25:0167(11)CA - Army, Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 -- 1987 FLRAdec CA
[ v25 p167 ]
25:0167(11)CA
The decision of the Authority follows:
25 FLRA No. 11
DEPARTMENT OF THE ARMY,
U.S. ARMY MISSILE COMMAND,
REDSTONE ARSENAL, ALABAMA
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1858, AFL-CIO
Charging Party
Case No. 4-CA-60204
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" is
accordance with section 2429.1(a) of the Authority's Rules and
Regulations. The complaint alleged that the Respondent refused to
comply with a final and binding arbitrator's award in violation of
section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute).
II. Background
As stipulated by the parties, on February 11, 1985, Arbitrator
William D. Ferguson issued an opinion and award concerning a grievance
under a collective bargaining agreement between American Federation of
Government Employees, Local 1858 (the Union) and the Department of the
Army, U.S. Army Missile Command, Redstone Arsenal, Alabama (the
Respondent). According to the arbitrator, the grievant was one of two
GS-6 secretaries in a project office, and the grievance arose as a
result of an attempt, rejected by the Respondent's personnel office, to
noncompetitively promote the other secretary to GS-7. The grievant was
subsequently reassigned because of an anticipated reduction-in-force and
the promotion to GS-7 was announced competitively. Although the
grievant was one of the final candidates for the promotion, the other
secretary in the project office was selected for the competitive
promotion.
The arbitrator determined that the Respondent had violated the
parties' agreement by failing to inform the Union of the anticipated
reduction-in-force that had resulted in the reassignment of the
grievant. The arbitrator also determined that the Respondent violated
the parties' agreement by reassigning the grievant because the
reassignment was for the purpose of preventing her from being promoted.
As his award, the arbitrator ruled that the grievant was entitled, at
her request, to be promoted the same as the other project office
secretary with backpay.
The Respondent filed exceptions to the arbitrator's award of a
retroactive promotion with backpay essentially contending that the award
was contrary to the Back Pay Act, 5 U.S.C. Section 5596. In U.S. Army
Missile Command, Redstone Arsenal and American Federation of Government
Employees, Local 1858, 19 FLRA No. 38 (1985), the Authority agreed that
the award was deficient as contrary to the Back Pay Act because the
arbitrator had not made the requisite finding that but for the
unwarranted reassignment, the grievant otherwise definitely would have
been promoted. Accordingly, the Authority modified the award by
striking all provisions for retroactive promotion and backpay.
III. Position of the Parties
The General Counsel's position is essentially that the award as
modified by the Authority provides for the prospective promotion of the
grievant. Specifically, the General Counsel argues that because the
Authority modified the award to strike its provisions for a retroactive
promotion instead of setting the award aside, the Authority left
standing the prospective portion of the ordered promotion of the
grievant. Consequently, the General Counsel contends that by refusing
to promote the grievant, the Respondent has refused to comply with the
modified award in violation of section 7116(a)(1), (5), and (8) of the
Statute. The General Counsel further contends that because the
Respondent never raised the prospective aspects of the promotion ordered
by the arbitrator in its exceptions to the Authority, the Respondent is
now barred by section 7122(b) from challenging the prospective promotion
of the grievant.
The Respondent's position is that it has not refused to comply with
the arbitrator's award. The Respondent argues that the Authority
properly modified the award to strike all its provisions for retroactive
promotion and backpay and that it has complied with the award as
modified by the Authority. The Respondent further argues that any
interpretation of the award as modified to provide for a prospective
promotion must be rejected because the findings necessary for a
prospective promotion are the same as for a retroactive promotion.
IV. Analysis and Conclusions
We find that the award as modified by the Authority's decision in
U.S. Army Missile Command does not provide for a prospective promotion
of the grievant. Consequently, we conclude that the Respondent has not
failed or refused to comply with the final and binding arbitration award
and has not violated section 7116(a)(1), (5), and (8) of the Statute as
alleged.
In our view the only promotion ordered by the arbitrator was a
retroactive promotion with backpay. In agreement with the Agency's
exception, the Authority found that the award by the arbitrator of a
retroactive promotion was deficient as contrary to the Back Pay Act
because the arbitrator had failed to make the necessary finding that but
for the unwarranted reassignment of the grievant, the grievant otherwise
definitely would have been promoted. The Authority modified the award
"to strike all provisions for retroactive promotion and backpay." We
reject the argument of the General Counsel that because the Authority
modified the award rather than set the award aside, the Authority left
standing a prospective portion of the ordered promotion of the grievant.
The award was modified rather than set aside because no basis was
provided in the exceptions for finding deficient the arbitrator's
determinations that the Activity had violated the parties' collective
bargaining agreement. However, the arbitrator's sole remedy for those
violations was set aside in its entirety.
We further find that the General Counsel's asserted interpretation of
the Authority's decision and the award as modified is inconsistent with
established Authority precedent. We have consistently held that the
same finding that must be made by an arbitrator under the Back Pay Act
in order to authorize an award of a retroactive promotion must also be
made by an arbitrator in order to award a prospective promotion
consistent with section 7106(a)(2)(C) of the Statute. Section
7106(a)(2)(C) essentially reserves to management the right to make the
actual substantive determination to select or not to select employees
for promotion. This right may be constrained and an agency ordered by
an arbitrator to select a particular employee for promotion only if the
arbitrator finds that the employee was affected by improper agency
action that directly resulted in the failure of the employee to be
promoted when the employee otherwise would have been. For example,
Veterans Administration Medical and Regional Office Center, San Juan,
Puerto Rico and American Federation of Government Employees, Local Union
No. 2408, 21 FLRA No. 57 (1986). Given the Authority's express ruling
in U.S. Army Missile Command that the arbitrator failed to make this
finding, we conclude that the General Counsel's position that the award
as modified by the Authority left standing an order that the grievant be
promoted prospectively is unsupportable and we will dismiss the
complaint.
V. Order
The complaint in Case No. 4-CA-60204 is dismissed.
Issued, Washington, D.C., January 13, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED
STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change the established conditions of
employment or our employees in the Mid-Pacific Regional Office
concerning the maximum amount of travel advances for employees in the
Mid-Pacific Regional Office identified as frequent travelers under the
Government Charge Card Program, and interfere in the Mid-Pacific
Regional Office's obligation to bargain with National Federation of
Federal Employees, Local 951, the exclusive representative of these
employees, prior to the implementation of such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL withdraw and rescind the change which was implemented on or
about March 1, 1985 which policy changed the maximum amount of travel
advance for those employees identified as frequent travelers in the
Mid-Pacific Regional Office, and reinstate in the Mid-Pacific Regional
Office the procedures and policies relating to travel advances as
practiced prior to March 1, 1985.
Department of the Interior
Dated: By: Under Secretary
Bureau of Reclamation
Dated: By: Assistant Commissioner
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose
telephone number is: (415) 995-5000.