[ v26 p250 ]
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 which he previously performed, it is contrary to the right to assign work under section 7106(a)(2)(B). The Authority has held consistently that arbitration awards may not interfere with or deny the authority of an agency to exercise its rights under section 7106 or substitute the judgment of the arbitrator for that of the agency in the exercise of those rights. For example, American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, 21 FLRA No. 56 (1986). In this case, the part of the award which requires "that the (g)rievant should resume the duties for which he was trained" restricts the right of the Activity to assign the grievant other duties and substitutes the judgment of the Arbitrator for that of the Activity as to which duties will be assigned to the grievant. Therefore the award is deficient under section 7106(a)(2)(B). V. THIRD EXCEPTION A. Contentions The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because it requires backpay for the performance of supervisory duties for two years and three months, which includes a time prior to the official establishment of a supervisory position. The Agency concedes that the grievant could be entitled to backpay from July 24, 1985, when a supervisory position was established and classified, until January 12, 1986, when another employee was selected to fill the position. The Union argues that a supervisory position was in existence prior to that time and the grievant was entitled to backpay for filling that supervisory position. B. Analysis and Conclusions We agree with the Agency that the award is contrary to the Back Pay Act. The record in the case shows, contrary to the Union's contention, that a supervisory position was not established until July 24, 1985. The Arbitrator found that the grievant was performing supervisory duties as the result of longstanding past practice and that he was never detailed to an official position. The Authority has held that under the terms of the Back Pay Act and under the U.S. Supreme Court's decision in United States v. Testan, 424 U.S. 392 (1976), a retroactive promotion with backpay to a position is not authorized for any period before the position is actually classified. See Service Employees International Union and Veterans Administration Medical Center, 10 FLRA 49 (1982). Therefore, the most that the Arbitrator could have awarded the grievant in this case was a retroactive temporary promotion with backpay at the GS-12 rate for the period July 24, 1985 to January 12, 1986. To the extent that the award provides otherwise, it is deficient. VI. FOURTH EXCEPTION A. Contentions The Agency excepts to that portion of the award which directs that "(t)he 'promotion' of (the employee selected for the Illustration Supervisor, GS-11 position) should be treated as a detail with appropriate forms entered into his official personnel file." The Agency maintains that this portion of the award is contrary to the FPM because it requires the person selected to be removed from the position without a finding by the Arbitrator that the person could not properly have been selected for the position. The Union contends that if the Activity had followed correct procedures the grievant would have been selected and the other employee would not have qualified for the position. B. Analysis and Conclusions We agree with the Agency. The Authority has held in cases such as this one that the incumbent employee is entitled under FPM Chapter 335, appendix A, section A-4b to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been properly selected. American Federation of Government Employees, Local 1546 and Sharpe Army Depot, Department of the Army, Lathrop, California, 16 FLRA 1122 (1984). In this case, the Arbitrator made no finding that the person selected for the position of Illustrator Supervisor, GS-11 could not have been selected if the Activity had followed proper procedures. The Arbitrator found only that the grievant had the right to believe that he had been promoted based on performance of supervisory duties under the past practice, which we have held to be an insufficient basis for ordering that he be selected. Therefore, in the absence of the required showing that the selection of the person chosen for the GS-11 position was defective, the award is deficient to this extent as contrary to FPM Chapter 335, appendix A, section A-4. VII. DECISION For the above reasons, the Arbitrator's award is modified to read as follows: The grievance is granted. The grievant shall be given a retroactive temporary promotion with backpay to the position of Illustration Supervisor, GS-12 for the period July 24, 1985 to January 12, 1986. /*/ Issued, Washington, D.C., March 17, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In view of this decision, it is not necessary to address the Agency's remaining exception.