15:0543(113)AR - AFGE Local 12 and Labor -- 1984 FLRAdec AR

 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).