58 FLRA No. 54

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator M.G. Ramon filed by the Agency under § 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 sustained a grievance concerning training and advancement. He awarded the grievant a promotion and backpay and ordered that the grievant be given the requested correspondence course.

      For the reasons that follow, we find that a portion of the award is contrary to law and we will set aside that portion.

II.     Background and Arbitrator's Award

      The grievant was the Tool Room Officer and was responsible for checking out tools and ensuring that they were returned when due. As relevant here, the grievant alleged that working the Tool Room had hampered her opportunity for training, and that she had been denied the right to bid on another job, thus hindering her chance for career advancement. The grievant alleged disparate treatment, because she had been denied the opportunity to take a self-study course, even though other staff had been given that course. When her grievance was not resolved, the matter was submitted to arbitration.

      The Arbitrator framed the issue as:

[w]as disparate treatment used by management against a staff member in regards to training, advancement, and also was the member unduly harassed? If so, what should the appropriate remedy be?

Award at 1.

      According to the Arbitrator, the grievant's position description states that the incumbent will "`act[ ] as Alternate Security Officer a couple of times a week.'" Id. at 8. The Arbitrator determined that the grievant had never worked as a security officer in the previous year. The Arbitrator also found that other staff had been permitted to take the self-study course, which was essential to performing the duties of the security officer. The Arbitrator was told that the grievant was scheduled to take the self study course in the next year, but the Arbitrator determined that there was no guarantee that the grievant would actually receive the training.

      Based on these matters, the Arbitrator sustained the grievance regarding the grievant's advancement. [n1]  The Arbitrator's award stated:

[w]ithin two weeks of receipt of this award the [g]rievant be given the Foley Belsaw correspondence course, be promoted to Security Officer in the Lock Shop and be paid all lost earnings regarding the difference in pay between the Tool Room and Lock Shop, if any, from the time the grievance was entered, until the [g]rievant is promoted to said position.

Id. at 9. [n2] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award affects management's right to select under § 7106 and must be assessed under the framework set forth by the Authority in United States Dep't of the Treasury, Bureau of Engraving [ v58 p211 ] and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP).

      The Agency asserts that the Arbitrator essentially promoted the grievant without any inquiry as to whether she was qualified for the position. The Agency contends that "enforcing the provisions in this manner, and denying management's right to determine qualifications, does not constitute a negotiable procedure" within the meaning of prong I of the BEP framework. Exceptions at 8. The Agency also argues that the award fails to demonstrate how the Arbitrator's application of a general fairness provision in Article 6 of the parties' agreement constitutes an appropriate arrangement for an employee affected by management's right to select when no selection for a security officer position is at issue. The Agency asserts that the award fails prong I.

      The Agency also contends that the award is deficient because it fails to satisfy prong II of the BEP framework. The Agency argues that the Arbitrator made no effort to explain how the grievant's promotion to a position that she had not applied for reconstructed what would have happened had she received the training course and performed occasional Alternate Security Officer duties.

      The Agency also contends that the award violates the Back Pay Act because the Arbitrator did not establish a causal relationship between the grievant's failure to receive the training course or serve occasionally as Alternate Security Officer and any loss of pay. According to the Agency, absent a finding of an unjustified or unwarranted personnel action by the Agency through which the grievant suffered a loss of pay, the award is contrary to the Back Pay Act.

      Finally, the Agency contends that the Arbitrator exceeded his authority by providing remedial relief beyond the scope of the matter submitted to arbitration. The Agency claims that neither the grievant nor the Union requested her promotion to a security officer position or asserted that her completion of training would automatically entitle her to such a position. Also, the Agency asserts that in framing the issue, the Arbitrator did not identify promotion as an issue. The Agency argues that by proceeding beyond the matters at issue and awarding the grievant a promotion to a position that she had not sought, the Arbitrator went beyond the issues as he had framed them and, thus, exceeded his authority.

B.     Union's Opposition

      The Union did not directly respond to the Agency's exceptions. The Union's opposition consists of a recitation of pertinent portions of the arbitration transcript which, the Union believes, support the award of a temporary promotion for the grievant, as proper compensation for the career advancement to which the grievant was entitled.

IV.     Analysis and Conclusions

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Nat'l Fed'n of Fed. Employees, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.  [n3] 

      When an agency asserts that an award conflicts with management's rights under § 7106(a) of the Statute, the Authority applies the framework set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). Upon a finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test. Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If the award provides such a remedy, then the Authority will find that the award satisfies prong I and will address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

      The Authority has held that an award requiring an agency to make an actual selection for an appointment affects management's right to select under § 7106(a)(2)(C) of the Statute. See AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (Authority held that an [ v58 p212 ] award which placed the grievant in a position affected management's right to select); United States Dep't of Health and Human Services, Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 302 (1993) (Authority found that an award ordering retroactive promotion of the grievants affected management's right to select). Here, the award orders the Agency to promote the grievant to Security Officer in the Lock Shop. Consequently, the award affects management's right to select.

      With regard to prong I, we will presume, without deciding, that the award satisfies prong I of the BEP analysis.

      Under prong II, the question is whether the Arbitrator's remedy, directing the Agency to promote the grievant, is a proper reconstruction of what the Agency would have done had it not violated the parties' agreement. In this case, the Union does not dispute the Agency's claim that there was no vacant Security Officer position and that the grievant never applied for promotion to any such position.

      The only basis the Arbitrator provides for the promotion part of his award is a portion of the grievant's position description that states that the incumbent will serve as the Alternate Security Officer a couple of times a week. However, the Arbitrator makes no connection between the quoted portion of the position description, the remedy sought in the grievance, and the promotion of the grievant to the Security Officer position he orders. The Arbitrator also provides no discussion of whether the grievant is qualified to perform the duties of the Security Officer position. Consequently, we find the remedy portion of the award deficient because it does not represent a proper reconstruction of what the Agency would have done had there been no violation. See United States Dep't of Def., Departments of the Army and the Air Force, Alabama Nat'l Guard, Northport, Ala., 55 FLRA 37, 41-42 (1998).

      Therefore, we will set aside that portion of the award promoting the grievant to the position of Security Officer. Because we have set aside that portion of the award, there is no backpay due the grievant, and we need not address the Agency's exception that the award is contrary to the Back Pay Act. In light of this decision, we also need not address the Agency's exception that the Arbitrator exceeded his authority.

V.     Decision

      We find that the award of a promotion for the grievant to the position of Security Officer is contrary to law because it interferes with management's right to select under § 7106(a)(2)(C) of the Statute. Accordingly, we set aside that portion of the award and the accompanying award of backpay. We leave undisturbed that portion of the award providing that the grievant be given the requested correspondence course.

   The Arbitrator found that other claims raised in the grievance were not substantiated. These other findings were not excepted to. Accordingly, these contentions will not be addressed further.

   No exception was raised to that portion of the award providing that the grievant be allowed to take the correspondence course, and we will not address it further.

   See also United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).