21:0927(108)AR - Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Ky. and AFGE, Local 817 -- 1986 FLRAdec AR
[ v21 p927 ]
21:0927(108)AR
The decision of the Authority follows:
21 FLRA No. 108
U.S. DEPARTMENT OF JUSTICE,
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION,
LEXINGTON, KENTUCKY
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 817
Union
Case No. 0-AR-1025
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator John J. Murphy filed by the Department of Justice (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 Office of Personnel Management filed a brief as an
amicus curiae.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant alleged that her performance evaluation of "fully
successful" was erroneous and that as a result she was not selected for
certain GS-8 positions for which she competed. The Arbitrator
determined that the grievant's evaluation for the 1983-1984 appraisal
period was substantially defective because it did not include input from
the unit manager who acted as her supervisor during nine of the twelve
months covered by the evaluation. However, he found that although the
grievant's rating would probably have been higher if the evaluation had
been conducted properly, there was no basis upon which he could
determine the actual rating. The Arbitrator therefore concluded that he
was unable to make a finding that "but for" the error the grievant would
have been promoted to GS-8 in June 1984 rather than May 1985, and that
he was unable to award the grievant a retroactive promotion. The
Arbitrator, noting that the grievant had subsequently been promoted to
GS-8, determined that an appropriate remedy for earlier deficiencies in
the process of rating the grievant would be the granting of preferential
treatment for promotion to GS-9 and made the following award:
The grievance is granted to the extent the Grievant shall be
given priority placement for the next promotion to a GS-9 level at
the Federal Correctional Institution in Lexington, Kentucky, that
occurs after the Grievant has had at least one year in the GS-8
grade.
III. EXCEPTIONS
In its exception, the Agency contends that the award is contrary to
section 7106(a)(2)(C) of the Statute because it requires "placement" of
the grievant in a GS-9 position and therefore negates management's right
to make a selection for appointment to such a position from any other
appropriate source.
The Agency further contends that if the Arbitrator directed that the
grievant be given priority consideration for promotion to GS-9, the
award is contrary to Federal Personnel Manual (FPM) chapter 335. In
support of this contention the Agency argues that according priority
consideration to the grievant for a GS-9 position would be inappropriate
and contrary to the intent of FPM chapter 335. The Agency acknowledges
that under FPM chapter 335, Appendix A-4, /*/ agencies have broad
discretion to use priority consideration to remedy errors in promotion
actions. However, the Agency argues that priority consideration is a
limited exception to the merit promotion process and that the intent of
the FPM provision is to give an employee who has been erroneously not
selected or not properly considered for promotion, consideration ahead
of others only for another position at the same grade level. In its
amicus curiae submission, the Office of Personnel Management agrees with
the Agency's interpretation of FPM chapter 335.
IV. ANALYSIS AND CONCLUSIONS
The Authority finds that the decision on the issue of whether the
Arbitrator's award is deficient as the Agency alleges depends on the
meaning of the word "placement."
If "placement" means selection, the Agency is correct in its
contention that the award is contrary to section 7106(a)(2)(C) of the
Statute. It is well established that management's right to make the
actual selection for an appointment 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. Office of the
Secretary, U.S. Department of Transportation and American Federation of
Government Employees, Local 3313, AFL-CIO, 17 FLRA 54 (1985). The
Arbitrator did not find any connection whatsoever between the Agency's
improper action and the nonselection of the grievant for any GS-9
position. Rather, the Arbitrator specifically declined to even make a
finding that but for the improper evaluation, the grievant would have
been selected for a GS-8 position. Consequently, as the Arbitrator
correctly recognized, there was no legal basis for ordering a
retroactive promotion to GS-8, and there is likewise no legal basis for
ordering the selection of the grievant for a GS-9 position. The
Authority therefore concludes that the Arbitrator's award, to the extent
it directs placement of the grievant in a GS-9 position, is contrary to
management's right to make selections for appointment under section
7106(a)(2)(C) of the Statute.
If, however, "priority placement" means "priority consideration," the
Agency has failed to establish that the award is deficient. In the
typical situation where an aggrieved employee has been wrongfully denied
the consideration or process to which the employee was entitled in a
promotion action, and the employee has not yet been promoted when the
grievance is considered, the Authority has recognized that an
appropriate remedy under Appendix A-4c(2) of FPM chapter 335 is to
direct that the employee be granted priority consideration for promotion
to the next available higher-graded position for which the employee is
qualified. E.g., Local R4-97, National Association of Government
Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5
FLRA 452, 456 (1981). However, as the Agency acknowledges, FPM chapter
335 does not expressly limit the remedy of priority consideration to
those typical situations. Specifically, the FPM does not prohibit
priority consideration as a remedy in circumstances such as here
involved. Rather, as the Agency further acknowledges, Appendix A-4
provides broad discretion in the use of priority consideration as a
corrective action. In this case, it is clear that the Arbitrator,
consistent with Appendix A-4, based his determination that priority
treatment for a GS-9 vacancy was warranted to remedy the violation found
on the facts, circumstances, rights and interests involved.
Furthermore, it is well established that arbitrators have considerable
latitude in fashioning remedies in disputes. Veterans Administration
Hospital, Newington, Connecticut and National Association of Government
Employees, Local R1-109, 5 FLRA 64 (1981). The Authority therefore
concludes that the Agency has failed to establish that an award of
priority consideration for promotion to GS-9 in this case is deficient.
V. DECISION
Accordingly, for the above reasons, the Arbitrator's award is
modified to provide as follows:
The grievance is granted and the Grievant shall be given
priority consideration for promotion to the next available GS-9
position at the Federal Correctional Institution in Lexington,
Kentucky, that occurs after the Grievant has at least one year in
the GS-8 grade and for which the grievant applies and is
qualified.
Issued, Washington, D.C., May 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) Appendix A-4 of FPM chapter 335 provides, in part:
CHAPTER 335. PROMOTION AND INTERNAL PLACEMENT
Appendix A. General Regulatory Provisions
A-4. CORRECTIVE ACTIONS
a. General.
(1) Alternative actions . . . The nature and extent of actions to be
taken in any case have to be determined on the basis of all the facts in
the case, with due regard to the circumstances surrounding the
violation, to the equitable and legal rights of the parties concerned,
and to the interests of the Government.
* * * * * * *
c. Action involving nonselected employees.
* * * * * * *
(2) If the corrective action did not include vacating the position,
an employee who was not promoted or given proper consideration because
of the violation may be given priority consideration under a new
promotion or other placement action. Agencies may make the final
determination on how they will handle actions involving nonselected
employees, except when actions are mandated by law or regulation.