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56 FLRA No. 104
U.S. Department of Veterans Affairs Veterans Integrated Service Network 13 and American Federation of Government Employees Local 390 (Mueller, Arbitrator), 0- AR-3272 (Decided September 15, 2000)
The Arbitrator determined that the Agency improperly failed to select the grievant for a vacant position. As a remedy, the Arbitrator ordered the Agency to promote the grievant retroactively and to make the grievant whole. The Authority concluded that the Agency failed to establish that the award was deficient under section 7122(a) of the Statute and denied the Agency's exceptions.
The Authority rejected the allegation that the arbitrator exceeded his authority by resolving an issue not submitted to arbitration, holding that the award was responsive to the matter raised in arbitration. The Authority also rejected the allegation that the award was based on a nonfact.
With regard to the allegation that the award was deficient under section 7106(a)(2) of the Statute, the Authority applied the two pronged test established in BEP, 53 FLRA 146, to resolve alleged violations to management's rights and concluded that the award satisfied both prongs of BEP, therefore the award was not deficient as inconsistent with management's right to select. The Authority also concluded that he award did not violate the Back Pay Act.