Veterans Administration Hospital, Dallas, Texas and American Federation of Government Employees, Local 2437 (Authority decision, November 15, 1979)

Final FLRA decision. This final order modifies an arbitration award under the Authority's transition rules, 5 C.F.R. §§ 2400.5 and 2411.37 (1978). The decision does not address judicial review.

Plain-English summary

An arbitrator found that a Dallas Veterans Administration hospital violated its agreement by filling a painter vacancy without posting it for current employees. He ordered the hospital to vacate the position, post it, and limit use of an outside civil service candidate list. The Authority accepted the agency's challenge in part after the Office of Personnel Management explained that the incumbent could not be removed before the selection was reconstructed and that management could use alternate staffing methods. It struck the immediate vacancy requirement, added language preserving alternate staffing methods, and vacated the stay of the award.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. § 2411.37 (1978).
• Outcome: Award modified to protect the incumbent and preserve alternate staffing methods; stay vacated.
• Key point: The hospital had to correct its posting error without prematurely removing the incumbent or losing access to other lawful candidate sources.

Full text (FLRA public release)

[ v02 p99 ]

02:0099(9)AR

The decision of the Authority follows:

2 FLRA No. 9

VETERANS ADMINISTRATION HOSPITAL,
DALLAS, TEXAS

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2437

FLRC No. 78A-120

DECISION ON APPEAL FROM ARBITRATION AWARD

BACKGROUND OF CASE

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
THE ACTIVITY FILLED A VACANCY FOR THE POSITION OF PAINTER, WG-9, FROM A
CIVIL SERVICE CERTIFICATE OF ELIGIBLES WITHOUT POSTING THE VACANCY. THE
UNION CONTENDED THAT THE GRIEVANT AND OTHER INTERESTED ACTIVITY
EMPLOYEES DID NOT KNOW OF THE VACANCY AND CONSEQUENTLY COULD NOT BID ON
IT AND THAT THE GRIEVANT WAS QUALIFIED AS A PAINTER AND COULD HAVE
FILLED THE POSITION. A GRIEVANCE WAS FILED WHICH WAS ULTIMATELY
SUBMITTED TO ARBITRATION.

THE ARBITRATOR'S AWARD

ACCORDING TO THE ARBITRATOR, THE ISSUE BEFORE HIM WAS:

DID THE HOSPITAL VIOLATE THE AGREEMENT IN FILLING A WG-9 PAINTER
VACANCY WITHOUT ANNOUNCING

THE VACANCY ON THE STATION? IF THE ANSWER IS "YES" WHAT WILL BE THE
REMEDY?

THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED ARTICLE XI,
SECTION 7(A) AND (C)(1) OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
/1/ BY NOT POSTING THE VACANCY SINCE ALL INTERESTED EMPLOYEES HAD THUS
NOT BEEN GIVEN "FULL AND FAIR CONSIDERATION" FOR ADVANCEMENT.

ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:

THE HOSPITAL WILL IMMEDIATELY OFFER TO:

1. VACATE THE WG-9 POSITION AND ORDER A NEW PERSONNEL ACTION FOR
   WG-9 PAINTER.

2. POST THE VACANCY FOR 10 CALENDAR DAYS ON 2 OFFICIAL BULLETIN
   BOARDS ON THE STATION AND

ACCEPT APPLICATIONS FOR CONSIDERATION FROM THE EMPLOYEES THAT WERE ON
THE STATION ON FEBRUARY

26, 1978.

3. IF THERE ARE NOT 3 OR MORE HIGHLY QUALIFIED CANDIDATES ON THE
   PROMOTION CERTIFICATE,

THE HOSPITAL MAY ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A CIVIL
SERVICE CERTIFICATE OF

ELIGIBLES AND MANAGEMENT MAY MAKE A SELECTION FROM THE COMBINED LIST
OF HIGHLY QUALIFIED

CANDIDATES ON THE PROMOTION CERTIFICATE, IF THERE ARE ANY, AND THE
HIGHLY QUALIFIED CANDIDATES

ON THE CIVIL SERVICE CERTIFICATE OF ELIGIBLES.

AGENCY'S APPEAL TO THE AUTHORITY

THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATIONS COUNCIL. THIS CASE WAS PENDING BEFORE THE
COUNCIL ON DECEMBER 31, 1978. IN ACCORDANCE WITH SECTION 2400.5 OF THE
TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT THE
AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL. /2/ THE UNION FILED A
BRIEF ON THE MERITS.

OPINION

SECTION 2411.37(A) OF THE AMENDED RULES PROVIDED:

(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED

ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,

OR OTHER SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS.

AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
THAT THE AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL. SINCE THE CIVIL
SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
CONCERNING THE MATTERS INVOLVED HEREIN, AND SINCE UNDER SECTION 902(B)
OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST
BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE
SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE
MATTERS INVOLVED HEREIN) AN INTERPRETATION OF THE RELEVANT CIVIL SERVICE
COMMISSION REGULATIONS AS THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS
CASE. THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
FOLLOWS:

THIS CASE INVOLVED A GRIEVANCE OVER MANAGEMENT'S FAILURE TO POST A
VACANCY ANNOUNCEMENT FOR

A WG-9 PAINTER POSITION, IN ACCORD WITH A CONTRACT PROVISION. THE
ARBITRATOR FOUND THAT THE

VETERANS ADMINISTRATION HAD VIOLATED THE CONTRACT PROVISION BY NOT
POSTING , AND HAD FILLED

THE POSITION BY REQUESTING A CERTIFICATE OF ELIGIBLES FROM THE CIVIL
SERVICE COMMISSION AND

SELECTING AN INDIVIDUAL FROM THE CERTIFICATE FOR THE POSITION.

AT ISSUE HEREIN IS THE THREE-PART ARBITRATION AWARD REQUIRING THE
VETERANS ADMINISTRATION

TO: (1) VACATE THE POSITION AND ORDER A NEW PERSONNEL ACTION TO FILL
THE POSITION; (2) POST A

VACANCY ANNOUNCEMENT FOR THE POSITION SO VACATED IN ACCORDANCE WITH
CONTRACTUAL

PROVISIONS; AND (3) "ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A
CIVIL SERVICE CERTIFICATE

OF ELIGIBLES" ONLY IF POSTING THE VACANCY YIELDS LESS THAN THREE
HIGHLY QUALIFIED CANDIDATES,

AND THEN SELECT OR NOT SELECT FROM THE COMBINED LISTS OF HIGHLY
QUALIFIED CANDIDATES.

FROM THE STANDPOINT OF CIVIL SERVICE COMMISSION RULES AND REGULATIONS
IN EFFECT AT THE

TIME, TWO ISSUES ARISE IN THIS CASE: (1) WHETHER AS PART OF AN
ARBITRATION AWARD IN A

CHALLENGED PROMOTION ACTION AN EMPLOYEE MAY BE REMOVED FROM A
POSITION IN ADVANCE OF OTHER

CORRECTIVE ACTION TO BE TAKEN; AND (2) WHETHER AN ARBITRATION AWARD
MAY LIMIT THE USE OF A

CIVIL SERVICE CERTIFICATE OF ELIGIBLES IN FILLING VACANCIES. THESE
ISSUES RELATE TO PART 1

AND PART 3 OF THE ARBITRATOR'S AWARD, RESPECTIVELY. THE PORTIONS OF
PARTS 1 AND 2 OF THE

ARBITRATOR'S AWARD WHICH ORDER THAT THE PROMOTION ACTION BE RERUN AND
THAT MANAGEMENT FULFILL

ITS CONTRACTUAL POSTING OBLIGATION, DO NOT CONFLICT WITH CIVIL
SERVICE COMMISSION RULES OR

REGULATIONS IN EFFECT AT THE TIME OF THE FILLING OF THE POSITION, OR
OF THE AWARD.

THE FIRST ISSUE, REGARDING WHETHER THE ARBITRATOR MAY ORDER THE
POSITION HEREIN TO BE

VACATED, MUST BE ANSWERED IN THE NEGATIVE. FPM CHAPTER 335-6-4B
STATES THAT AN ERRONEOUSLY

PROMOTED EMPLOYEE "MAY BE RETAINED IN THE POSITION ONLY IF
RECONSTRUCTION OF THE PROMOTION

ACTION SHOWS THAT HE COULD HAVE BEEN SELECTED HAD THE PROPER
PROCEDURE BEEN FOLLOWED AT THE

TIME THE ACTION WAS TAKEN." AN EMPLOYEE, THEREFORE, SHOULD NOT BE
REMOVED FROM A POSITION IN

ADVANCE OF CORRECTIVE ACTION BEING TAKEN UNLESS IT HAS BEEN
DETERMINED BY AN ARBITRATOR OR

OTHER COMPETENT AUTHORITY THAT THE EMPLOYEE/INCUMBENT COULD NOT
PROPERLY HAVE BEEN SELECTED

FOR THE POSITION. MANY CASES DECIDED BY THE FEDERAL LABOR RELATIONS
COUNCIL REFLECT AND APPLY

THIS WELL-ESTABLISHED PRINCIPLE BASED ON FPM REGULATIONS. (DEFENSE
MAPPING AGENCY,

HYDROGRAPHIC CENTER, DEPARTMENT OF DEFENSE AND AFGE LOCAL 3407 FLRC
75A-33; ADJUTANT GENERAL,

STATE OF NEW HAMPSHIRE AND GRANITE STATE CHAPTER, ASSOCIATION OF
TECHNICIANS, FLRC

76A-95; COMMUNITY SERVICES ADMINISTRATION AND NATIONAL COUNCIL OF
CSA LOCALS AFGE, FLRC

76A-154.) IN THE IMMEDIATE CASE, THERE IS NO FINDING THAT THE
INCUMBENT COULD NOT HAVE BEEN

PROPERLY CONSIDERED FOR THE POSITION. IN FACT, UNDER THE
CIRCUMSTANCES OF THIS CASE, ANY SUCH

FINDING WOULD HAVE VIOLATED APPLICABLE REGULATION, SPECIFICALLY CIVIL
SERVICE RULE 7.1 WHICH

MAINTAINED AGENCY DISCRETION IN THE FILLING OF VACANCIES AND
PROVIDED:

IN HIS DISCRETION, AN APPOINTING OFFICER MAY FILL ANY POSITION IN THE
COMPETITIVE SERVICE

EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL SERVICE REGISTER OR BY
NON-COMPETITIVE

SELECTION OF A PRESENT OR FORMER FEDERAL EMPLOYEE, IN ACCORDANCE WITH
CIVIL SERVICE

REGULATIONS.

THUS, THE PART OF THE AWARD ORDERING THAT THE INCUMBENT BE REMOVED
VIOLATED APPLICABLE

CIVIL SERVICE COMMISSION RULES AND REGULATIONS.

THE SECOND ISSUE RAISED HEREIN REGARDING WHETHER THE USE OF A
CERTIFICATE OF ELIGIBLES MAY

BE LIMITED, IS MORE COMPLEX. IT WOULD APPEAR THAT, AS WRITTEN, THE
ARBITRATION AWARD VIOLATES

CIVIL SERVICE RULES AND REGULATIONS, AND THE QUESTION POSED IN THIS
ISSUE THEREFORE MUST ALSO

BE ANSWERED IN THE NEGATIVE.

THE POSSIBLE CONFUSION WHICH EXISTS GOES TO THE PART OF THE
ARBITRATION AWARD WHICH STATES

THAT "IF THERE ARE NOT 3 OR MORE HIGHLY QUALIFIED CANDIDATES ON THE
PROMOTION CERTIFICATE, THE

HOSPITAL MAY ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A CIVIL
SERVICE CERTIFICATE OF

ELIGIBLES . . . " WHILE IT IS NOT DIRECTLY STATED, THE ARBITRATOR
APPEARS TO BE EQUATING THE

USE OF A CERTIFICATE OF ELIGIBLES WITH ENLARGING THE AREA OF
CONSIDERATION. IF THE ARBITRATOR

MEANT MERELY TO LIMIT THE AREA OF CONSIDERATION (REGARDING WHICH A
CERTIFICATE OF ELIGIBLES

HAS NOT RELEVANCE SINCE IT IS AN ADDITIONAL SOURCE OF CANDIDATES, NOT
PART OF AN AREA OF

CONSIDERATION, AND NEITHER IMPACTS UPON NOR IS IMPACTED BY THE AREA
OF CONSIDERATION), HIS

AWARD IN PART 3 WOULD NOT VIOLATE COMMISSION RULES AND REGULATIONS.
IN OTHER WORDS, AREA OF

CONSIDERATION IS A TERM OF ART WITH RESPECT TO FILLING POSITIONS FROM
WITHIN. THE SCOPE OF

THE AREA OF CONSIDERATION MAY BE LIMITED OR EXPANDED BY CONTRACTUAL
PROVISION. RULE 7.1,

CITED ABOVE, HOWEVER, WILL RETAIN TO MANAGEMENT THE RIGHT TO TURN TO
ALL ALTERNATE SOURCES, IN

THIS CASE A CERTIFICATE OF ELIGIBLES, /3/ TO FILL POSITIONS. IF,
HOWEVER, THROUGH

MISUNDERSTANDING OR INTENT, THE ARBITRATOR MEANT TO LIMIT
MANAGEMENT'S RIGHT TO USE ALTERNATE

STAFFING METHODS IN MAKING SELECTIONS, PART 3 OF THE AWARD CLEARLY
VIOLATES CIVIL SERVICE

RULES AND REGULATIONS.

CONCLUSION

BASED UPON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
MANAGEMENT, WE FIND THAT THE PORTION OF PART 1 OF THE ARBITRATOR'S AWARD
WHICH DIRECTS THE ACTIVITY TO "(V)ACATE THE WG-9 POSITION" VIOLATES
APPROPRIATE REGULATIONS AND THEREFORE MUST BE SET ASIDE. ACCORDINGLY,
PURSUANT TO SECTION 2411.37(B) OF THE RULES OF PROCEDURE, WE MODIFY PART
1 OF THE ARBITRATOR'S AWARD BY STRIKING THE FOLLOWING WORDS: "VACATE
THE WG-9 POSITION AND." AS SO MODIFIED, PART 1 OF THE AWARD IS
SUSTAINED.

IN ADDITION, BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF
PERSONNEL MANAGEMENT AND PURSUANT TO SECTION 2411.37(B) OF THE RULES OF
PROCEDURE, WE MODIFY PART 3 OF THE ARBITRATOR'S AWARD BY ADDING THERETO
THE FOLLOWING SENTENCE: "NOTHING IN THIS AWARD SHALL LIMIT THE
HOSPITAL'S RIGHT TO USE ALTERNATE STAFFING METHODS IN MAKING SELECTION."
AS SO MODIFIED, PART 3 OF THE AWARD IS SUSTAINED. /4/ THE STAY
PREVIOUSLY GRANTED IS VACATED.

ISSUED, WASHINGTON, D.C., NOVEMBER 15, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ ACCORDINGLY TO THE ARBITRATOR, ARTICLE XI, SECTION 7(A) AND
(C)(1) PROVIDES, IN RELEVANT PART:

ARTICLE XI

7. PROMOTIONS:

A. POLICY: THE UNION AND THE HOSPITAL AGREE THAT THE PURPOSES AND
INTENT OF THE PROMOTION

POLICY ARE TO ENSURE THAT EMPLOYEES OF THE VA ARE GIVEN FULL AND FAIR
CONSIDERATION FOR

ADVANCEMENT AND TO ENSURE SELECTION FROM AMONG THE BEST QUALIFIED
CANDIDATES.

. . . .

C. PROMOTION ANNOUNCEMENTS

(1) IN ORDER TO ASSURE ALL INTERESTED EMPLOYEES CONSIDERATION FOR
PROMOTION, THE HOSPITAL

SHALL POST LOCAL VACANCIES ON THE TWO OFFICIAL BULLETIN BOARDS FOR
TEN CALENDAR DAYS.

/2/ THE AGENCY REQUESTED, AND THE AUTHORITY GRANTED, PURSUANT TO
SECTION 2411.47(F) OF THE RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING DETERMINATION OF THE APPEAL.

/3/ IN ADDITION TO RULE 7.1, FPM CHAPTER 330, SUBCHAPTER 1-1 STATED,
IN PART:

AN APPOINTING OFFICER MAY CHOOSE THE METHOD TO BE USED FOR FILLING A
COMPETITIVE POSITION

EXCEPT WHEN THAT CHOICE IS LIMITED BY STATUTE OR THE CIVIL SERVICE
REGULATIONS.

/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.