AFGE Local 1815 and U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama (Authority decision, March 31, 1993)

Final FLRA decision. The Authority denies an exception to an arbitration award, leaving the arbitrator's denial of the grievance in place. 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 employee selected for a temporary supply clerk position at Fort Rucker sought conversion to a permanent position. The agency declined while employees eligible for placement were on its Stopper List, and a displaced employee later filled the job. An arbitrator denied the grievance, finding that the job announcement's promise of no further competition did not govern noncompetitive placement. The union argued that a Defense Department regulation made the award deficient. The Authority denied the exception because the union had not supplied the complete relevant regulation needed to support that claim.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); document requirement under 5 C.F.R. § 2425.2(d).
• Outcome: Union exception denied; arbitrator's denial of the grievance stands.
• Key point: An exception relying on a regulation needs the complete relevant text to substantiate the alleged conflict.

Full text (FLRA public release)

[ v47 p254 ]
47:0254(18)AR

The decision of the Authority follows:

47 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1815

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY AVIATION CENTER

FORT RUCKER, ALABAMA

(Agency)

0-AR-2361

_____

DECISION

March 31, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Linda S. Byars filed by the Union 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 Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to convert the grievant's temporary position to a permanent one. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

In 1989 the grievant was selected for a temporary Supply Clerk position through competitive procedures under a job opportunity announcement (JOA) which stated: "[i]f this position becomes permanent, no further competition will be required." Award at 7. In May 1991, the grievant's supervisors requested that the grievant's temporary position be converted to a permanent position. The Agency denied the request because there were employees listed on the Department of Defense "Stopper List."(1) In October 1991, as a result of a reduction-in-force (RIF), a displaced employee was assigned to the Supply Clerk position, and the grievant was returned to her previous position.

A grievance was filed over the Agency's failure to convert the grievant's temporary position to a permanent one. When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:

Was the Agency's failure to convert the [g]rievant's temporary position to a permanent one a violation of the part[ies'] agreement as stated on the JOA?

Award at 7.

The Arbitrator denied the grievance. The Arbitrator found that the JOA constituted a "negotiated . . . agreement" and that the JOA addressed the conversion of temporary positions to permanent ones without further competition. Id. However, the Arbitrator also found that the JOA "did not address noncompetitive considerations." Id. at 8. Therefore, according to the Arbitrator, the noncompetitive placement of the displaced employee in the grievant's position did not violate the parties' agreement. The Arbitrator also noted that, "[a]lthough the Agency could have attempted to clear the Stopper List [in May 1991] and convert the [g]rievant if no one on the Stopper List wanted the position, the Agency's failure to take this action is not a violation of the parties' agreement." Id. at 9-10. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the award is contrary to Department of Defense (DoD) Regulation 1400.20-1-M, Chapter 4, Section A, paragraphs 2 through 10, which "prescribe[] when and under what conditions an activity must stop its recruiting actions (including temporary promotions) and 'clear' the Stopper List." Exception at 2. The Union contends that, as the Agency was obligated by the DoD Regulation to "'clear' the stopper list[]" in 1989, when the grievant was selected for the temporary position, there was "no requirement to again 'clear' the stopper list[]" in May 1991, when the request was made to convert the grievant's position to permanent status. Id. at 2. According to the Union, "[h]ad the [A]rbitrator[] been made aware of these regulatory operations
. . . a different award would have been forthcoming." Id. at 3.

B. Agency

The Agency asserts that, as the applicability of the DoD regulation was not raised before the Arbitrator, the Union is precluded from raising the issue in its exception.

IV. Analysis and Conclusions

Section 7122(a) of the Statute provides that an arbitration award is deficient if it conflicts with a governing agency rule or regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990). The Union argues, in this connection, that the Agency violated the procedures outlined in DoD Regulation 1400.20-1-M, Chapter 4, Section A, paragraphs 2 through 10, and that, by sustaining the Agency action, the award conflicts with the regulation.(2)

Under section 2425.2(d) of the Authority's Rules and Regulations, an exception must be a self-contained document which includes all pertinent documents. In this case, the Union has failed to provide a complete copy of the relevant portions of the regulation on which it relies.(3) As such, the Union has not supported its claim that the award is deficient as inconsistent with the regulation. See American Federation of Government Employees, Local 2094 and U.S. Department of Veterans Affairs, Manhattan Medical Center, 44 FLRA 1192 (1992). Accordingly, we will deny the Union's exception.

V. Decision

The Union's exception is denied.

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

1. The Stopper List is a list of
   Department of Defense employees who are eligible for noncompetitive placement in vacant Agency positions. Prior to filling a vacant position through competitive procedures, the Stopper List must be "cleared" by matching the position to the qualifications of employees on the list to determine if an available, qualified employee desires the position. If no such employee wants the position, the Stopper List is cleared. See Award at 2, 9-10.

2. We find no basis in the record on
   which to conclude that the issue of whether the Agency violated the DoD regulation was raised before the Arbitrator. However, as the Union also argues that the award conflicts with the regulation, and in view of our disposition of the argument, we assume for the purposes of this decision that the matter is properly before us.

3. The Union provided only portions of
   paragraphs 5 and 10 of the regulation. In addition, although paragraph 5 refers to exceptions to its requirements, the portions of the regulation setting forth those exceptions were not provided.