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51:1777(150)AR - - Philadelphia Naval Shipyard, Philadelphia, PA and Planners, Estimators, Progressmen and Schedulers Union, Local 2 - - 1996 FLRAdec AR - - v51 p1777

[ v51 p1777 ]
The decision of the Authority follows:

51 FLRA No. 150
















July 31, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis E. Seltzer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ordered the Agency to temporarily promote for a 4-month period each of eight grievants to the Supervisory Production Controller position which the Arbitrator previously had found that the Agency improperly filled.

For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute because it is contrary to law, and we modify the award accordingly.

II. Background and Arbitrator's Award

The grievants are GS-11 and GS-12 Production Controllers. After the Agency assigned a particular Production Controller (hereinafter, the selectee) to a GS-12 Supervisory Production Controller position, the Union filed a grievance, alleging that the Agency's action violated the parties' collective bargaining agreement and Agency regulations.

The grievance ultimately led to three arbitration awards: an initial award by Arbitrator Daniel F. Brent (Brent Award), and two subsequent awards by Arbitrator Seltzer on a related grievance. The Seltzer awards encompasses an award on the merits (Seltzer Award I) and a remedy award (Seltzer Award II). The exceptions now before the Authority were filed to Seltzer Award II.

Arbitrator Brent held that the assignment of the selectee to the supervisory position was a "detail," and that the Agency violated Article 13, section 14 of the agreement(1) and an Agency regulation by detailing the selectee without posting the detail and soliciting volunteers for it.(2) Arbitrator Brent concluded that because of the Agency's improper action, at least one of the grievants was deprived of training and the opportunity to serve temporarily in the supervisory position. Arbitrator Brent also concluded that the Agency conferred on the selectee a substantial advantage for permanent promotion to the supervisory position. He ordered that the detail of the selectee be considered null and void and ordered that the selectee "enjoy no advantage arising from her improper temporary detail . . . when her suitability for permanent promotion is reviewed." Brent Award at 12. No exceptions were filed to the Brent Award.

At the conclusion of the selectee's disputed detail, the Agency permanently reassigned her to the supervisory position.(3) The Union grieved the permanent reassignment. In Seltzer Award I, Arbitrator Seltzer sustained the grievance, concluding that the Agency's action violated Arbitrator Brent's award. Specifically, Arbitrator Seltzer concluded that because Arbitrator Brent had determined that the temporary assignment was improper, it would be illogical to conclude that the permanent assignment was proper. Arbitrator Seltzer also concluded that the selectee's promotional opportunities had been enhanced by the initial temporary assignment. Arbitrator Seltzer retained jurisdiction pending the parties' negotiations to effect a remedy.

After the parties were unable to reach an agreement regarding a remedy, Arbitrator Seltzer issued Award II. Therein, Arbitrator Seltzer concluded that there was "no way for the Arbitrator to determine which employee should have been selected for the permanent position had the Agency followed proper procedures." Seltzer Award II at 5. Arbitrator Seltzer determined that "the only way to resolve that question" was "to compel the Agency to provide fair and open competition among the Grievants." Id.

As his award, Arbitrator Seltzer ordered that the Agency remove the selectee from the permanent supervisory position. In addition, Arbitrator Seltzer ordered the Agency to permit each of the individual grievants to occupy the supervisory position on a rotating basis on details of 4 months, and to pay the GS-11 grievants GS-12 pay for the period of their details to the GS-12 supervisory position. Finally, Arbitrator Seltzer ordered that the permanent position be filled by "open and fair competition." Id. at 6.

III. Exceptions

A. Agency's Contentions

The Agency argues that the award interferes with management's right to select and assign employees, under section 7106(a) of the Statute, by precluding management from determining whether the grievants meet the minimum qualifications required by the Agency for placement in the supervisory position.(4) In addition, the Agency argues that the award interferes with management's right to select because the Arbitrator did not find that, absent management's improper action, one or more of the grievants would have been permanently or temporarily assigned to the supervisory position. The Agency further argues that the award cannot be viewed as enforcing a provision of the parties' agreement because the award makes no finding of a violation of a provision in the negotiated agreement.

B. Union's Opposition

The Union argues that, the Agency engaged in prohibited personnel practices under 5 U.S.C. § 2302(b),(5) and, as a result, the Arbitrator was vested with broad equitable powers to fashion a remedy. Similarly, the Union argues that the Agency incorrectly characterized Arbitrator's Seltzer's first award as being based on the Agency's failure to follow Arbitrator Brent's award. According to the Union, Arbitrator Seltzer based his award on the Agency's violation of "federal statute" and the Agency's engaging in "blatant and wholesale prohibited personnel practices." Opposition at 2.

IV. Analysis and Conclusions

At the outset, we conclude that Seltzer Award II constituted the enforcement of the provision of the parties' agreement originally enforced by Arbitrator Brent. In this regard, Arbitrator Seltzer specifically stated that "Arbitrator Brent and I have already determined that the Agency committed infractions of the contract in making [the selectee] a temporary and then a permanent Supervisory Production Controller." Seltzer Award II at 3. No other violation was implicitly or explicitly found by either Arbitrator Seltzer or Arbitrator Brent. In particular, there is no suggestion in the record that either Arbitrator Seltzer or Arbitrator Brent found that, as the Union argued, the Agency's actions constituted a prohibited personnel practice.

We also find that the award affects management's right to assign employees under section 7106(a)(2)(A) of the Statute. That right encompasses permanent as well as temporary assignments, including details. E.g., American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 612-13 (1980), aff'd as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). The right to assign employees also encompasses the right to determine the qualifications and skills needed to perform the work of a position or assignment, including job-related individual characteristics such as judgment and reliability, and the right to determine whether individual employees meet those qualifications. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884, 907 (1993), affirmed, 46 F.3d 73 (D.C. Cir. 1995).

Although Arbitrator Seltzer made no findings regarding the qualifications of the grievants, Arbitrator Brent found that "all of the grievants satisfied the minimum qualifications for the vacancy." Brent Award at 6. However, the right to assign employees includes the right to decide among qualified employees in filling the position, not just the right to determine whether the minimum qualifications are met. See American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 48 FLRA 489, 496 (1993). Thus, Arbitrator Seltzer's award affects management's right to determine the grievants' qualifications for the supervisory position and, thereby, its right to assign employees under section 7106(a)(2)(A) of the Statute.

In U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (VA Birmingham) the Authority stated that in resolving whether an arbitral remedy enforcing a contractual provision is deficient as inconsistent with a management right, the Authority will determine whether such remedy reflects a reconstruction of what management would have done if it had acted properly. In VA, Birmingham, the Authority concluded that the award constituted the reconstruction of what the agency would have done had it not violated a provision of the parties' agreement that constituted a contractual arrangement under Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). Accordingly, the Authority concluded that the award was not contrary to management's rights.

Applying VA, Birmingham here, we find it unnecessary to determine whether the provision that the Agency was found to have violated -- Article 13, Section 14 -- constitutes an arrangement under Customs Service, or is otherwise enforceable under the Statute, because, even if it is enforceable, the award does not constitute a reconstruction of what the Agency would have done had it not violated that provision.

Article 13, Section 14 contains requirements concerning, among other things, solicitation and consideration of volunteers for details and the use of reverse seniority as a method of selection of employees if there are insufficient volunteers. The provision does not require sequential details of applicants for positions and does not speak to the use of such details in lieu of permanent assignments. Moreover, Arbitrator Seltzer did not find that the Agency would have assigned each of the grievants to temporarily fill the supervisory position if it had not improperly promoted the selectee to the position. Consequently, the part of Arbitrator's Seltzer's award that orders the temporary assignments of the grievants is not based on a reconstruction of what management would have done if it had acted in accordance with Article 13, Section 14.

Based on the foregoing, the portion of Seltzer Award II ordering the temporary assignments of the grievants is deficient under section 7122(a)(1) of the Statute as contrary to management's right to assign employees under section 7106(a)(2)(A). We modify the award accordingly. See, e.g., U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 51 FLRA 379, 383 (1995).

In reaching this decision we reject the Union's claim that the award nevertheless is lawful under 5 U.S.C. § 2302(b). As noted previously, there has been no finding by either Arbitrator Brent or Arbitrator Seltzer that the Agency committed a prohibited personnel practice. Moreover, the Union offers no authority, and none is apparent, for its conclusions that, even if the Arbitrator found that the Agency committed a prohibited personnel practice, that fact would support a conclusion that the award is not deficient under section 7122(a)(1) of the Statute.

V. Decision

The award is modified to strike the provision requiring the Agency to rotate each of the grievants into the supervisory position.

(If blank, the decision does not have footnotes.)

1. Article 13, entitled Promotions - Details - Reassignments provides in section 14 as follows:

Section 14: A detail is the temporary assignment of an employee to duties outside his/her official position description. When details become necessary, the Employer will notify the Union of the number of details, duration and area of details. The Employer agrees to solicit for and consider volunteers as the initial means to satisfy the requirements. Should this measure fail to provide suitable details, selections will be made among qualified and available employees using the reverse seniority method. The Employer agrees to apply the principle of fair rotation among available employees with necessary skill requirements. Details will not be made solely to provide training and experience that will enhance an employee's promotion opportunities.

Brent Award at 5.

2. The Agency regulation found to have been violated by Arbitrator Brent was not quoted in Arbitrator Brent's award or addressed by either Arbitrator Seltzer or the Agency in its exceptions. Accordingly, it will not be discussed further in this decision.

3. Arbitrator Brent noted that the position had been filled permanently, and that a grievance had been filed concerning the permanent assignment. However, Arbitrator Brent concluded that the propriety of that action was beyond his jurisdiction.

4. Although the Agency acknowledges that the right to select applies to promotions, the Agency argues that the right should be extended to "filling positions through other means, such as a lateral reassignment." Exceptions at 6.

5. Specifically, the Union asserts that the Agency violated 5 U.S.C. § 2302(b)(4), (6), (8), (9) and (11) which provide as follows:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-

. . . .

(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;

. . . .

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment . . . for the purpose of improving or injuring the prospects of any particular person for employment;

. . . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of . . . disclosure of information by an employee or applicant . . . .

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of . . . the exercise of any appeal, complaint or grievance right . . . .

. . . .

(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.