American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights (Authority decision, March 12, 1987)

Final FLRA decision. The Authority modifies an arbitral award under 5 U.S.C. § 7122(a). Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award generally is excluded from judicial review unless it involves an unfair labor practice under § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

The Commission on Civil Rights filled a program analyst job without convening the review committee required by its labor agreement and posted a temporary civil rights analyst opening for less than the required ten working days. An arbitrator sustained the union's grievance and ordered the positions vacated. The Authority upheld the findings that the agency had violated the agreement. It modified the remedy because the people selected could stay in their jobs while the agency corrected the process unless they could not properly have been selected. The agency must rerun both selection actions under the agreement and applicable law.

Decision snapshot

• Authority: Management selection rights under 5 U.S.C. § 7106(a), arbitration exceptions under § 7122(a), and FPM chapter 335 corrective action.
• Outcome: Agreement violations upheld; immediate vacancy remedy replaced with rerun selection actions.
• Key point: An incumbent generally remains in the position while a defective selection process is corrected.

Full text (FLRA public release)

[ v26 p158 ]

26:0158(17)AR

The decision of the Authority follows:

26 FLRA No. 17

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2478, AFL-CIO
Union

and

U.S. COMMISSION ON CIVIL RIGHTS
Agency

Case No. 0-AR-1206

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert E. Mullin 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 Union filed an opposition. /*/

II. Background and Arbitrator's Award

The issues in the dispute before the Arbitrator were whether the Agency violated the procedures set forth in Article X of the parties' collective bargaining agreement in filling a GS-13 Program Analyst position and whether the Agency further violated Article X by failing to post a vacancy announcement for a temporary GS-9/GS-11 Civil Rights Analyst position for at least ten days. Article X, Section 8 of the parties' agreement provides that: "(F)or all vacancies where there are five or more eligible candidates, a promotion committee will be convened to evaluate and rank the eligible candidates." The Agency stipulated that six people applied for the Program Analyst position. However, the Agency did not convene a rating panel to consider the applications because two of the candidates were already GS-13s. Further, although Article X, Section 6(c) of the agreement requires vacancy announcements to be posted on bulletin boards within the minimum area of consideration for not less than ten working days, the Agency did not post an announcement for the temporary position of Civil Rights Analyst for the required period.

The Agency's former Director of Personnel for the period when the parties' current collective bargaining agreement was initially negotiated testified that it was the intent of the agreement and the practice during his tenure: to routinely establish panels whenever there were five or more applicants; to consider as irrelevant the grades of the applicants in determining whether there were five or more eligible candidates; and to post all vacancies including temporary positions unless they were specifically excepted from coverage of Article X elsewhere in the agreement.

The Arbitrator found merit to both segments of the grievance. The Arbitrator concluded that the Agency violated Article X, Section 8 of the agreement by failing to convene a promtion committee to evaluate and rank the eligible candidates for the Program Analyst vacancy. In reaching that conclusion, the Arbitrator rejected the Agency's arguments that reference to Federal Personnel Manual (FPM) chapter 335 in the agreement limited the application of the agreement provision to promotion actions only and that the lack of sufficient eligible candidates for promotion relieved it of the obligation to convene a committee. The Arbitrator found that the general reference to FPM chapter 335 did not negate the specific requirements set forth in the rest of the Article; that the Article applied to all vacant positions agency-wide; and that FPM chapter 335 was referred to merely as a starting point for the parties' discussions. Further, the Arbitrator found that as this was not a reassignment and as there were no other exclusions to the Merit Promotion Staffing Plan applicable to the applicants who were at the same grade as the vacancy, there was no distinction between the GS-13 and GS-12 applicants. Accordingly, the Arbitrator concluded that Article X, Section 8 applied. Additionally, the Arbitrator, relying on the clear language of Article X, Section 6(c) and the practice during the former Personnel Director's tenure with regard to all temporary positions, concluded that the Agency violated the agreement by not posting the temporary Civil Rights Analyst position for ten days.

The Arbitrator also found that Article X, as interpreted by the Union, is not inconsistent with any law, rule or regulation and is enforceable. Relying on applicable law, he concluded that the parties have broad latitude to negotiate such procedures surrounding the exercise of management's section 7106(a) rights. He found that these rights may be limited by procedures negotiated under section 7106(b) as long as they do not have the effect of eliminating management authority by preventing it from acting at all, citing Department of Defense, Army-Air Force Exchange Service v. Federal Labor Relations Authority, 659 F.2d 1140, 1153 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

As a remedy the Arbitrator ordered the Agency to apply the terms of Article X of the agreement to all vacancies and to promptly vacate the positions which were improperly filled.

III. First Exception

A. Contentions

In its first exception, the Agency contends that the Arbitrator erred in concluding that Article X of the parties' agreement is applicable to the filling of all vacancies because that provision assertedly applies only to merit promotions. The Agency further contends that the Arbitrator erred in applying Article X to the Program Analyst selection action because that provision assertedly only applies when there are five or more candidates for promotion and in this case some of the six candidates were seeking reassignment and not promotion. In support of its contention, the Agency argues that the Arbitrator's analysis and conclusions were flawed and contrary to the established principles of contract interpretation, and that the Arbitrator's interpretation of the agreement interferes with management's right to select under section 7106(a) of the Statute.

B. Analysis and Conclusions

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient as alleged. Rather, the Agency is attempting to relitigate the merits of the case before the Authority. The thrust of the Agency's assertions essentially constitutes nothing more than disagreement with the Arbitrator's findings of fact, his specific reasoning and conclusions, and with his interpretation and application of the parties' agreement. It is well established that these arguments provide no basis for finding an award deficient under the Statute. For example, General Services Administration and American Federation of Government Employees, Council 236, 15 FLRA 328, 329 (1984).

IV. Second Exception

A. Contentions

In its second exception, the Agency contends that the award is contrary to FPM chapter 335, appendix A, because it requires that the positions that were filled must be vacated in advance of the rerunning of the selection actions.

B. Analysis and Conclusions

We agree with the Agency. The Authority has repeatedly held that an incumbent employee is entitled pursuant to FPM chapter 335, appendix A, section A-4b to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been properly selected. For example, American Federation of Government Employees, Local 1546 and Sharpe Army Depot, Department of the Army, Lathrop, California, 16 FLRA 1122, 1123 (1984); United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 14 FLRA 638 (1984). In this case the Arbitrator did not specifically determine that a reconstruction of the selection actions showed that the selected employees could not have been selected had the proper procedures been followed at the time the actions were taken. Therefore, to the extent that the Arbitrator ordered the positions vacated in advance of corrective action, the award is deficient as contrary to FPM chapter 335, appendix A, section A-4, and must be modified.

V. Decision

For the reasons stated above, the Agency's first exception is denied. In accordance with our finding concerning the Agency's second exception, paragraph 1 of the Arbitrator's award is modified as follows:

In accordance with the findings set forth above, the Grievance here involved is sustained. Accordingly, the Agency will apply the terms of Article X of the collective bargaining agreement to all vacancies. The Agency will rerun the selection actions for the positions of Program Analyst and Civil Rights Analyst. The rerunning of the selection actions and any related actions involving the incumbent employees to these positions must fully conform with controlling law and regulation and with the parties' collective bargaining agreement as construed herein.

Issued, Washington, D.C., March 12, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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(*) In its opposition, the Union contends that the Agency's exceptions were untimely filed. However, we have determined that the exceptions were timely filed under sections 2425.1, 2429.21 and 2429.22 of the Authority's Rules and Regulations.