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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 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.