DOL is directed to give the grievant priority consideration under a new promotion or other appropriate placement action. Issued, Washington, D.C., August 16, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452, 456 & n.6 (1981).