Adjutant General, State of Oklahoma, Air National Guard and AFGE Local 3953 (Authority decision, February 11, 1982)

Final FLRA decision. The Authority modified an arbitration award's corrective action for a disputed appointment and otherwise rejected the agency's objections. An Authority order under 5 U.S.C. § 7122 concerning an arbitration award is excluded from judicial review by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice; this order does not identify one.

Plain-English summary

An arbitrator found that the Oklahoma Air National Guard selected an employee who lacked a required qualification for a metallizing equipment operator position. The arbitrator ordered the position vacated and gave management a choice between reopening recruitment for the full performance job and announcing a trainee job. The Guard challenged the award. The Authority upheld the arbitrator's authority to decide the dispute but found that ordering the position vacated before corrective action could conflict with federal personnel rules. It modified the remedy to require a lawful rerun and a separate determination of the incumbent's status under the option management chooses. The order states no monetary penalty.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); Federal Personnel Manual chapter 335, appendix A.
• Outcome: Arbitration remedy modified; agency's other exceptions rejected.
• Key point: The agency must correct the selection while applying the personnel rules governing whether the incumbent may stay during the rerun.

Full text (FLRA public release)

[ v08 p112 ]

08:0112(23)AR

The decision of the Authority follows:

8 FLRA No. 23

THE ADJUTANT GENERAL,
STATE OF OKLAHOMA, AIR
NATIONAL GUARD
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
WILL ROGERS AIR NATIONAL
GUARD LOCAL 3953
Union

Case No. 0-AR-146

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR JAMES B. GILES FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7122(A)) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR PART 2425). THE UNION DID NOT FILE AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE CONCERNED THE
ELIGIBILITY OF CANDIDATES FOR PROMOTION AND PLACEMENT. SPECIFICALLY, HE
STATED THAT

(T)HE MAIN ISSUE REVOLVED AROUND THE QUESTION OF WHETHER MANAGEMENT
HAS VIOLATED THE

COLLECTIVE BARGAINING AGREEMENT BY SELECTING AN APPLICANT WHO DID NOT
MEET THE MANDATORY AND

SELECTIVE FACTOR QUALIFICATIONS.

THE ARBITRATOR DETERMINED THAT A CERTAIN AFSC RATING WAS A MINIMUM
QUALIFICATION REQUIREMENT FOR APPOINTMENT TO THE FULL PERFORMANCE LEVEL
OF THE POSITION IN DISPUTE AND THAT THE INDIVIDUAL SELECTED FOR THE
POSITION CLEARLY DID NOT MEET THIS MANDATORY REQUIREMENT. ACCORDINGLY,
THE ARBITRATOR MADE THE FOLLOWING AWARD:

IT IS THE CONCLUSION OF THIS ARBITRATOR THAT THE POSITION OF
METALLIZING EQUIPMENT OPERATOR

MUST BE VACATED AND

THE FOLLOWING OPTION BE LEFT TO MANAGEMENT: (A) REOPEN

THE OPPORTUNITY FOR ELIGIBLE AND QUALIFIED PERSONNEL TO BID FOR THE
FULL PERFORMANCE POSITION

OF METALLIZING EQUIPMENT OPERATOR, OR, IF MANAGEMENT CONSIDERS THIS
TO BE A FRUITLESS STEP (B)

ANNOUNCE, INSTEAD, A TRAINEE POSITION, GIVING THE APPROPRIATE
REDUCTION IN RATING AND

SPECIFYING THE MANDATORY QUALIFICATIONS AND THE SELECTIVE FACTORS FOR
THE TRAINEE, THIS TO

FOLLOW OMD SUPPLEMENT 1-1 TO TPP 911, 6(A).

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY. IN SUPPORT OF THIS EXCEPTION, THE AGENCY HAS
SUBMITTED A COPY OF THE LETTER THE PARTIES SENT TO THE FEDERAL MEDIATION
AND CONCILIATION SERVICE REQUESTING A PANEL OF ARBITRATORS. IN THAT
LETTER THE DISPUTE BETWEEN THE PARTIES WAS DESCRIBED AS FOLLOWS:

A BRIEF STATEMENT OF THE NATURE OF THE ISSUE TO BE DECIDED FOLLOWS:

ISSUE: DOES THE ACTIVITY HAVE THE RIGHT UNDER THE PARTIES'
COLLECTIVE BARGAINING

AGREEMENT TO INCLUDE APPROPRIATE SELECTIVE PLACEMENT FACTORS AND HAVE
THEM USED AS MANDATORY

QUALIFICATIONS IN DETERMINING ELIGIBILITY OF CANDIDATES FOR PROMOTION
AND MERIT PLACEMENT.

ON THE BASIS OF THIS DESCRIPTION, THE AGENCY MAINTAINS THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY FRAMING AND DECIDING AN ISSUE WHICH
WAS NEITHER SPECIFICALLY INCLUDED OR NECESSARILY AROSE FROM THE
STATEMENT OF THE ISSUE AS CONTAINED IN THE FMCS LETTER.

HOWEVER, THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
AWARD DEFICIENT. THE AGENCY HAS FAILED TO ESTABLISH THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY DETERMINING AN ISSUE THAT WAS NOT INCLUDED IN
THE SUBJECT MATTER SUBMITTED TO ARBITRATION. THE SOLE BASIS OF THE
AGENCY'S EXCEPTION IS THAT THE FMCS LETTER CONSTITUTED THE COMPLETE
AGREEMENT BETWEEN THE PARTIES AS TO THE ISSUE TO BE ARBITRATED AND THAT
THE LETTER SET FORTH THE ISSUE IN PRECISE LANGUAGE SO AS TO CONFINE AND
CIRCUMSCRIBE THE ARBITRATOR'S AUTHORITY TO THAT ISSUE ALONE. THE
AUTHORITY DISAGREES. THE FMCS LETTER WAS CAST IN LANGUAGE SUFFICIENTLY
IMPRECISE AS NOT TO EXPRESSLY CONFINE AND CIRCUMSCRIBE THE ISSUE MARKED
OUT FOR THE ARBITRATOR'S CONSIDERATION. THE LETTER DOES NOT FORMULATE
THE PRECISE ISSUE SUBMITTED TO ARBITRATION TO WHICH THE ARBITRATOR .
CONSEQUENTLY WOULD HAVE BEEN LIMITED. RATHER, THE LETTER BY ITS OWN
TERMS ONLY CONSTITUTED A "BRIEF STATEMENT OF THE NATURE OF THE ISSUE TO
BE DECIDED." THEREFORE, THE AGENCY FAILS TO DEMONSTRATE THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING THAT THE MAIN ISSUE
BETWEEN THE PARTIES REVOLVED AROUND THE QUESTION OF WHETHER MANAGEMENT
VIOLATED THE AGREEMENT BY SELECTING AN APPLICANT WHO DID NOT MEET A
MANDATORY QUALIFICATION REQUIREMENT. SEE UNITED STATES DEPARTMENT OF
THE INTERIOR, BUREAU OF LAND MANAGEMENT, EUGENE DISTRICT OFFICE AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1911, 6 FLRA NO.
72(1981) AND PRIVATE SECTOR CASES CITED THEREIN.

IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
CONTRARY TO THE FEDERAL PERSONNEL MANUAL. THE AGENCY EMPHASIZES THAT THE
AWARD OFFERS MANAGEMENT AN OPTION IN RERUNNING THE ACTION.
CONSEQUENTLY, THE AGENCY ARGUES THAT THE AWARD IS DEFICIENT IN ORDERING
THAT THE POSITION MUST BE VACATED. THE AGENCY MAINTAINS IN THIS RESPECT
THAT THE INCUMBENT EMPLOYEE MAY BE ENTITLED, PURSUANT TO FPM CHAPTER
335, APPENDIX A, SECTION A-4B, NOT TO BE REMOVED FROM THE POSITION IN
ADVANCE OF THE ORDERED CORRECTIVE ACTION DEPENDING ON WHICH ALTERNATIVE
MANAGEMENT DECIDES TO TAKE. THE AUTHORITY AGREES. TO THE EXTENT THE
AWARD ORDERS THAT THE POSITION "MUST BE VACATED" PRIOR TO RERUNNING THE
ACTION WITHOUT A SPECIFIC DETERMINATION THAT THE EMPLOYEE IS NOT
ENTITLED TO REMAIN IN THE POSITION UNDER EITHER ALTERNATIVE, IT IS
INCONSISTENT WITH THE FPM AND MUST BE MODIFIED. CONSEQUENTLY, THE AWARD
IS MODIFIED TO PROVIDE AS FOLLOWS: /1/

WITH RESPECT TO THE DISPUTED ACTION CONCERNING THE POSITION OF
METALLIZING EQUIPMENT

OPERATOR, MANAGEMENT IS ORDERED TO TAKE, CONSISTENT WITH APPLICABLE
LAW AND REGULATION AND THE

COLLECTIVE BARGAINING AGREEMENT, ONE OF THE FOLLOWING CORRECTIVE
ACTIONS: (1) REOPEN THE

OPPORTUNITY FOR ELIGIBLE AND QUALIFIED PERSONNEL TO BID FOR THE FULL
PERFORMANCE POSITION OF

METALLIZING EQUIPMENT OPERATOR, OR, IF MANAGEMENT CONSIDERS THIS TO
BE A FRUITLESS STEP (B)

ANNOUNCE, INSTEAD, A TRAINEE POSITION, GIVING THE APPROPRIATE
REDUCTION IN RATING AND

SPECIFYING THE MANDATORY QUALIFICATIONS AND THE SELECTIVE FACTORS FOR
THE TRAINEE, THIS TO

FOLLOW OMD SUPPLEMENT 1-1 TO TPP 911, 6(A). IN EITHER EVENT, THE
ACTION INVOLVING THE

ERRONEOUSLY APPOINTED INCUMBENT EMPLOYEE MUST FULLY CONFORM WITH
CONTROLLING LAW AND

REGULATION AND THE COLLECTIVE BARGAINING AGREEMENT.

IN MODIFYING THE AWARD IN THIS MANNER, THE AUTHORITY NOTES THAT THE
ARBITRATOR'S FINDING THAT THE INCUMBENT EMPLOYEE DID NOT POSSESS THE
MINIMUM QUALIFICATIONS FOR THE FULL PERFORMANCE LEVEL WOULD PRECLUDE
RETAINING THE EMPLOYEE IN THE POSITION WHILE THE ACTION IS BEING RERUN
SHOULD THE AGENCY CHOOSE ALTERNATIVE (A). SHOULD THE AGENCY OPT INSTEAD
FOR ALTERNATIVE (B), IT MUST FIRST APPLY THE APPLICABLE REGULATIONS AND
DETERMINE WHETHER THE EMPLOYEE IS ENTITLED TO REMAIN IN HIS CURRENT
POSITION AND GRADE LEVEL WHILE THE ACTION IS BEING RERUN IN ACCORDANCE
WITH THAT ALTERNATIVE.

ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ AS A FINAL EXCEPTION THE AGENCY ALSO CONTENDS THAT THE AWARD
INTERFERES WITH ITS RIGHTS UNDER SECTION 7106(A)(2)(A) AND (C) OF THE
STATUTE. ESSENTIALLY THE AGENCY ARGUES THAT THE AWARD REQUIRES THE
ACTIVITY TO MAKE A SELECTION AND FILL THE POSITION AFTER THE ACTION IS
RERUN. HOWEVER, ON ITS FACE THE AWARD ONLY REQUIRES THAT MANAGEMENT
REANNOUNCE AND RERUN THE ACTION, AND AS MODIFIED THE AWARD EXPRESSLY
PROVIDES THAT THE CORRECTIVE ACTION MUST CONFORM WITH LAW WHICH WOULD
INCLUDE, AS APPLICABLE, MANAGEMENT RIGHTS SET FORTH IN SECTION 7106(A)
OF THE STATUTE. ACCORDINGLY, NO BASIS IS PROVIDED FOR FINDING THE
AWARD, AS MODIFIED, DEFICIENT ON THIS GROUND.