New York State Council of the Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, New York State Department of Military and Naval Affairs (Authority decision, December 9, 1992)

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

Plain-English summary

An arbitrator found that the New York National Guard had filled a position with an unqualified employee but declined to remove that employee. The Authority previously modified the award to require removal and a new selection process. The agency sought reconsideration, arguing that the Authority used the wrong personnel rules and classified the violation incorrectly. The Authority found no evidence that the required approval to retain the employee had been obtained under either set of rules. It denied reconsideration, leaving the removal and new selection order in place.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Agency motion denied; earlier promotion remedy stands.
• Key point: Neither the agency's rule argument nor its classification of the violation showed grounds to keep an unqualified incumbent without required approval.

Full text (FLRA public release)

[ v46 p915 ]
46:0915(82)AR

The decision of the Authority follows:

46 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NEW YORK STATE COUNCIL OF THE
ASSOCIATION

OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

NEW YORK STATE DEPARTMENT OF MILITARY

AND NAVAL AFFAIRS

(Agency)

0-AR-2244

(46 FLRA 66 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

December 9, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 46 FLRA 66 (1992). The Union filed an opposition to the motion.(1) Because the Agency fails to establish that extraordinary circumstances exist that warrant reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 46 FLRA 66

The Arbitrator concluded that the Agency violated applicable regulations by selecting an unqualified candidate for a position. In reaching that result, the Arbitrator found that the selected employee lacked the requisite experience called for in the vacancy announcement. The Arbitrator also found that the selected employee "was not a marginal applicant. He out-and-out just did not qualify." 46 FLRA at 69, quoting Arbitrator's award. However, the Arbitrator declined to remove the selected employee from the position, as requested, for several reasons. Among them, the Arbitrator noted that the Agency needed someone to perform the duties of the position and that the selected employee was performing well in that capacity.

The Union filed exceptions to the award on the basis that it was contrary to rule and regulation. Specifically, the Union argued that the Arbitrator's failure to vacate the improperly filled position violated Federal Personnel Manual (FPM) chapter 335, Appendix A, section A-4(b)(1)(b), Agency regulation TPR-335, the State Merit Promotion Plan DMNA Pamphlet 690-4, and the merit promotion plan contained in the parties' negotiated agreement. The Agency did not file an opposition to the Union's exceptions.

The Authority concluded that the failure to remove the incumbent employee from the position rendered the award inconsistent with FPM chapter 335, Appendix A. In reaching that result, we discussed the provisions of Appendix A, which governs corrective actions when an agency has failed to adhere to its promotion plan. We noted, quoting section A-4(a)(2)(a) of Appendix A that "[a] procedural violation occurs when a promotion action does not conform to the requirements of the applicable promotion plan." 46 FLRA at

71. Based on our reading of the award and the relevant FPM provisions, we found
    "that the Agency committed a procedural violation of the FPM because its selection action did not conform with a requirement contained in its merit promotion plan." Id.

Accordingly, we modified the award to direct the Agency to remove the incumbent employee. We also directed the Agency to rerun the selection action and to take such actions as would conform fully with controlling law and regulation and the parties' collective bargaining agreement.

III. Agency's Motion for Reconsideration

The Agency contends that the Authority erred in: (1) determining that the violation was procedural rather than regulatory; and (2) basing its decision on FPM chapter 335. In its first argument, the Agency claims that "Section A-4(a)(2)(b)(ii), Chapter 335 of the FPM and [National Guard Bureau] regulations define the failure to meet qualification requirements at the time of promotion as a regulatory violation." Motion for Reconsideration at

1. As to its second argument, the Agency states as follows:

The FPM does not apply to Army and Air National Guard Technicians employed under 32 U.S.C. 709 unless specifically made applicable by the National Guard Bureau's (NGB) regulations. The Merit Placement regulations governing technicians employed under 32 U.S.C. 709 is the NGB Technician Personnel Regulation (TPR) 300, Chapter 335.

Id. The Agency also enclosed a portion of NGB Technician Personnel Regulation 300, Chapter 335.

IV. Union's Opposition

The Union claims that the Agency's argument regarding the applicability of the FPM is misplaced. The Union argues that the Agency cited no authority specifically exempting employees from coverage of FPM chapter 335 and, further, that the portion of the merit promotion regulation submitted by the Agency indicates that it is to be "filed with FPM Chapter 335." Opposition at 2. The Union cites a number of Authority decisions involving National Guard technicians in which "[r]elevant principles contained in the Federal Personnel Manual" have been relied on by the Authority and the agencies involved. The Union also notes that the Agency did not respond to the Union's exceptions, which raised the applicability of FPM chapter 335. Finally, the Union states that the Agency's argument concerning a regulatory, rather than procedural, violation "is not clearly articulated" and should be dismissed. Id. at 2, 3.

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 46 FLRA 66.

The Agency claims that the provisions of the FPM do not apply to bargaining unit employees unless specifically made applicable to them.(2)/ However, the Agency does not expressly state that it has not extended those provisions to bargaining unit employees and, more particularly, to the position at issue in this case. Without a clear indication from the Agency that there has been no extension of FPM chapter 335, and in light of the Agency's acknowledgment that it has the authority to adopt portions of the FPM, we are unable to conclude that our reliance on FPM chapter 335 was in error. Furthermore, in our decision in U.S. Department of Defense, Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, 39 FLRA 1225 (1991), we relied on FPM chapter 335, Appendix A in finding that a portion of an award directing the agency to rescind all promotion selections was deficient. The agency made no contention that the Authority's reliance on that provision was erroneous.

Additionally, we reject the Agency's contention that the Authority incorrectly found that the violation at issue was procedural, rather than regulatory. Under the provisions of FPM chapter 335, Appendix A, as referenced in our decision, a failure to conform to the requirements of an applicable promotion plan, as occurred in this case, constitutes a procedural violation. However, even if the Agency were correct in asserting that the violation was regulatory, rather than procedural, removal of the incumbent employee would be warranted under the provisions of the FPM. Thus, the relevant provisions of the FPM governing corrective action for regulatory violations provide that an employee may be retained in a position if that employee currently meets the necessary qualification or regulatory requirements and the appropriate office of the Office of Personnel Management (OPM) gives approval for the retention. See FPM chapter 335, Appendix A-4(b)(1)(c). There was no evidence in the record before the Authority in its original consideration of the case, and there is none accompanying the Agency's motion presently, that indicates that the appropriate OPM office approved the retention of the incumbent employee as is required.

Moreover, even if the Agency has not extended coverage of FPM chapter 335 to the employees involved herein, and the violation was regulatory under the terms of the Agency's merit promotion plan, removal of the incumbent would still be warranted. In a provision that is analogous to the FPM requirements regarding corrective action for regulatory violations, the Agency's merit promotion plan permits retention of an incumbent employee after a regulatory violation "only if he/she now meets all requirements and if the National Guard Bureau or appropriate OPM office (regional or central) gives approval." Motion for Reconsideration, Attachment at 4. There was no evidence presented in the record to establish that the requisite approval had been given.

VI. Order

The Agency's motion for reconsideration is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. We will consider the Union's submission pursuant to
   section 2429.26 of our Rules and Regulations.

2. In this regard, we note that 32 U.S.C. º 709(d),
   which governs National Guard technician employment, states that "a position authorized by this section is outside the competitive service if the technician
   . . . is required . . . to be a member of the National Guard." As here relevant, FPM chapter 335 governs promotion and internal placement in the competitive service.