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57 FLRA No. 130
AFGE, Local 1658 and U.S. Dept. of the Army, Army Tank-automotive Command and Armaments Command, Warren, Michigan (Sugerman, Arbitrator), 0-AR-3404 (Decided December 21, 2001)
This case concerned a grievant's non-selection for a job vacancy. The Arbitrator found that absent a showing of impropriety in the selection process, a grievance alleging non-selection for promotion is not grievable under the parties' collective bargaining agreement. The Arbitrator examined the Union's allegations that the selection process was improper, and found no merit to the allegations. He therefore concluded that the case was solely about the grievant's non-selection, and granted the Agency's motion to dismiss the grievance on the ground that it was not arbitrable.
The Authority found that the Union failed to show that the award was deficient under § 7122(a) of the Statute. The Authority found that the Union's allegation that the award was contrary to 5 U.S.C. § 2302(b)(6) was without merit. The Authority explained that a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(6) requires an intentional or purposeful taking of a personnel action in such a way as to give preference to a particular individual for the purpose of improving her prospects for employment. Section 2302(b)(6) does not require that an unauthorized promotion actually result in an advantage, but only that the purpose of the personnel action be to give an advantage. Where an arbitrator finds that there is no evidence indicating that the agency's consideration of an applicant was the result of a personnel action intended to give the applicant a preference, the Authority will hold that the award is not contrary to § 2302(b)(6). The Authority also rejected the allegations that the award failed to draws its essence from the agreement, that it was based on a nonfact, or that the Arbitrator was biased.