30:0779(90)AR - ACT and Pennsylvania NG -- 1987 FLRAdec AR

 30 FLRA NO. 90
 30 FLRA 776

 31 DEC 1987


ASSOCIATION OF CIVILIAN
TECHNICIANS

                   Union

      and

PENNSYLVANIA NATIONAL
GUARD

                   Agency

Case No. O-AR-1443

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator (Rev.) Edward J. Mullaly, S.J., filed by the
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. The Arbitrator found that the
Agency violated the collective bargaining agreement when it
failed to select the grievant for a position. The Union filed an
opposition to the Agency's exception. For the reasons stated
below, we find that the Arbitrator's award is deficient because
it interferes with management's right to select and therefore is
contrary to section 7106(a)(2)(C) of the Statute.

     II. Background and Arbitrator's Award

     The grievance in this case concerned the Agency's failure to
promote the grievant to the position of flight engineer. On
September 3, 1986, the Agency posted a Technician Vacancy
Announcement for the position of flight engineer. The grievant
applied for the job but was not selected. He was informed by
letter from the selecting official that in order to improve his
qualifications for future consideration he needed more training
in the aviation field and as a flight engineer. The grievant also
had been told that he needed to be in a compatible military unit
in order to be selected, but the letter from the selecting
official did not mention the noncompatibility issue as the reason
for the nonselection.

     A second job announcement was issued on December 17, 1986,
for the same position. The grievant and one other applicant
applied for the job. The other applicant withdrew from
consideration, and the grievant again was not selected. The
selecting official informed the grievant by letter of his
nonselection and stated that the grievant's performance did not
warrant selection of the grievant for the position. According to
the Agency, no selection has been made for the position in the
job announcements. The grievance proceeded to arbitration over
the issue of whether it was arbitrable and whether the Agency
violated the parties' collective bargaining agreement when it
failed to promote the grievant.

     The Arbitrator determined that the dispute was arbitrable
under the parties' agreement and that the Agency erred in not
selecting the grievant for the position. Specifically, the
Arbitrator found that the Agency's right to select involves the
implementation of the merit placement procedures in the parties'
agreement. He found that the grievant was qualified for the
position for which he applied and that the Agency erred in not
selecting the grievant for the position. The Arbitrator sustained
the grievance and directed the Agency to select the grievant for
the position.

     III. Exception

     The Agency contends that the award interferes with
management's right to select and therefore violates section
7106(a)(2)(C) of the Statute. The Agency argues that the
Arbitrator failed to establish that it took an improper action
that resulted in the grievant's nonselection. The Agency concedes
that it made procedural errors in the nonselection action, but
asserts that the errors did not relate to its substantive
decision not to select the grievant. Therefore, the Agency
contends that no direct causal connection exists between the
procedural errors and the decision to not select the grievant.

     The Union argues that the Arbitrator applied the "but for"
rationale in determining that the Agency improperly denied the
flight engineer position to the grievant. Therefore, the Union
argues that the Agency's exception should be denied. In the
alternative, the Union contends that if the exception is
sustained, the award should not be  set aside but should
be modified to require the Agency to rerun the selection process
and to grant the grievant priority consideration.

     IV. Discussion

     We agree with the Agency that the Arbitrator's award
directing the grievant to be selected for the position for which
he applied is contrary to section 7106(a)(2)(C) of the Statute.
Management's right under the Statute to make selections for
promotion can be abridged by an award of an arbitrator only 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  382 (1986). In order to require an
agency to select a particular employee for a promotion, an
arbitrator must reconstruct what the responsible selecting
official would have done if the unwarranted agency actions had
not occurred and must find on the basis of that reconstruction
that the responsible selecting official would have selected the
grievant but for the unwarranted actions. Id.

     In this case, the Arbitrator did not find, based on a
reconstruction of the promotion action, that the grievant would
have been selected for the position of flight engineer. The
Arbitrator found that the grievant should have been promoted
because, among other things, he met the qualifications in the job
announcement and was the only remaining applicant for the
position. However, the Arbitrator failed to find that the
grievant would have been selected if the selecting official had
not made errors in the selection process. With respect to the
fact that the grievant was the only qualified applicant, there
has been no showing that the Agency's decision not to fill the
position with the grievant violated any applicable requirements.
Consequently, we find that the award is deficient because the
Arbitrator did not make the necessary finding that the grievant
would have been selected for the position of flight engineer.

     The Arbitrator did find, and the Agency conceded, that
procedural errors had been committed in the selection process.
There is no evidence that these errors affected the Agency's
decision not to select the grievant, however. The record also
contains no evidence to indicate that the Agency intends to fill
the position which was the subject of the grievance. In
these circumstances, requiring the Agency to rerun the selection
action in conformance with the agreement would be an ineffective
remedy. Accordingly, we deny the Union's request that we modify
the award to require the selection action to be rerun. Rather, in
our view, it would effectuate the purposes of the Statute to
require the Agency, should it decide to fill a flight engineer
position in the future, to give the grievant priority
consideration in the selection process.

     V. Decision

     The Arbitrator's award is modified to provide an appropriate
legal remedy for the violation of the collective bargaining
agreement found by the Arbitrator by (1) striking that part of
the award directing that the grievant be given the position for
which he applied and (2) providing instead that the grievant be
awarded priority consideration for the next available flight
engineer position for which he is qualified and for which he
possesses the requisite military compatibility.

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY