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 2 FLRA No. 37
 
 DEFENSE ELECTRONICS SUPPLY
 CENTER, DAYTON, OHIO
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS AND AEROSPACE
 WORKERS, LOCAL LODGE 2284
 
                                            FLRC No. 78A-110
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE GRIEVANT
 WAS NOT SELECTED FOR PROMOTION TO PACKER LEADER WL-6 AT THE DEFENSE
 ELECTRONICS SUPPLY CENTER, DAYTON, OHIO (THE ACTIVITY).  THE PARTIES
 STIPULATED THAT THE GRIEVANT WAS ENTITLED TO PRIORITY CONSIDERATION FOR
 PROMOTION BECAUSE HE HAD HELD THE POSITION OF PACKER LEADER BEFORE HE
 WAS DEMOTED IN 1962 DURING A REDUCTION-IN-FORCE.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR INTERPRETED AGENCY REGULATIONS /1/ AS REQUIRING
 PRIORITY CONSIDERATION FOR ANY CANDIDATE FOR PROMOTION WHO FORMERLY HELD
 THE HIGHER GRADE AND WHO WAS NOT REDUCED IN GRADE FOR REASONS OF
 EFFICIENCY OR ABILITY.  THE ARBITRATOR FOUND THAT THE GRIEVANT WAS THE
 ONLY PRIORITY REFERRAL CANDIDATE FOR THE JOB AT ISSUE, AND THEREFORE WAS
 ENTITLED TO FIRST CONSIDERATION FOR THE APPOINTMENT.  HE HELD THAT THE
 REASONS GIVEN FOR THE NONSELECTION OF THE GRIEVANT, THAT HE "DOES NOT
 MANIFEST THE AGGRESSIVENESS, ENTHUSIASM, AND IMAGINATION ESSENTIAL TO
 SUCCESS AS A PACKER LEADER," IGNORED THE GRIEVANT'S PAST EXPERIENCE AND
 TRAINING.  HE FURTHER FOUND THAT THESE REASONS DID NOT "SOUND IN THE
 LANGUAGE RELATING TO JOB PERFORMANCE OF A PACKER" AS REQUIRED BY THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT.  FINALLY, THE ARBITRATOR
 CONCLUDED THAT THE "PERSUASIVE FACTOR" IN HIS DISPOSITION OF THE ISSUE
 WAS "THE CLEAR AND UNAMBIGUOUS LANGUAGE OF BOTH THE (AGENCY) REGULATION
 AND THE NEGOTIATED AGREEMENT THAT CLEARLY CIRCUMSCRIBES THE RIGHT OF
 MANAGEMENT TO APPOINT ANY CANDIDATE OTHER THAN A PRIORITY REFERRAL WHEN
 THERE IS AN ELIGIBLE PRIORITY REFERRAL CANDIDATE."
 
    AS HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE, HOLDING THAT
 THE GRIEVANT WAS ENTITLED TO APPOINTMENT AS PACKER LEADER WL-6
 RETROACTIVE TO THE DATE OF HIS GRIEVANCE, WITH BACKPAY.
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
 PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
 APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW WHICH TOOK EXCEPTION TO THE
 AWARD ON THE GROUND THAT THE AWARD VIOLATES APPLICABLE LAW AND
 APPROPRIATE REGULATION.  ALSO, PURSUANT TO SECTION 2411.47(F) OF THE
 AMENDED RULES, THE AUTHORITY GRANTED THE AGENCY'S REQUEST FOR A STAY OF
 THE AWARD PENDING DETERMINATION OF THE APPEAL.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS.
 
    AS PREVIOUSLY NOTED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR
 REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION WHICH ALLEGED THAT THE
 AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.  BECAUSE THIS
 CASE INVOLVED A MATTER FOR WHICH THE CIVIL SERVICE COMMISSION WAS
 RESPONSIBLE FOR PRESCRIBING REGULATIONS, AND SINCE UNDER SECTION 902(B)
 OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST
 BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
 AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE
 SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE
 MATTERS INVOLVED HEREIN) AN INTERPRETATION OF PERTINENT CIVIL SERVICE
 COMMISSION REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD IN THIS
 CASE.  THE RESPONSE OF THE OFFICE OF PERSONNEL MANAGEMENT IS SET FORTH
 BELOW IN RELEVANT PART:
 
    THE GRIEVANT IN THIS CASE, A REPROMOTION ELIGIBLE, ALLEGED THAT THE
 AGENCY VIOLATED THE PARTIES' NEGOTIATED AGREEMENT BY PROMOTING AN
 EMPLOYEE OTHER THAN THE GRIEVANT IN FILLING A POSITION.  SPECIFICALLY,
 THE GRIEVANT AND THE UNION ARGUED THAT THE AGENCY DID NOT ACCORD THE
 GRIEVANT THE "PRIORITY OF SELECTION TO WHICH HE WAS ENTITLED" BY TERMS
 OF PARTIES' NEGOTIATED AGREEMENT AND THE AGENCY REGULATION WHICH WAS
 INCORPORATED BY REFERENCE IN THE AGREEMENT.  THE ARBITRATOR RULED THAT
 THE LANGUAGE OF BOTH THE REGULATION AND THE NEGOTIATED AGREEMENT
 "CLEARLY CIRCUMSCRIBES" THE AGENCY'S RIGHT TO SELECT ANY CANDIDATE OTHER
 THAN AN ELIGIBLE PRIORITY REFERRAL IN FILLING A POSITION.  ACCORDINGLY,
 THE ARBITRATOR ORDERED THE GRIEVANT IMMEDIATELY PROMOTED TO THE POSITION
 OF PACKER LEADER, WL-6, WITH AN AWARD OF BACK-PAY RETROACTIVE TO THE
 DATE OF THE GRIEVANCE.
 
    TWO PROVISIONS OF FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 335 WHICH
 WERE IN EFFECT DURING THE TIME OF THE PROMOTION ACTION AND OF THE
 ARBITRATOR'S AWARD ARE APPLICABLE TO THIS CASE.  REQUIREMENT 1 OF
 SUBCHAPTER 2, OBLIGATES AN AGENCY TO GIVE NON-COMPETITIVE CONSIDERATION
 TO CANDIDATES ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION, SUCH AS
 THE GRIEVANT, BEFORE COMPETITIVE PROCEDURES ARE USED TO FILL A POSITION.
  SUBCHAPTER 4-3C. (2) OF THE SAME FPM CHAPTER DEFINES SPECIAL
 CONSIDERATION AS FOLLOWS:
 
    "(2) SPECIAL CONSIDERATION FOR REPROMOTION.  AN EMPLOYEE DEMOTED
 WITHOUT PERSONAL CAUSE IS
 
    ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION IN THE AGENCY IN
 WHICH HE WAS
 
    DEMOTED.  ALTHOUGH HE IS NOT GUARANTEED REPROMOTION, ORDINARILY HE
 SHOULD BE REPROMOTED WHEN A
 
    VACANCY OCCURS IN A POSITION AT HIS FORMER GRADE . . . FOR WHICH HE
 HAS DEMONSTRATED THAT HE
 
    IS WELL QUALIFIED, UNLESS THERE ARE PERSUASIVE REASONS FOR NOT DOING
 SO.  CONSIDERATION OF AN
 
    EMPLOYEE ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION MUST
 PRECEDE EFFORTS TO FILL THE
 
    VACANCY BY OTHER MEANS . . . IF A SELECTING OFFICIAL CONSIDERS AN
 EMPLOYEE ENTITLED TO SPECIAL
 
    CONSIDERATION FOR REPROMOTION UNDER THIS PARAGRAPH BUT DECIDES NOT TO
 SELECT HIM FOR PROMOTION
 
    AND THEN THE EMPLOYEE IS CERTIFIED TO THE OFFICIAL AS ONE OF THE BEST
 QUALIFIED UNDER
 
    COMPETITIVE PROMOTION PROCEDURES FOR THE SAME POSITION, THE OFFICIAL
 MUST STATE HIS REASONS
 
    FOR THE RECORD IF HE DOES NOT THEN SELECT THE EMPLOYEE.
 
    IT IS CLEAR THAT THE ABOVE CITED PROVISIONS OF THE FPM REQUIRE A
 SELECTING OFFICIAL TO GIVE SPECIAL CONSIDERATION TO A REPROMOTION
 ELIGIBLE BEFORE CONSIDERING ANY OTHER CANDIDATE TO FILL A POSITION.
 HOWEVER, WHILE THESE PROVISIONS STRONGLY ENCOURAGE THE PROMOTION OF
 ELIGIBLE "SPECIAL CONSIDERATION" CANDIDATES, THEY DO NOT GUARANTEE OR
 MANDATE THE SELECTION OF SUCH CANDIDATES.  /2/ THEREFORE, THIS CHAPTER
 MAY NOT BE THE BASIS OF AN ARBITRATOR'S AWARD DIRECTING THAT A
 PARTICULAR CANDIDATE BE SELECTED FOR A POSITION.
 
    THE ARBITRATOR'S AWARD IS BASED ON LANGUAGE IN THE NEGOTIATED
 AGREEMENT AND THE REFERENCED AGENCY REGULATION WHICH IS SIMILAR IN MANY
 RESPECTS TO THAT CITED ABOVE.  IF THAT LANGUAGE WAS INTERPRETED TO
 REQUIRE THE PROMOTION OF THE GRIEVANT IN THE CIRCUMSTANCES OF THIS CASE,
 IT IS IN CONFLICT WITH THE FPM.  PERTINENT HERE IS REQUIREMENT 6,
 SUBCHAPTER 2 OF FPM CHAPTER 335, WHICH SETS FORTH THE RIGHT OF A
 MANAGEMENT OFFICIAL TO SELECT OR NON-SELECT.  THIS RIGHT, DERIVED FROM
 RULE 7.1 OF THE CIVIL SERVICE RULES, RESERVES TO MANAGEMENT THE
 DISCRETION TO DECIDE, WITHOUT INTERFERENCE, WHICH CANDIDATE IT WILL
 SELECT FROM AMONG THOSE REFERRED FOR A GIVEN POSITION UNDER ESTABLISHED
 PROCEDURE.  SUBCHAPTER 3-7C. DESCRIBES THE ACTION TO BE TAKEN BY THE
 SELECTING OFFICIAL AS FOLLOWS:
 
    C.  ACTION BY THE SELECTING OFFICIAL.  SELECTING OFFICIALS ARE
 ENTITLED TO MAKE THEIR
 
    SELECTIONS FROM ANY OF THE CANDIDATES ON A PROMOTION CERTIFICATE,
 WHETHER OR NOT THE
 
    CANDIDATES ARE PRESENTED IN RANK ORDER, BASED ON THEIR JUDGMENT OF
 HOW WELL THE CANDIDATES
 
    WILL PERFORM IN THAT PARTICULAR JOB BEING FILLED AND, WHEN RELEVANT,
 WHAT THEIR POTENTIAL IS
 
    FOR FUTURE ADVANCEMENT. SELECTING OFFICIALS ARE NOT REQUIRED,
 HOWEVER, TO SELECT SOMEONE FROM
 
    THE PROMOTION CERTIFICATE . . .
 
    BASED ON THESE PROVISIONS IT IS CLEAR THAT THE PARTIES COULD NOT
 APPROPRIATELY HAVE AGREED TO REQUIRE THE SELECTION OF ANY ONE PARTICULAR
 CANDIDATE OVER ANOTHER, OR TO SUBJECT THE SELECTING OFFICIAL'S DECISION
 IN THIS REGARD TO REVIEW BY A THIRD-PARTY.  TO DO SO WOULD CONTRAVENE
 MANAGEMENT'S RIGHT TO DECIDE WHETHER TO SELECT OR NON-SELECT CANDIDATES
 IN FILLING POSITION VACANCIES.  HENCE, THE ARBITRATOR'S REQUIREMENT THAT
 THE GRIEVANT BE SELECTED, BASED ON HIS CONCLUSION THAT THE LANGUAGE OF
 THE AGREEMENT AND THE APPLICABLE AGENCY REGULATION CIRCUMSCRIBES
 MANAGEMENT'S RIGHT TO TO SELECT ANYONE OTHER THAN A SPECIAL
 CONSIDERATION CANDIDATE, VIOLATES CIVIL SERVICE RULES AND REGULATIONS.
 
    THE ARBITRATOR ALSO AWARDED THE GRIEVANT RETROACTIVE PROMOTION WITH
 BACK-PAY.  THE ONLY CIRCUMSTANCES IN WHICH AN AGENCY MAY BE REQUIRED TO
 PROMOTE A PARTICULAR PERSON AND ACCORD HIM BACK-PAY IS WHEN AN
 ARBITRATOR OR OTHER COMPETENT AUTHORITY FINDS THAT SUCH PERSON WOULD
 HAVE BEEN PROMOTED AT A GIVEN TIME BUT FOR AN ADMINISTRATIVE ERROR, A
 VIOLATION OF A COMMISSION OR AGENCY REGULATION, OR OF A PROVISION IN A
 NEGOTIATED AGREEMENT.  THIS PRINCIPLE HAS BEEN SET FORTH IN A SERIES OF
 COMPTROLLER GENERAL DECISIONS, ALL NUMBERED B-1800-10 AND ISSUED ON AND
 AFTER OCTOBER 31, 1974, WHICH DEAL WITH RETROACTIVE PROMOTION.  THE
 ARBITRATOR IN THIS CASE FOUND THAT THE AGREEMENT HAD BEEN VIOLATED, BUT
 DID NOT DIRECTLY ADDRESS THE QUESTION OF WHETHER THE GRIEVANT WOULD HAVE
 BEEN PROMOTED BUT FOR THE VIOLATION OF THE AGREEMENT AND AGENCY
 REGULATION.  IF HE ASSUMED THIS TO BE THE CASE, HIS ASSUMPTION WAS BASED
 ON AN INTERPRETATION OF THESE DOCUMENTS WHICH CONFLICTS WITH APPLICABLE
 CIVIL SERVICE COMMISSION RULES AND REGULATIONS.
 
    IN THE ABSENCE OF A FINDING THAT THE GRIEVANT WOULD HAVE BEEN
 PROMOTED BUT FOR THE AGENCY'S VIOLATION OF THE AGREEMENT AND THE AGENCY
 REGULATION, THE ARBITRATOR'S AWARD OF IMMEDIATE PROMOTION WITH BACK-PAY
 RETROACTIVE TO THE DATE OF THE GRIEVANCE IS IMPROPER AND HENCE,
 UNENFORCEABLE.
 
    BASED ON THE CONSIDERATIONS DISCUSSED ABOVE, WE FIND THAT
 IMPLEMENTATION OF THE ARBITRATOR'S AWARD WOULD VIOLATE BINDING
 COMMISSION DIRECTIVES AND CONTROLLING COMPTROLLER GENERAL DECISIONS.
 
    BASED UPON THE FOREGOING DECISION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE FIND THAT THE ARBITRATOR'S AWARD, HOLDING THAT THE
 GRIEVANT IS ENTITLED TO RETROACTIVE APPOINTMENT TO THE POSITION OF PACK
 LEADER WL-6, WITH BACK PAY, VIOLATED APPROPRIATE REGULATIONS AND MUST BE
 SET ASIDE.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 AMENDED RULES OF PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD /3/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    /1/ THE ARBITRATOR CITES THE FOLLOWING AGENCY REGULATION, IN RELEVANT
 PART:
 
    DESCR 1404.2 MERIT PROMOTION AND IN-SERVICE PLACEMENT PROGRAM
 
    VI.  PROCEDURES
 
   *          *          *          *
 
 
    E.  RANKING, REFERRAL, AND SELECTION OF CANDIDATES
 
    1.  CANDIDATES WILL BE LISTED ON THE MERIT PROMOTION ROSTER IN THE
 FOLLOWING ORDER:
 
    A.  PRIORITY REFERRAL CANDIDATES WILL BE LISTED FIRST, UNRANKED BUT
 IN ALPHABETICAL ORDER.
 
    B.  BELOW THE PRIORITY REFERRAL CANDIDATES, RANKED CANDIDATES,
 INCLUDING PROMOTION, REASSIGNMENT, AND DOWNGRADE CANDIDATES, WILL BE
 LISTED IN RANK ORDER OF THEIR TOTAL POINTS ACHIEVED ON THE RANKING
 FACTORS.  PRIORITY REFERRAL CANDIDATES WILL ALSO BE EVALUATED IN TERMS
 OF THE RANKING FACTORS AND WILL BE LISTED IN RANK ORDER AMONG THESE
 CANDIDATES.
 
   *          *          *          *
 
 
    4.  EXCEPT AS INDICATED IN PARAGRAPH VI E 6 OF THIS DESCR, ALL
 UNRANKED PRIORITY REFERRAL CANDIDATES WILL BE CERTIFIED TO THE SELECTING
 SUPERVISOR FOR CONSIDERATION BEFORE RANKED CANDIDATES ARE CERTIFIED.
 ALTHOUGH THE SELECTING SUPERVISOR IS NOT REQUIRED TO SELECT A PRIORITY
 REFERRAL CANDIDATE, IT IS EXPECTED THAT SUCH A CANDIDATE WILL BE
 SELECTED UNLESS THERE ARE PERSUASIVE REASONS FOR NOT DOING SO.  IF THE
 SELECTING SUPERVISOR HAS SUCH REASONS, HE MAY VERBALLY INFORM DESC-KE OF
 THESE REASONS AND REQUEST CERTIFICATION OF RANKED CANDIDATES.  HOWEVER,
 IF A PRIORITY REFERRAL CANDIDATE IS CERTIFIED TO A SELECTING SUPERVISOR
 AS A RANKED CANDIDATE, THE SELECTING SUPERVISOR MUST SUBMIT HIS REASONS
 IN WRITING THROUGH THE DIRECTOR, HEAD OF PRINCIPAL STAFF ELEMENT OR
 TENANT SERVICED TO DESC-K IF HE DOES NOT THEN SELECT THE CANDIDATE.
 
    /2/ IN KIRK ARMY HOSPITAL, FLRC NO. 72A-18, THE COUNCIL HAD OCCASION
 TO CITE FPM SUBCHAPTER 4-3C. (2) OF CHAPTER 335 AND COMMENTED THAT "WITH
 RESPECT TO THE REPROMOTION RIGHTS OF SUCH EMPLOYEES, THE FPM PLAINLY
 STATES THAT, EVEN THOUGH THEY ARE ENTITLED TO 'SPECIAL CONSIDERATION',
 THEY ARE 'NOT GUARANTEED PROMOTION." IN OTHER WORDS, A SELECTING
 OFFICIAL." SEE ALSO COMMISSION OPINIONS IN WARREN AIR FORCE BASE, FLRC
 NO. 75A-127, AND TOOELE ARMY DEPOT, FLRC NO. 75A-104.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

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