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24:0134(18)AR - Local 12, AFGE and DOL -- 1986 FLRAdec AR

[ v24 p134 ]
The decision of the Authority follows:

 24 FLRA No. 18
                                            Case No. 0-AR-1081
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator Benjamin B. Lipton filed by the Agency and by the Union under
 section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.
    The grievant was employed by the Agency as a GS-5 library technician
 from 1980 until he voluntarily resigned in 1985.  In a grievance filed
 in January 1984, he contended that he was denied a career ladder
 promotion to GS-6 because of sex, race and union activities and that he
 was harassed.  The grievance was submitted to arbitration.  The
 Arbitrator found that the allegations of discrimination and harassment
 were not supported by the evidence, and ruled that the grievant's level
 of performance did not qualify him for a promotion to GS-6.  Although
 the Arbitrator found that the Agency failed to meet its obligation under
 the agreement to provide the grievant with grade-building experience and
 developmental opportunity, he also noted that the evidence did not
 establish a reasonable probability that the grievant would have been
 promoted even if that experience had been provided.  As his award the
 Arbitrator ordered the Agency to offer the grievant "instatement" in a
 GS-5 career ladder position with the potential for promotion to GS-6 at
 two six-month intervals during the first year with retroactive pay if
 the grievant were promoted.  He denied the grievant's request for
 attorney fees.
                          III.  AGENCY EXCEPTIONS
                              A.  Contentions
    The Agency contends the award conflicts with its right to select
 under section 7106(a)(2)(C) of the Statute because it requires the
 Agency to offer the grievant the GS-5 position from which he voluntarily
 resigned.  The Agency also contends that the award is contrary to the
 Back Pay Act, 5 U.S.C. Section 5596, because it awards backpay without
 the requisite finding that "but for" the Agency's action the grievant
 would have been promoted.
                        B.  Analysis and Conclusion
    The Authority agrees that the award is deficient on the grounds
 stated in Agency's exceptions.  It is well established that management's
 right to make a selection for an appointment can be abridged only if the
 arbitrator finds a direct connection between improper agency action and
 the failure of a specific employee to be selected.  U.S. Department of
 Justice, Bureau of Prisons, Federal Correctional Institution, Lexington,
 Kentucky and American Federation of Government Employees, Local 817, 21
 FLRA No. 108 (1986).  In this case, the Arbitrator did not find that the
 Agency's failure to provide the grievant with grade-building experience
 directly resulted in the denial of the career ladder promotion.  To the
 contrary, he ruled that the grievant's performance was such that there
 was no reasonable probability of his being promoted even if
 grade-building experience had been provided.  Further, the Arbitrator
 made no finding that the Agency's improper action caused the grievant to
 resign from his GS-5 position.  Therefore, we conclude that the award
 directing "instatement" of the grievant in a GS-5 position is deficient
 as contrary to management's right to make selections for appointment
 under section 7106(a)(2)(C) of the Statute.
    With regard to the Arbitrator's award of retroactive pay, we conclude
 that the award is contrary to the Back Pay Act.  Backpay can be granted
 under that Act only upon finding that (1) an agency personnel action was
 unjustified or unwarranted;  (2) the personnel action directly resulted
 in the withdrawal or reduction of an aggrieved employee's pay,
 allowances, or differentials;  and (3) but for such action, the grievant
 would not have suffered such withdrawal or reduction.  U.S. Department
 of Commerce, Patent and Trademark Office and the Patent Office
 Professional Association, 21 FLRA No. 52 (1986).  The Arbitrator made no
 finding that an improper action by the Agency directly resulted in the
 denial of grievant's promotion or in his resignation from his GS-5
 position.  Therefore, the requirements of the Back Pay Act have not been
                        IV.  FIRST UNION EXCEPTION
                              A.  Contentions
    The Union contends that the Arbitrator's denial of its request for
 attorney fees is contrary to law.  The Union maintains that it is
 entitled to attorney fees because it was the prevailing party in the
 arbitration proceeding, and also maintains that the Arbitrator's summary
 denial of fees without expressing a basis for his decision was arbitrary
 and capricious.
                        B.  Analysis and Conclusion
    The Union's first exception is denied.  The Authority has
 consistently held that an arbitrator is authorized to award attorney
 fees under the terms of the Back Pay Act only in conjunction with an
 award of backpay on the correction of an unjustified or unwarranted
 personnel action.  United States Army Aviation Systems Command and
 National Federation of Federal Employees, Local 405, 22 FLRA No. 35
 (1986).  Further, the award of attorney fees must be in accordance with
 the standards established under 5 U.S.C. Section 7701(g).  Id.  In this
 case, as noted in connection with the Agency's exceptions, the
 Arbitrator's award fails to meet the requirements of the Back Pay Act
 and accordingly, there is no basis for an award of backpay or attorney
 fees under the Act
                        V.  SECOND UNION EXCEPTION
                              A.  Contentions
    In its second exception the Union contends that the award is
 deficient because the Arbitrator denied it a fair hearing by improperly
 rejecting evidence and by misunderstanding key factual matters.
                        B.  Analysis and Conclusion
    The Union's second exception fails to provide a basis for finding the
 award deficient and is denied.  Although the Authority will find an
 arbitration award deficient if it is established that the arbitrator
 failed to conduct a fair hearing by refusing to hear pertinent and
 material evidence, an arbitrator has considerable latitude in the
 conduct of the hearing.  U.S. Department of Labor and American
 Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639,
 641 (1983).  In this case the Union has failed to establish that it was
 denied a fair hearing.  We conclude that the Union's second exception
 constitutes nothing more than disagreement with the Arbitrator's
 reasoning and conclusions and with his evaluation of the evidence and
 testimony presented.  This disagreement is not a basis for finding an
 award deficient.  Supervisor of Shipbuilding, Conversion and Repair,
 United States Navy and Local R4-2, National Association of Government
 Employees (NAGE), 5 FLRA 235 (1981).
                               VI.  DECISION
    While the Agency's exceptions provide a basis for finding the award
 deficient as contrary to section 7106(a)(2)(C) of the Statute and the
 Back Pay Act, we recognize that the Arbitrator made a valid finding that
 the Agency violated the agreement when it failed to provide the grievant
 with grade-building experience.  In Bureau of Prisons, 21 FLRA No. 108,
 supra. the Authority held that priority consideration under FPM Chapter
 335 is available as a corrective action in a variety of situations in
 which employees have been found to be wrongfully denied the
 consideration or process to which they are entitled.  Therefore, the
 Arbitrator's award is set aside and replaced with the following:
       Consistent with applicable law, the grievant shall be given
       priority consideration for selection to the next available GS-5
       library technician position for which he applies.
    Issued, Washington, D.C., November 21, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY