Social Security Administration and American Federation of Government Employees, Local 3627, 0-AR-3590, July 29, 2003, 58 FLRA No. 175. 8.

The arbitrator, after finding that the agency failed to provide priority consideration to the grievant, ordered it to vacate its selections, rerun the selection process, and designate a different selecting official. FLRA set aside that portion of the award directing the agency to appoint a different selecting official because it didn't pass Prong II of the BEP test. "[T]here is no showing that the Agency would have designated a different selecting official had the Agency not violated the parties' agreement."

The grievant had previously applied, but was not selected, for one of three positions. A grievance was filed alleging the agency violated, among other things, the CBA's time requirements for reviewing bargaining unit applications first. The matter was referred to arbitration and Arbitrator Mills found that the agency violated the agreement and directed it to vacate the selections and name a different selecting official to reconsider the applicants. No exceptions were filed. Instead, the agency vacated the selection actions and a different selecting official ended up selecting the same three individuals who had been selected before.

Another grievance was filed claiming that the agency violated the agreement by not providing the grievant with priority consideration. Arbitrator Feinstein, to whom the second grievance was referred, agreed and ordered the agency to vacate the selections, rerun the selection action, and directed that a different selecting official from outside the region be appointed "[t]o avoid even the appearance of impropriety or predetermination in the third selection process."

The agency filed exceptions contending, among other things, that the award violates 5 USC § 2302 by "requiring the Agency both to rerun the selection procedure and to provide the grievant a priority consideration[.]" It also claimed that in requiring the agency to demote the original selectees the award is inconsistent with 5 USC § 7513(a), the "just cause" provision of the contract, and MSPB decisions. And in requiring the agency to use a selecting official outside the regional office, the award violates § 7106(a)(2)(B).

In rejecting the agency's claim that the award of priority consideration would require the agency to give the grievant an unlawful advantage, FLRA said: "Nothing in the award mandates that the grievant be selected; rather, the award simply provides for consideration of the grievant, in advance of other candidates. The award also does not preclude the Agency from considering other candidates, after providing the grievant with priority consideration."

In rejecting the Agency's claim that the award requires the agency to demote the original selectees and thus violates 5 U.S.C. § 7513(a), given that there was no showing that they weren't qualified or had committed any misconduct, FLRA said the following:

Neither vacating a selection nor rerunning a selection action constitutes an adverse action within the meaning of § 7513(a). . . . [T]he Arbitrator did not expressly order the Agency to demote the employees. . . . [T]here is nothing in the award to suggest that the Agency could not have taken some other action, such as a temporary assignment to another position a[t] the same grade, pending the rerunning of the selection action.

However, FLRA did find that, in requiring the agency to designate a selecting official from outside the regional office, the award affected management's right to assign work. It accordingly applied the BEP framework and, assuming, without deciding, that this part of the award satisfied Prong I (i.e., it was a remedy for either a violation of an "applicable law" or a § 7106(b) CBA provision), it found that "it fails to satisfy Prong II because it does not reflect a reconstruction of what the Agency would have done had it not violated the parties' agreement. . . .[T]here is no showing that the Agency would have designated a different selecting official had the Agency not violated the parties' agreement." It therefore set aside this portion of the award.