Community Services Administration (Agency) and National Council of CSA Locals, American Federation of Government Employees, AFL-CIO (Union) (Authority decision, March 9, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A federal community services agency filled temporary excepted service positions mostly with outside applicants. A union grieved on behalf of employees not selected, asserting that contract promotion rules and conditions on excepted appointments had been violated. The arbitrator denied the grievances and used a rule of reason to evaluate a disputed staffing condition. The Authority found the union’s exceptions did not show that the arbitrator exceeded his authority or otherwise produced a deficient award, and sustained it.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Arbitration award upheld; temporary hiring grievances remained denied.
• Key point: Disagreement with the arbitrator’s reasoning did not establish that he exceeded his authority.

Full text (FLRA public release)

[ v05 p254 ]

05:0254(32)AR

The decision of the Authority follows:

5 FLRA No. 32

COMMUNITY SERVICES ADMINISTRATION
Agency

and

NATIONAL COUNCIL OF CSA LOCALS,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

Case No. 0-AR-158

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD /1/ OF
ARBITRATOR SEYMOUR STRONGIN FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE AGENCY POSTED AND FILLED AT ITS REGIONAL OFFICES CERTAIN
TEMPORARY POSITIONS AS SCHEDULE A EXCEPTED SERVICE POSITIONS UNDER THE
AUTHORITY PROVIDED IN SECTION 213.3199(B) OF TITLE 5 OF THE CODE OF
FEDERAL REGULATIONS. /2/

PRIOR TO POSTING THE POSITIONS AND BECAUSE OF THE NEED TO
EXPEDITIOUSLY FILL THEM, THE AGENCY SECURED FROM THE UNION ITS AGREEMENT
TO WAIVE THE NORMAL 10-DAY POSTING PERIOD AND IN ITS PLACE SUBSTITUTE A
SHORTER POSTING PERIOD. NOTICES WERE POSTED AND APPLICATIONS RECEIVED
FROM AGENCY EMPLOYEES AND OTHERS. THE AGENCY MADE ITS SELECTIONS AND
FILLED THE POSITIONS PRIMARILY WITH APPLICANTS FROM OUTSIDE THE AGENCY.

SUBSEQUENTLY, THE UNION FILED GRIEVANCES ON BEHALF OF NONSELECTED
AGENCY EMPLOYEES IN ITS ATLANTA AND BOSTON REGIONAL OFFICES. THE
GRIEVANCES ALLEGED THAT FILLING THE VACANCIES WITH OUTSIDE APPLICANTS
VIOLATED ARTICLE 12, SECTION 4(C)(3) OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT WHICH REQUIRES THAT COMPETITIVE MERIT PROCEDURES BE
USED FOR TEMPORARY PROMOTIONS OF MORE THAN 60 DAYS. THE GRIEVANCES ALSO
ALLEGED THAT SCHEDULE A AUTHORITY WAS NOT PROPERLY EXERCISED BECAUSE ONE
OF THE PRECONDITIONS TO ITS USE IN THESE CIRCUMSTANCES IS THAT THE
POSITIONS FILLED BE THOSE FOR WHICH OTHER STAFFING RESOURCES OR
AUTHORITIES ARE NOT AVAILABLE WITHIN THE AGENCY, A CONDITION WHICH
ALLEGEDLY WAS NOT MET. IN ADDITION, IN THE BOSTON GRIEVANCE THE UNION
ALLEGED THAT THE AGENCY IMPROPERLY FAILED TO GRANT THE GRIEVANT
VETERAN'S PREFERENCE POINTS AND THAT IT ERRONEOUSLY FAILED TO FORMALLY
RANK THE APPLICANTS FOR THE POSITIONS.

BOTH GRIEVANCES WERE SUBMITTED TO ARBITRATION. IN DENYING THE
GRIEVANCES, THE ARBITRATOR FOUND NO VIOLATION OF ARTICLE 12, SECTION
4(C)(3) OF THE AGREEMENT SINCE THE COVERAGE OF THAT PROVISION WAS
LIMITED TO "THE COMPETITIVE SERVICE FOR EMPLOYEES IN THE BARGAINING
UNIT." THUS, BECAUSE THE POSITIONS AT ISSUE INVOLVED SCHEDULE A EXCEPTED
SERVICE APPOINTMENTS, THE ARBITRATOR CONCLUDED ARTICLE 12, SECTION
4(C)(3) OF THE PARTIES' AGREEMENT WAS NOT APPLICABLE. AS TO THE UNION'S
CONTENTION THAT ONE OF THE PRECONDITIONS TO THE USE OF THE SCHEDULE A
APPOINTING AUTHORITY FOR TEMPORARY ORGANIZATIONS HAD NOT BEEN MET, I.E.,
THAT OTHER STAFFING RESOURCES OR AUTHORITIES WITHIN THE AGENCY NOT BE
AVAILABLE, THE ARBITRATOR OBSERVED THAT THERE WAS "AN ABSENCE OF
GUIDANCE FROM THE PARTIES" AS TO HOW THIS CONDITION SHOULD BE APPLIED.
THEREFORE HE FORMULATED AND APPLIED A "RULE OF REASON," DETERMINING THE
PRECONDITION TO BE MET IF THE AGENCY COULD ONLY DETAIL INCUMBENT
EMPLOYEES TO THE POSITIONS AT SERIOUS COST TO ITS OWN REGULAR
OPERATIONS. HOWEVER, THE ARBITRATOR FOUND THAT IN ANY EVENT THE UNION
HAD FAILED TO OBJECT WHEN THE AGENCY INFORMED IT THAT THE SCHEDULE A
AUTHORITY WOULD BE UTILIZED FOR THE POSITIONS, AND THEREFORE THAT THE
SCHEDULE A APPOINTING AUTHORITY HAD BEEN PROPERLY UTILIZED.

IN ADDITION, IN THE BOSTON GRIEVANCE THE ARBITRATOR ALSO FOUND THAT
THE GRIEVANT WAS NOT ENTITLED TO VETERAN'S PREFERENCE POINTS UNDER THE
AGENCY'S SELECTION PROCEDURES IN FILLING "TEMPORARY EMERGENCY-TYPE
POSITIONS" LIKE THE ONES IN DISPUTE. FINALLY, THE ARBITRATOR CONCLUDED
THAT, UNDER THE CIRCUMSTANCES OF THE CASE, THE ABSENCE OF A FORMAL
RANKING OF THE BOSTON APPLICANTS, EVEN ASSUMING THAT RANKING WAS
REQUIRED IN FILLING TEMPORARY POSITIONS, WAS NOT PREJUDICIAL TO THE
GRIEVANT. THEREFORE, THE ARBITRATOR DENIED THE GRIEVANCES.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /3/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
THE AGENCY FILED AN OPPOSITION.

THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS CASES.

IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD
IS "CONTRARY TO LAW, RULE AND/OR REGULATION." IN SUPPORT OF THIS
EXCEPTION, THE UNION CITES IN GENERAL TERMS TO VARIOUS STATUTORY AND
REGULATORY PROVISIONS DEALING WITH THE SCHEDULE A APPOINTING AUTHORITY
AND VETERANS' PREFERENCE RIGHTS AND REFERS TO TESTIMONY CONTAINED ON
VARIOUS PAGES OF THE TRANSCRIPT OF THE ARBITRATION HEARING.

THE UNION'S FIRST EXCEPTION, THAT THE AWARD IS CONTRARY TO LAW, RULE
OR REGULATION, STATES IN GENERAL TERMS A GROUND ON WHICH THE AUTHORITY
WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.
HOWEVER, IN THIS CASE THE UNION DOES NOT DEMONSTRATE IN ITS EXCEPTION
HOW THE AWARD IS CONTRARY TO LAW, RULE OR REGULATION. THUS, OTHER THAN
TO CITE IN GENERAL TERMS TO THE "RIGHTS OF (AGENCY) EMPLOYEES . . . TO
MERIT PROMOTION AND A COMPETITIVE PROCESS" UNDER THE COLLECTIVE
BARGAINING AGREEMENT, AND TO VARIOUS PROVISIONS OF THE FEDERAL PERSONNEL
MANUAL AND TITLE 5 OF THE UNITED STATES CODE, THE UNION HAS NOT
DEMONSTRATED HOW THE ARBITRATOR'S AWARD, DENYING THE GRIEVANCES OVER THE
AGENCY'S FILLING OF CERTAIN TEMPORARY SCHEDULE A POSITIONS, IS CONTRARY
TO ANY SPECIFIC LAWS OR REGULATIONS. INSTEAD, IT IS CLEAR FROM THE
UNION'S REFERENCES TO VARIOUS TESTIMONY IN THE HEARING RECORD AND TO
CERTAIN FINDINGS MADE BY THE ARBITRATOR THAT THE UNION IS ATTEMPTING TO
RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY. SUCH
ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT. NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2284, 3 FLRA NO. 35(1980). THEREFORE, THE
UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
RULES AND REGULATIONS.

IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY. IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS
THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY WHEN HE APPLIED A "RULE OF
REASON" IN "THE ABSENCE OF ANY GUIDANCE FROM THE PARTIES" AS TO HOW ONE
OF THE REGULATORY PRECONDITIONS TO USING SCHEDULE A AUTHORITY FOR
FILLING TEMPORARY POSITIONS SHOULD BE INTERPRETED AND APPLIED. INSTEAD,
THE UNION ASSERTS, THE ARBITRATOR SHOULD ONLY HAVE APPLIED "RULES"
REGARDING MERIT PROMOTION AND COMPETITIVE PROCEDURES.

THE UNION'S SECOND EXCEPTION, THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY, STATES A GROUND UPON WHICH THE AUTHORITY WILL FIND AN AWARD
DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE. DEPARTMENT OF THE
AIR FORCE, MCGUIRE AIR FORCE BASE AND LOCAL 1778, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, 3 FLRA NO. 38(1980). HOWEVER, IN THIS CASE THE
UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR IN ANY MANNER
EXCEEDED HIS AUTHORITY WHEN, IN ADDRESSING ONE OF THE QUESTIONS BEFORE
HIM OF WHETHER CERTAIN REGULATORY PRECONDITIONS HAD BEEN MET, HE
FORMULATED A "RULE OF REASON" FOR APPLYING THE REGULATION IN THE ABSENCE
OF OTHER GUIDANCE FROM THE PARTIES. INSTEAD, THE UNION'S ARGUMENTS IN
SUPPORT OF ITS EXCEPTION CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S
REASONING AND CONCLUSION IN RESOLVING THE MATTER BEFORE HIM. THIS DOES
NOT CONSTITUTE A BASIS FOR FINDING AN AWARD DEFICIENT. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO AND SOCIAL
SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS AND OFFICES, 4 FLRA NO.
19(1980). THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR
FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
THE AUTHORITY'S RULES AND REGULATIONS.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
AWARD.

ISSUED, WASHINGTON, D.C., MARCH 9, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ THE MATTER BEFORE THE ARBITRATOR INVOLVED TWO SEPARATE GRIEVANCES
WITH SIMILAR ISSUES. THE ARBITRATOR'S AWARDS AS TO EACH OF THOSE
GRIEVANCES HAVE BEEN ADDRESSED AS SINGLE AWARD BY THE UNION IN ITS
EXCEPTIONS AND WILL BE SIMILARLY TREATED FOR PURPOSES OF THIS DECISION.

/2/ 5 CFR 213.3199(B)(1980) PROVIDES THE AUTHORITY TO HIRE EMPLOYEES
FOR THE SCHEDULE A EXCEPTED SERVICE TO FILL:

POSITIONS AT GS-15 AND BELOW ON THE STAFFS OF TEMPORARY ORGANIZATIONS
ESTABLISHED WITHIN

CONTINUING AGENCIES WHEN ALL OF THE FOLLOWING CONDITIONS ARE MET:
(1) THE TEMPORARY

ORGANIZATION IS ESTABLISHED BY AN AUTHORITY OUTSIDE THE AGENCY,
USUALLY BY LAW OR EXECUTIVE

ORDER; (2) THE TEMPORARY ORGANIZATION IS ESTABLISHED FOR AN INITIAL
PERIOD OF 4 YEARS OR LESS

AND, IF SUBSEQUENTLY EXTENDED, ITS TOTAL LIFE INCLUDING EXTENSION(S)
WILL NOT EXCEED 4

YEARS; (3) THE WORK TO BE PERFORMED BY THE TEMPORARY ORGANIZATION IS
OUTSIDE THE AGENCY'S

CONTINUING RESPONSIBILITIES; AND (4) THE POSITIONS FILLED UNDER THIS
AUTHORITY ARE THOSE FOR

WHICH OTHER STAFFING RESOURCES OR AUTHORITIES ARE NOT AVAILABLE
WITHIN THE AGENCY. AN AGENCY

MAY USE THIS AUTHORITY TO FILL POSITIONS IN ORGANIZATIONS WHICH DO
NOT MEET ALL OF THE ABOVE

CONDITIONS OR TO MAKE APPOINTMENTS AND POSITION CHANGES IN A SINGLE
ORGANIZATION DURING A

PERIOD LONGER THAN 4 YEARS ONLY WITH PRIOR APPROVAL OF THE (OFFICE OF
PERSONNEL MANAGEMENT).

/3/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES OR
REGULATIONS.