26:0250(31)AR - AFGE, Local 1960, and Navy, Development Center -- 1987 FLRAdec AR



[ v26 p250 ]
26:0250(31)AR
The decision of the Authority follows:


 26 FLRA No. 31
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1960
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 DEVELOPMENT CENTER
 Activity
 
                                            Case No. 0-AR-1221
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator C. Bette Wimbish filed by the Department of the Navy (Agency)
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute (the Statute) and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    According to the Arbitrator's award, the grievant was assigned to
 perform duties as supervisor of the Graphics Section in October 1983.
 He performed those duties until January 1986.  However, he was never
 officially detailed or promoted.  During most of the time the grievant
 performed the duties, there was no position description for a position
 of graphics supervisor.
 
    In July 1985 the Activity established a position of Illustration
 Supervisor, GS-12 which was not filled.  In December 1985, the Activity
 established and advertised a position of Illustration Supervisor, GS-11
 with potential to GS-12.  The grievant applied for this position but
 another employee was selected.  In his grievance, the grievant contended
 that he should have been detailed to a supervisory position and received
 pay for performing supervisory duties and that he should have been
 retained in the position after it was officially established.  The
 Activity contended that the GS-11 position was a new position which was
 properly filled by selection of a person other than the grievant.
 
    The Arbitrator found that the grievant had served in a supervisory
 capacity for the time in question and that there was official
 recognition by the Activity of this fact.  She also found that although
 the grievant was actually the supervisor of the Graphics Section during
 that time, there had never been a position description for a supervisory
 position and he had never been detailed or temporarily promoted to a
 supervisory position, in violation of the collective bargaining
 agreement provision governing details.  The Arbitrator ruled that the
 Activity had established a past practice of assigning supervisory duties
 without using a position description and that the grievant had the right
 to believe that he was promoted noncompetitively to a GS-12 supervisory
 position.  As her award, she granted the grievance and ordered that the
 grievant resume supervisory duties and that he be given backpay for two
 years and three months (from October 1983 to January 1986) at the GS-12
 rate.  She also ordered that the promotion of the person selected for
 the GS-11 position should be treated as a detail of that person.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Agency contends that the award is contrary
 to section 7106(a)(2)(C) of the Statute and FPM Chapter 335, subchapter
 1-4, Requirement 4, because it violates management's right to select
 from any available source when filling positions.  The Agency contends
 that the Arbitrator failed to make the required finding that the
 grievant would have been selected for the announced supervisory position
 if the Activity had not acted improperly and maintains that the mere
 finding that the grievant had reason to believe that he was promoted
 noncompetitively is not a sufficient basis for depriving management of
 its right to select.  The Agency also contends that the finding of a
 past practice by the Arbitrator does not provide a basis for interfering
 with management's right to select.  The Union contends in its opposition
 that the Activity exercised its right to select when it assigned
 supervisory duties to the grievant in October 1983.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency that the Arbitrator's order that the
 grievant resume supervisory duties with a promotion to GS-12 is contrary
 to section 7106(a)(2)(C) of the Statute and FPM Chapter 335.  The
 Authority has consistently 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. Naval Ordnance
 Station, Louisville, Kentucky and International Association of
 Machinists and Aerospace Workers, Local Lodge 830, 22 FLRA No. 36
 (1986).  It is necessary for arbitrators to reconstruct what the
 responsible selecting official would have done if the unwarranted agency
 action had not occurred and to find on the basis of that reconstruction
 that the responsible selection official would have selected the grievant
 but for the unwarranted actions.  Id.  The Authority has also held that
 no past practice may be established regarding the rights enumerated in
 section 7106(a) that would bind management to the particular manner in
 which it had exercised those rights in the past so as to preclude
 management from otherwise exercising those rights.  National Association
 of Government Employees, Local R1-25 and Brockton/West Roxbury V.A.
 Medical Center, 21 FLRA No. 16 (1986).
 
    In this case the Arbitrator did not find based on a reconstruction of
 the promotion action that the grievant would have been promoted to the
 announced supervisory position.  Rather, she only found that the
 grievant should have been promoted because he had a reasonable
 expectation of noncompetitive promotion based on the past practice in
 which supervisory duties and training were given to employees without
 competitive promotion to an officially classified supervisory position.
 This does not constitute the necessary finding that the grievant would
 have been selected for the position of Illustration Supervisor, GS-11 or
 GS-12, for which the Activity selected another employee.  Further, the
 Arbitrator cannot use the past practice of assigning supervisory duties
 as a basis for finding that the grievant would have been selected for
 the position.  The award is deficient in this regard and must be
 modified.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the award is contrary to section
 7106(a)(2)(B) of the Statute.  Specifically, the Agency contends that by
 ordering the Activity to "resume (assigning to the grievant) the duties
 for which he was trained," the Arbitrator's award violates management's
 right to assign work.  The Union disputes this contention and maintains
 that the Activity exercised its right to assign work when it followed
 the practice of assigning supervisory duties without establishing an
 officially classified supervisory position.
 
                       B.  Analysis and Conclusions
 
    We find that to the extent that the award requires the Activity to
 restore to the grievant those supervisory duties wh