American Federation of Government Employees and Equal Employment Opportunity Commission (Authority decision, July 17, 1984)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

The EEOC posted a supervisory vacancy for 22 days although its negotiated promotion plan set a 20-day maximum. An arbitrator found a contract violation and ordered the agency to repost the position and run the selection process again. The EEOC argued that it had no duty to bargain over supervisory positions and that the award compelled a selection. The Authority found that an agency could voluntarily include supervisory promotion procedures in an agreement and that the arbitrator had interpreted this agreement to do so. It also read the award as requiring a selection process, not an actual hire, and denied the agency's exceptions.

Decision snapshot

• Authority: Review of arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; reposting award upheld.
• Key point: A voluntarily negotiated promotion procedure for supervisory vacancies could be enforced through arbitration.

Full text (FLRA public release)

[ v15 p283 ]

15:0283(63)AR

The decision of the Authority follows:

15 FLRA No. 63

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Agency

Case No. O-AR-403

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Harold C. White filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the filling of a supervisory equal opportunity specialist position. A grievance was filed and submitted to arbitration claiming that the Agency violated the parties' collective bargaining agreement in filling the position. The Arbitrator found that by posting the vacancy announcement for 22 days, the Agency violated the agreement provision providing for a maximum posting period of 20 days. In so ruling the Arbitrator rejected the Agency's argument that the negotiated merit promotion plan of the agreement, including the 20-day rule, was not intended to apply to supervisory positions. To the Arbitrator it was clear that negotiated promotion procedures are permitted to encompass supervisory positions and that the parties' agreement covers employee promotions to supervisory positions. As a remedy the Arbitrator directed the Agency to repost the vacancy and proceed through the selection process to fill the vacancy.

In its first exception the Agency contends that the award is contrary to law. Specifically, the Agency maintains that promotion procedures for non-bargaining unit positions, such as supervisory positions, are outside the obligation to bargain. The Agency further maintains that, with respect to this collective bargaining agreement, it elected not to bargain on promotion procedures for supervisory positions.

The Authority concludes that this exception provides no basis for finding the award deficient. Although promotion procedures for supervisory positions are outside the obligation to bargain, an agency is not prohibited from bargaining on such a matter and therefore may bargain on and agree to promotion procedures for supervisory positions as part of its collective bargaining agreement. /1/ Clearly, once included as part of the collective bargaining agreement, promotion procedures for supervisory positions may properly be enforced through arbitration. See Local 1917, American Federation of Government Employees and United States Immigration and Naturalization Service, Eastern Region, 13 FLRA No. 19 (1983). Therefore, the Authority finds that with the parties having negotiated a merit promotion plan and with the Arbitrator having expressly determined that the plan encompasses supervisory positions and having directed the Agency to meet its negotiated obligations, the Agency's exception fails to establish that the award is contrary to law. The Agency's contention, that the agreement language fails to evidence a clear and unmistakable intention on the part of the Agency to have supervisory positions encompassed by the negotiated merit promotion plan, constitutes nothing more than disagreement with the Arbitrator's interpretation of the agreement and provides no basis for finding the award deficient. E.g., Overseas Education Association and Department of Defense Dependents Schools (DODDS), Pacific Region, 13 FLRA No. 89 (1983).

In its second exception the Agency contends that the Arbitrator violated law by requiring that the Agency make a selection to fill the reannounced position. However, on its face the award only requires that the Agency repost the position and proceed through the selection process. In addition, the Arbitrator specifically stated that the corrective action should conform to established procedures. Thus, the award does not require the Agency to make an actual selection to fill the position, and no basis is provided for finding the award contrary to management's right to select in filling positions. See 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).

Accordingly, the Agency's exceptions are denied.

Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The fact that the parties' collective bargaining agreement in this case was negotiated under the terms of E.O. 11491 is immaterial for purposes of this decision. The dispute arose and the award was issued after the effective date of the Statute. Moreover, the bargaining obligation with respect to promotion procedures has remained unchanged under the Statute. Compare International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980) (Proposal 3) with Texas ANG Council of Locals, AFGE and State of Texas National Guard, 4 FLRC 153 (1976).