21:0927(108)AR - Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Ky. and AFGE, Local 817 -- 1986 FLRAdec AR

[ v21 p927 ]
The decision of the Authority follows:

 21 FLRA No. 108
                                            Case No. 0-AR-1025
                         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.
    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
                             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 consideratio