Veterans Administration, Audie L. Murphy Memorial Veterans Hospital and American Federation of Government Employees, Local 3511 (Authority decision, September 29, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator ordered the veterans hospital to announce a supervisory clerk vacancy for competition after finding that it had bypassed merit promotion procedures. The hospital argued that the award intruded on management rights and improperly involved classification or excluded supervisory positions. The Authority found no showing that announcing the vacancy violated those limits. It denied the hospital’s exception and left the award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7121(c)(5).
• Outcome: Agency exception denied; competitive vacancy announcement award stands.
• Key point: Requiring an announcement under the merit promotion plan did not itself classify a position or restrict management’s choice of candidate.

Full text (FLRA public release)

[ v13 p173 ]

13:0173(36)AR

The decision of the Authority follows:

13 FLRA No. 36

VETERANS ADMINISTRATION,
AUDIE L. MURPHY MEMORIAL
VETERANS' HOSPITAL
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3511
Union

Case No. O-AR-253

DECISION

This matter is before the Authority on an exception to the award of Arbitrator John F. Caraway filed by the Activity 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 filed an opposition.

The dispute in this case concerns the filling of a supervisory clerk position at the Activity. The Activity reassigned an employee from her position of clerk typist, GS-5, to the position of supervisory clerk, GS-5. Thereafter, the supervisory clerk position was audited and was reclassified at GS-6. On the basis of the record before the Authority, it appears that the employee assigned to the supervisory clerk position was noncompetitively promoted to the position of supervisory clerk, GS-6. A grievance was filed and submitted to arbitration protesting the failure of the Activity to announce the vacancy in the position of supervisory clerk under the merit promotion plan.

The Arbitrator determined that the Activity violated the parties' collective bargaining agreement, the merit promotion plan, and federal personnel regulations by failing to announce the position vacancy of supervisory clerk. Accordingly, as his award, the Arbitrator ordered the Activity to "immediately announce the job of supervisory clerk and place that job up for competition in accordance with the Agreement and the Plan." The Arbitrator also specified that the incumbent employee would continue to retain the position of supervisory clerk and would not be barred from submitting her application for the position.

In its exception the Activity contends that the award "violates retained management rights by extending the scope of collective bargaining, includes positions in the bargaining unit excluded by the Statute, and allows classification issues to be brought forth under a grievance procedure in violation of the Statute." Based on the record before the Authority, including the contentions of the parties, the Authority concludes that the exception provides no basis for finding the award deficient. In the first place, it has not been demonstrated that by determining that the Activity was obligated under the terms of regulation, the merit promotion plan, and the parties' agreement to announce the vacancy in the supervisory clerk position for merit promotion, the Arbitrator in his award included "positions in the bargaining unit excluded by the Statute." Likewise, it has not been shown that either the grievance or the award concerns the classification of any position within the meaning of section 7121(c)(5) of the Statute. Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA No. 69 (1982). Similarly, it has not been established that the award "violates retained management rights by extending the scope of collective bargaining." As noted, the Arbitrator has simply ordered the announcement of the vacancy primarily in accordance with the express requirements of the Activity's merit promotion plan and the award in no manner constitutes a restriction on the applicants or appropriate sources which management could consider or from which management could select in filling the position of supervisory clerk. See National Treasury Employees Union and Internal Revenue Service, 7 FLRA No. 42 (1981) (Proposal 4); American Federation of Government Employees, AFL-CIO, International Council of United States Marshals Service Locals and Department of Justice, United States Marshals Service, 2 FLRA 764 (1980).

Finally, the Activity additionally appears to argue that the award is deficient because the incumbent employee was noncompetitively promoted to GS-6 as the result of the upgrading of the supervisory clerk position without a significant change in duties and responsibilities due to the correction of an initial classification error. In this respect the Activity maintains that such a promotion is specifically excluded from the application of competitive procedures by the merit promotion plan and by Federal Personnel Manual chapter 335. /1/ However, the Activity's bare statement alone as to the basis for the reclassification does not substantiate that the position in fact was upgraded without a significant change in duties and responsibilities due to the correction of an initial classification error, and consequently does not establish that the Arbitrator's award ordering announcement of the position is deficient.

Accordingly, the Agency's exception is denied. Issued, Washington, D.C., September 29, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ FPM chapter 335, subchapter 1-5b(1) provides that competitive procedures do not apply to a "promotion resulting from the upgrading of a position without significant change in duties and responsibilities due to . . . the correction of an initial classification error."