22:0382(36)AR - Naval Ordnance Station, Louisville, KY and IAM, Local Lodge 830 -- 1986 FLRAdec AR
[ v22 p382 ]
The decision of the Authority follows:
22 FLRA No. 36 U.S. NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY Activity and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 830 Case No. 0-AR-1039 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator James P. Martin 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. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case concerned the Activity's failure to permanently promote the grievant to the position of planner and estimator, WD-8. According to the Arbitrator, the grievant is a journeyman electrician who was temporarily promoted on September 5, 1982, to the position of assistant planner and estimator, WD-5, in the Activity's public works department. In 1983 after a commercial activity study, it was determined to contract out the public works functions. On March 15, 1984, the grievant's temporary promotion to assistant planner was terminated and he was temporarily promoted to the position of planner and estimator to assist in the transition to contractor operation of the public works functions which were contracted out on June 1, 1984. The grievance was filed when the grievant was only temporarily rather than permanently promoted to planner and estimator. The Arbitrator concluded that the written documentation of the grievant's temporary promotion to assistant planner fully complied with regulation. He acknowledged that the documentation confirmed that the promotion was temporary and that although a permanent promotion to the position of planner was possible, no promise of such promotion was made in writing. However, the Arbitrator found that orally the grievant was continuously promised that he would be permanently promoted to planner when it was possible and that these oral inducements completely contradicted the merit promotion regulation. He also found that contrary to that regulation, the Activity had used the temporary promotion of the grievant to assistant planner to train or evaluate him for the planner position. While acknowledging that the determination to contract out had abolished the position for which the grievant claimed a permanent promotion, the Arbitrator concluded that the grievant should have been permanently promoted to the position of planner and estimator on March 15, 1984. Accordingly, the Arbitrator ordered that the grievant be promoted on a permanent basis to planner and estimator effective March 15, 1984. III. EXCEPTIONS In one of its exceptions, the Agency contends that the award interferes with management's right to select in violation of section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4. IV. ANALYSIS AND CONCLUSIONS The Authority has specifically held that management's right under the Statute and the FPM to make the actual selections for promotion can only be abridged by an award of an arbitrator when the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected for promotion. U.S. Army Missile Command, U.S. Army Communications Command Agency -- Redstone, U.S. Army Commissary, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, AFL-CIO, 20 FLRA No. 94 (1985). It is necessary for arbitrators in these cases to reconstruct, on the basis of the evidence presented, what the responsible selecting or appointing officials would have done if the unwarranted agency actions had not occurred. See American Federation of Government Employees, Local 2811 and U.S. Government District Office, Social Security Administration, St. Paul, Minnesota, 7 FLRA 618, 620 (1982). In particular, in order to require an agency to select a particular employee for a permanent promotion, an arbitrator must find on the basis of the reconstruction that the responsible selecting official would have selected that employee but for the unwarranted actions. See American Federation of Government Employees, Local 3553, AFLO-CIO and Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985). In this case the Authority concludes that the Arbitrator's award of a permanent promotion is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335. As noted, the Arbitrator found that the grievant "should have been . . . promoted" as the result of the improper oral inducements and the improper use of a temporary promotion. In view of the Arbitrator's express acknowledgement that the written documentation of the personnel actions confirmed that no promise of permanent promotion to the position of planner was to be implied and that the planner position had been abolished by the decision to contract out, the Arbitrator's finding that the grievant should have been promoted does not support the award of a permanent promotion. The Arbitrator's finding does not constitute the necessary finding that but for the unwarranted actions, the responsible selecting official would have selected the grievant for a permanent promotion to planner and estimator effective March 15, 1984. Consequently, the award is deficient and must be modified. V. DECISION For these reasons the award is modified by striking the order that the grievant be permanently promoted to planner and estimator effective March 15, 1984. /*/ Issued, Washington, D.C., July 7, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In view of this decision, it is not necessary to address the Agency's other exceptions.