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56 FLRA No. 192
Social Security Administration, Chicago regionCleveland, Ohio District Office, University Circle Branch and AFGE, Local 3348 (Dworkin, Arbitrator), 0-AR- 3303 (Decided January 31, 2001)
The Arbitrator sustained a grievance alleging that the Agency failed to afford the grievant her priority consideration rights. The Arbitrator ordered that the grievant be appointed to the next appropriate vacancy, and that the Agency pay the grievant the difference between what she earned in her current position and what she would have earned if her priority bid had been granted. The Arbitrator also stated that the monetary aspects of the award may be reduced by application of the Back Pay Act. The Authority denied the Agency's exceptions.
The Authority rejected the contention that the award failed to draw its essence from the agreement. The Authority noted that the Agency's exception did not establish that the Arbitrator's application of the eligibility requirement was implausible, irrational, or in manifest disregard of the parties' agreement.
The Authority also concluded that the award was not contrary to law and Government-wide regulation. The Authority noted that where the law in question concerns management's rights under § 7106(a) of the Statute, the Authority applies the framework set forth in BEP, 53 FLRA 146. However, here, the Authority found that it was not necessary to apply BEP because it found that the fact that the Arbitrator required the Agency to support its determination that the grievant was unqualified did not in and of itself affect management's rights under § 7106 of the Statute.
Here, the Arbitrator found that the selecting official's faulty use of the evidence undermined his determination that the grievant was unqualified. The Authority held that such review, did not affect management's right to select under section 7106(a)(2)(C) of the Statute. Consequently, the Authority rejected the Agency's arguments based on its claim that the grievant was unqualified.
Regarding the subject of backpay, since the Arbitrator ordered that the specified make whole relief be consistent with the Back Pay Act, the Authority concluded that the award required that the grievant's promotion be retroactive to that date. Construed in this manner, the award was not contrary to law.