Division of Military and Naval Affairs, State of New York and Association of Civilian Technicians, New York Council (Authority decision, August 10, 1979)

Final FLRA decision. This final order changes 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

Three competitive-service clerks challenged a New York National Guard vacancy announcement limited to excepted-service technicians. An arbitrator found that the limit violated the parties' agreement and ordered the Guard to vacate a later appointment, reopen the vacancy, and fill it under merit promotion procedures. After the Office of Personnel Management explained that the remedy would improperly restrict management's selection rights, the Authority set aside that second part of the award. The arbitrator's finding that the announcement violated the agreement remained in place.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. § 2411.37 (1978).
• Outcome: Remedy vacating the appointment and requiring a new competition set aside; agreement-violation finding retained.
• Key point: The award could not require the Guard to fill a vacancy through a restricted merit promotion process.

Full text (FLRA public release)

[ v01 p824 ]

01:0824(94)AR

The decision of the Authority follows:

1 FLRA No. 94

DIVISION OF MILITARY AND
NAVAL AFFAIRS, STATE OF NEW YORK

and

ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., NEW YORK COUNCIL

FLRC No. 78A-54

DECISION ON APPEAL FROM ARBITRATION AWARD

BACKGROUND OF CASE

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
THE ACTIVITY POSTED A VACANCY ANNOUNCEMENT FOR THE POSITION OF MILITARY
PAY EXAMINER, GS-05. THE ANNOUNCEMENT LIMITED APPLICANTS TO TECHNICIAN
EMPLOYEES IN THE EXCEPTED SERVICE. /1/ THE GRIEVANTS WERE THREE GS-4
MILITARY PAY CLERKS WHO WERE IN THE COMPETITIVE SERVICE AND WHO WERE
THEREBY EXCLUDED FROM CONSIDERATION FOR THE POSITION. THEY FILED
GRIEVANCES ALLEGING THAT THE ACTIVITY'S ANNOUNCEMENT LIMITING
ELIGIBILITY TO EXCEPTED SERVICE EMPLOYEES VIOLATED ARTICLE 14, SECTION 6
/2/ OF THE PARTIES AGREEMENT. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
ARBITRATION.

THE ARBITRATOR'S AWARD

THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED THE
NEGOTIATED AGREEMENT SINCE ARTICLE 14, SECTION 6 PROVIDES THAT
QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE CONTAINED IN
OFFICIAL JOB DESCRIPTIONS AND THE OFFICIAL JOB DESCRIPTION FOR THE
POSITION IN QUESTION PROVIDES THAT BOTH EXCEPTED AND COMPETITIVE
EMPLOYEES ARE QUALIFIED TO APPLY FOR SUCH POSITION.

ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:

1. MANAGEMENT DID VIOLATE ARTICLE 14 OF THE COLLECTIVE AGREEMENT
   BETWEEN THE PARTIES

("MERIT PROMOTION") WHEN IT DETERMINED ON 25 NOVEMBER 1975 THAT IT
WOULD ONLY CONSIDER

ELIGIBLE FOR APPOINTMENT TO THE POSITION MILITARY PAY EXAMINER
(GS-05) APPLICANTS WHO ARE

MEMBERS OF THE NEW YORK ARMY NATIONAL GUARD (EXCEPTED EMPLOYEES).

2. MANAGEMENT SHALL VACATE ITS WRONGFUL PERMANENT APPOINTMENT TO THE
   POSITION REFERRED TO

IN THE PRECEDING PARAGRAPH, ANNOUNCE ITS VACANCY WITHOUT RESTRICTION
TO EXCEPTED EMPLOYEES AND

FILL THE VACANCY IN ACCORD WITH ARTICLE 14 OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.

AGENCY'S APPEAL TO THE AUTHORITY

THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATIONS COUNCIL. UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD INSOFAR AS IT RELATED TO THE AGENCY'S
EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
SPECIFICALLY THE FEDERAL PERSONNEL MANUAL. /3/ THE UNION FILED A BRIEF
ON THE MERITS. /4/

OPINION

IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE AUTHORITY (44 FED.REG. 7) AND SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS 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.

SECTION 2411.37(A) OF THE RULES AS SO AMENDED PROVIDES:

(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 GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT

RELATIONS.

AS PREVIOUSLY STATED, THE FEDERAL LABOR RELATIONS COUNCIL ACCEPTED
THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S
EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
SPECIFICALLY THE FEDERAL PERSONNEL MANUAL. THEREAFTER, IN ACCORDANCE
WITH ESTABLISHED PRACTICE, THE COUNCIL REQUESTED FROM THE CIVIL SERVICE
COMMISSION AN INTERPRETATION OF THE RELEVANT COMMISSION REGULATIONS AS
THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS CASE. THE OFFICE OF
PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) REPLIED IN
RELEVANT PART AS FOLLOWS:

THE GRIEVANTS ALLEGE THAT AGENCY MANAGEMENT VIOLATED THE NEGOTIATED
AGREEMENT BY LIMITING

ELIGIBILITY FOR A VACANT MILITARY PAY EXAMINER POSITION ANNOUNCED
UNDER THE AGENCY MERIT

PROMOTION PROGRAM TO EXCEPTED EMPLOYEES. THEY CLAIM THAT ARTICLE 14
OF THE AGREEMENT REQUIRES

THAT VACANCIES IN THE UNIT BE OPEN TO ALL QUALIFIED UNIT EMPLOYEES,
WHETHER THEY ARE IN THE

COMPETITIVE OR EXCEPTED SERVICE. BECAUSE OF A HIRING FREEZE, THE
VACANCY ANNOUNCEMENT AT

ISSUE WAS WITHDRAWN AND A COMPETITIVE SERVICE TECHNICIAN WAS
REASSIGNED TO THE VACANT

POSITION.

THE ARBITRATOR FOUND THAT MANAGEMENT HAD VIOLATED THE AGREEMENT BY
LIMITING CONSIDERATION

UNDER THE VACANCY ANNOUNCEMENT TO EXCEPTED EMPLOYEES. THE PERTINENT
PART OF ARTICLE 14

REQUIRES THAT QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE
CONTAINED IN OFFICIAL JOB

DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.
THE ARBITRATOR ORDERED

MANAGEMENT TO VACATE ITS WRONGFUL PERMANENT APPOINTMENT (MADE
SUBSEQUENT TO CANCELLATION OF

THE VACANCY ANNOUNCEMENT BY LATERAL REASSIGNMENT), REANNOUNCE THE
VACANCY UNDER MERIT

PROMOTION PROCEDURES WITHOUT RESTRICTION TO EXCEPTED EMPLOYEES, AND
FILL IT IN ACCORDANCE WITH

THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.

RULE 7.1 OF THE CIVIL SERVICE RULES GRANTS AN AGENCY THE RIGHT, WHICH
MAY NOT BE GIVEN UP

BILATERALLY, TO SELECT OR NON-SELECT CANDIDATES FROM A PROMOTION
CERTIFICATE OR TO SELECT OR

NON-SELECT FROM ANY OTHER APPROPRIATE SOURCE. THAT RIGHT IS FURTHER
ARTICULATED IN

REQUIREMENT 4 OF FPM CHAPTER 335.

AN AGENCY MAY PROPERLY BE REQUIRED TO RECONSTRUCT OR REPROCESS A
PROMOTION ACTION IN WHICH

AN ERROR OR VIOLATION HAS OCCURRED, AND THE INCUMBENT MAY BE REMOVED
FROM THE POSITION PRIOR

TO THE NEW COMPETITION IF HE COULD NOT PROPERLY HAVE BEEN SELECTED IN
THE FIRST

INSTANCE. HOWEVER, A RULING IN A CASE LIKE THIS ONE TO RERUN A
PROMOTION ACTION THAT WAS NOT

COMPLETED IS NECESSARILY WITHOUT EFFECT SINCE MANAGEMENT COULD NOT BE
CONSTRAINED TO SELECT

FROM THE CANDIDATES WHO APPLIED UNDER A NEW VACANCY ANNOUNCEMENT ANY
MORE THAN IT COULD HAVE

BEEN REQUIRED TO COMPLETE THE SELECTION PROCESS UNDER MERIT PROMOTION
PROCEDURES.

BASED ON THE ABOVE ANALYSIS, WE BELIEVE THAT THE ARBITRATOR'S AWARD
IN THIS CASE CONFLICTS

WITH CIVIL SERVICE RULE 7.1 AND REQUIREMENT 4 OF FPM CHAPTER 335.

BASED UPON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
MANAGEMENT, WE FIND THAT PART 2 OF THE ARBITRATOR'S AWARD VIOLATES
APPROPRIATE REGULATIONS AND, THEREFORE, MUST BE SET ASIDE.

CONCLUSION

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
RULES OF PROCEDURE, WE HEREBY SET ASIDE PART 2 OF THE ARBITRATOR'S
AWARD. /5/

ISSUED, WASHINGTON, D.C., AUGUST 10, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ ACCORDING TO THE ARBITRATOR, TECHNICIAN EMPLOYEES ARE IN EITHER
THE COMPETITIVE SERVICE OR THE EXCEPTED SERVICE. EMPLOYEES IN THE
EXCEPTED SERVICE, AS A CONDITION OF EMPLOYMENT, MUST MAINTAIN MILITARY
STATUS IN THE NATIONAL GUARD. EMPLOYEES IN THE COMPETITIVE SERVICE HAVE
NO SUCH MILITARY OBLIGATION. BOTH CLASSES OF EMPLOYEES ARE COVERED BY
THE RELEVANT PROVISIONS OF THE AGREEMENT.

/2/ ACCORDING TO THE ARBITRATOR, ARTICLE 14, SECTION 6, PROVIDES:

QUALIFICATION STANDARDS WILL BE IN ACCORDANCE WITH THOSE CONTAINED IN
OFFICIAL JOB

DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.

/3/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING DETERMINATION OF THE APPEAL.

/4/ THE UNION OBJECTED TO CERTAIN DOCUMENTS THAT WERE PART OF THE
PUBLIC RECORD OF THE PROCEEDINGS BEFORE THE ARBITRATOR FORWARDED BY THE
AGENCY. SINCE THESE DOCUMENTS WERE NOT RELIED UPON IN REACHING THE
DECISION IN THIS CASE, THE AUTHORITY DEEMS IT UNNECESSARY TO PASS ON THE
UNION'S OBJECTION.

/5/ 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.