[ v25 p167 ]
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.