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55 FLRA No. 15
U.S. Dept. of Defense, Dept. of the Army and the Air Force Alabama National Guard Northport, Alabama and Alabama Association of Civilian Technicians (Williams, Arbitrator) 0-AR-2999 (Decided December 31, 1998)
The Arbitrator found that the two grievants were not properly considered for a vacancy announcement for a WG-9 automotive worker position because the Agency preselected the selectee. The Arbitrator ordered the grievants to be upgraded to the WG-9 level under the provisions of Technical Personnel Regulation 335, Part II (TPR Part II).
The Agency excepted to the remedy portion of the Arbitrator's award. The Authority concluded that the remedy was deficient under section 7122(a)(1) of the Statute. Accordingly, that portion of the award was set aside, and the case was remanded to the parties with the direction that, absent settlement, the case should be submitted to the Arbitrator to determine an appropriate remedy.
The Authority's noted its framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute. Under that framework, the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II, 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. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.
The Authority first found that the award affected management's right to select. After applying the above described two-prong test, the Authority concluded that the award was deficient because it did not represent a proper reconstruction of what the Agency would have done had there been no violation.