09:0433(53)AR - National Bureau of Standards, Boulder Laboratories and AFGE Local 2186 -- 1982 FLRAdec AR (Authority decision, July 16, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving exceptions to an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes orders under § 7122 from direct judicial review unless the order involves an unfair labor practice under 5 U.S.C. § 7118.

Plain-English summary

An arbitrator found that the National Bureau of Standards Boulder Laboratories violated its merit promotion program in filling an electrician foreman position. The agency challenged a conditional remedy involving reassignment and a new selection. The Authority denied the exceptions because the remedy depended on free consent and did not force an agreement or make the award impossible to implement.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; arbitration award upheld.
• Key point: A conditional remedy was not deficient merely because consent seemed unlikely.

Full text (FLRA public release)

[ v09 p433 ]

09:0433(53)AR

The decision of the Authority follows:

9 FLRA No. 53

NATIONAL BUREAU OF STANDARDS,
BOULDER LABORATORIES
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2186
Union

Case No. O-AR-207

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR JOSEPH LAZAR FILED BY THE AGENCY 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 UNION DID NOT
FILE AN OPPOSITION.

THE DISPUTE IN THIS CASE AROSE OVER THE MERIT PROMOTION PROCEDURES
APPLIED BY THE ACTIVITY TOWARD THE SELECTION FOR THE POSITION OF
ELECTRICIAN FOREMAN, WS-9, UNDER VACANCY ANNOUNCEMENT NBS/BL 79-124. A
GRIEVANCE WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO
ARBITRATION.

THE ARBITRATOR MADE THE FOLLOWING AWARD:

1. THE NATIONAL BUREAU OF STANDARDS/BOULDER LABORATORIES VIOLATED
   THE MERIT PROMOTION

PROGRAM.

2. STRICTLY SUBJECT TO THE ABSOLUTE CONDITION OF MUTUALLY GIVEN FREE
   CONSENT BY THE

MANAGEMENT AND BY THE SUCCESSFUL CANDIDATE OCCUPANT OF THE POSITION
OF ELECTRICIAN FOREMAN,

AND BASED STRICTLY ON THE CONDITION OF SUCH FREELY GIVEN MUTUAL
CONSENT, CONSIDERATION SHALL

BE GIVEN BY THE MANAGEMENT, THE SUCCESSFUL CANDIDATE OCCUPANT, AND
THE UNION, TO THE

POSSIBILITY OF REASSIGNMENT OF THE SUCCESSFUL CANDIDATE OCCUPANT TO
ANOTHER WAGE SUPERVISORY

POSITION. IN THE EVENT OF SUCH REASSIGNMENT, THEN NBS/BL SHALL
READVERTISE THE ELECTRICIAN

FOREMAN JOB, NOT ALLOW THE PERSON ORIGINALLY SELECTED (SUCCESSFUL
CANDIDATE OCCUPANT) TO

REAPPLY, REPANEL THE NEW APPLICANTS, AND MAKE A NEW SELECTION.

3. THIS AWARD CONTEMPLATES THAT "MANAGEMENT'S PROPOSED RESOLUTION"
   SHALL DEVELOP ALONG THE

LINES STATED IN THE MANAGEMENT'S BRIEF, I.E.:

NBS WILL CONDUCT A CLOSER EVALUATION OF CASES PROCESSED BY ITS
PERSONNEL MANAGEMENT

SPECIALISTS TO ASSURE THAT NO ERRORS INCLUDING THE TYPE COMMITTED IN
THIS CASE REOCCUR. IN

FACT, NBS HAS BEGUN DEVELOPMENT OF A GUIDE TO BE USED BY OUR
PERSONNEL MANAGEMENT SPECIALISTS

IN PROCESSING MERIT PROMOTION ACTIONS. THIS GUIDE WILL BE USED IN
CONJUNCTION WITH NBS' NEW

MERIT ASSIGNMENT PLAN, FORMERLY KNOWN AS THE MERIT PROMOTION PROGRAM
PLAN. FURTHERMORE, NBS

WILL DEVELOP AND MAKE AVAILABLE TO EMPLOYEES IN LOCAL 2186, A 20-HOUR
SUPERVISORY TRAINING

PROGRAM. THIS TRAINING WILL HELP PREPARE BARGAINING UNIT EMPLOYEES
TO UNDERSTAND THE ROLE AND

RESPONSIBILITIES OF A SUPERVISOR. THE TRAINING, WHEN COMPLETED, WILL
BETTER PREPARE A

BARGAINING UNIT EMPLOYEE TO COMPETE FOR SUPERVISORY JOBS AS THEY
BECOME OPEN IN THE

FUTURE. THIS TRAINING WILL BE AVAILABLE WITHIN 60 DAYS OF THE
ARBITRATOR'S DECISION.

4. THE ARBITRATOR RESERVES JURISDICTION OVER DISPUTES ARISING OUT OF
   THE INTERPRETATION OR

APPLICATION OF THIS AWARD.

THE AGENCY'S EXCEPTIONS TO THE AWARD ONLY RELATE TO PARAGRAPH 2. IN
ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT IMPLEMENTATION OF THIS
PORTION OF THE AWARD "IS AN IMPOSSIBILITY." IN PARTICULAR, THE AGENCY
MAINTAINS THAT THE GRIEVANCE WOULD NOT HAVE BEEN ORIGINALLY SUBMITTED TO
ARBITRATION IF MANAGEMENT AND THE UNION HAD BEEN ABLE TO MUTUALLY AGREE
TO SUCH A SOLUTION. SIMILARLY, THE AGENCY CLAIMS THAT BY SUCH AN AWARD
THE ARBITRATOR FAILED TO FULFILL HIS RESPONSIBILITY TO ISSUE A DECISION
AND HAS RETURNED THE CASE BACK TO THE PARTIES WITHOUT A RESOLUTION.

THIS EXCEPTION AND SUPPORTING ASSERTIONS DO NOT ESTABLISH THAT THE
AWARD IS IN ANY MANNER DEFICIENT. IT IS CLEAR THAT THE AGENCY'S
IMPLEMENTATION ARGUMENT IS ONLY THAT THE MUTUAL AGREEMENT OF THE PARTIES
AND THE SUCCESSFUL CANDIDATE IS IMPROBABLE AND UNLIKELY. HOWEVER, SUCH
AN ARGUMENT, BASED SOLELY ON THE "LIKELIHOOD" OF A FUTURE AGREEMENT,
DOES NOT PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT AS INCOMPLETE,
AMBIGUOUS, OR CONTRADICTORY SO AS TO MAKE IMPLEMENTATION IMPOSSIBLE.
SEE, E.G., DELAWARE NATIONAL GUARD, WILMINGTON, DELAWARE AND ASSOCIATION
OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER, 5 FLRA NO. 9 (1981).
LIKEWISE, THE AGENCY HAS NOT DEMONSTRATED THAT THE ARBITRATOR FAILED TO
ISSUE A DECISION. IN FULL RESOLUTION OF THE GRIEVANCE SUBMITTED, THE
ARBITRATOR EXPRESSLY RULED THAT THE ACTIVITY HAD VIOLATED THE MERIT
PROMOTION PLAN AND AS PART OF HIS REMEDY FOR THAT VIOLATION HE EXPRESSLY
ADOPTED "MANAGEMENT'S PROPOSED RESOLUTION." ALTHOUGH THE ARBITRATOR
SUGGESTED CERTAIN ADDITIONAL RELIEF, CONDITIONED ON THE CONSENT OF THE
PARTIES AND THE SUCCESSFUL CANDIDATE, SUCH CONDITIONED RELIEF CERTAINLY
DOES NOT ESTABLISH THAT THE ARBITRATOR RETURNED THE CASE TO THE PARTIES
UNRESOLVED.

IN ITS SECOND EXCEPTION THE AGENCY PRINCIPALLY CONTENDS THAT WERE
PARAGRAPH 2 OF THE AWARD MUTUALLY AGREED TO, IT WOULD BE CONTRARY TO 5
CFR PART 335 AND FPM CHAPTER 335 BECAUSE THE AWARD IMPROPERLY WOULD
REQUIRE THAT THE SUCCESSFUL CANDIDATE BE REMOVED FROM THE POSITION IN
ADVANCE OF RERUNNING THE ACTION AND IMPROPERLY WOULD PRECLUDE THE
SUCCESSFUL CANDIDATE FROM REAPPLYING FOR THE POSITION WHEN RERUN.
HOWEVER, THIS EXCEPTION DOES NOT ESTABLISH THAT THE AWARD IS DEFICIENT.

AS NOTED, THE ARBITRATOR IN PARAGRAPH 2 OF THE AWARD HAS NOT ORDERED
THE ACTIVITY TO COMPLY WITH CERTAIN PRESCRIBED CORRECTIVE ACTION.
INSTEAD, THE ARBITRATOR HAS ONLY SUGGESTED CERTAIN FURTHER RELIEF AND
HAS ABSOLUTELY CONDITIONED SUCH RELIEF ON THE CONSENT OF THE PARTIES AND
THE SUCCESSFUL CANDIDATE AND THE EVENTUALITY OF AN AGREEABLE
REASSIGNMENT OF THE SUCCESSFUL CANDIDATE. IN SUCH CIRCUMSTANCES THERE
IS NO DEMONSTRATION THAT IMPLEMENTATION OF THE AWARD CANNOT BE FULLY
CONSISTENT WITH GOVERNING LAW AND REGULATION. SEE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1332 AND UNITED STATES ARMY MATERIEL
DEVELOPMENT AND READINESS COMMAND HEADQUARTERS, 7 FLRA NO. 95 (1982) (IN
WHICH THE AGENCY'S EXCEPTION TO AN ALTERNATIVE DISPOSITION OFFERED BY
THE ARBITRATION AWARD WAS DENIED ON THE BASIS THAT ANOTHER ALTERNATIVE
PROVIDED FOR A PROPER RESOLUTION OF THE DISPUTE). HOWEVER, AS INDICATED
IN NFFE LOCAL 1332, IN IMPLEMENTING THE AWARD THE PARTIES ARE GOVERNED
BY CONTROLLING LAW AND REGULATION. THUS, IN THE EVENT OF THE REQUISITE
CONSENT AND A MUTUALLY AGREEABLE REASSIGNMENT OF THE SUCCESSFUL
CANDIDATE, THE RERUNNING OF THE ACTION BY THE ACTIVITY MUST FULLY
CONFORM WITH CONTROLLING LAW AND REGULATION AND THE COLLECTIVE
BARGAINING AGREEMENT. SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, AREA III AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231, 8 FLRA NO. 50 AT 2N. (1982);
THE ADJUTANT GENERAL, STATE OF OKLAHOMA, AIR NATIONAL GUARD AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, WILL ROGERS AIR NATIONAL GUARD LOCAL
3953, 8 FLRA NO. 23 (1982).

FOR THESE REASONS THE AGENCY'S EXCEPTIONS ARE DENIED. ISSUED,
WASHINGTON, D.C., JULY 16, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY