U.S. Naval Station, Mayport, Florida (Activity) and American Federation of Government Employees, Local 2010, AFL-CIO (Union) (Authority decision, June 18, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

At Mayport Naval Station, an arbitrator relied on an expired agreement’s rotation rule to grant a worker a chance to serve as acting foreman and to redo a promotion action. The Authority found that the station had properly ended the rule as to supervisory positions after the agreement expired. It set aside the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a)(1).
• Outcome: Agency exception granted; arbitration award set aside.
• Key point: A terminated permissive provision for supervisory assignments could not support the award.

Full text (FLRA public release)

[ v06 p133 ]

06:0133(26)AR

The decision of the Authority follows:

6 FLRA No. 26

U.S. NAVAL STATION,
MAYPORT, FLORIDA
Activity

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2010, AFL-CIO
Union

Case No. O-AR-44

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR ROBERT T. AMIS FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
CONCERNED A PROMOTION TO A FIRST LEVEL SUPERVISORY POSITION OF
AUTOMOTIVE MECHANIC FOREMAN. THE DISPUTE AROSE AFTER THE PARTIES'
NEGOTIATED AGREEMENT HAD EXPIRED. WHEN THE AGREEMENT EXPIRED IN JULY
1978, THE ACTIVITY TOOK TWO ACTIONS. FIRST, INSTRUCTIONS WERE ISSUED TO
ALL SUPERVISORS WHICH PROVIDED IN PART:

SUPERVISORS ARE REMINDED THAT UPON THE EXPIRATION OF A NEGOTIATED
AGREEMENT, PERSONNEL

POLICIES, PRACTICES AND WORKING CONDITIONS AFFECTING UNIT EMPLOYEES
WHETHER OR NOT CONTAINED

IN THE NEGOTIATED AGREEMENT CONTINUE AS ESTABLISHED AND MAY NOT BE
UNILATERALLY CHANGED EXCEPT

UNDER SPECIAL CIRCUMSTANCES.

SECOND, THE ACTIVITY'S COMMANDING OFFICER NOTIFIED THE PRESIDENT OF
THE UNION THAT MANAGEMENT WOULD NOT MAINTAIN THE PROVISIONS OF ARTICLE
XXIII OF THE EXPIRED AGREEMENT WITH RESPECT TO FIRST LEVEL SUPERVISORY
POSITIONS. ARTICLE XXIII, SECTION 8 OF THE EXPIRED AGREEMENT HAD
PERTINENTLY PROVIDED:

A. THE EMPLOYER AGREES TO MAKE TEMPORARY PROMOTIONS OF AN EMPLOYEE
WHO IS ASSIGNED TO

PERFORM HIGHER LEVEL WORK WITHIN HIS/HER OWN ORGANIZATION WHEN THERE
EXISTS A NEED FOR SUCH

WORK TO BE PERFORMED FOR A PERIOD OF MORE THAN TWO (2) WEEKS.

B. IT IS AGREED THAT THE EMPLOYER MAY MAKE A TEMPORARY PROMOTION
LIMITED TO SIXTY (60)

DAYS OR LESS WHEN IT IS NECESSARY TO FILL A POSITION WITHOUT DELAY.
WHEN IT IS DETERMINED

THAT THERE EXISTS A POSSIBILITY THAT THE TEMPORARY PROMOTION TO A
HIGHER LEVEL POSITION WILL

BE FOR A PERIOD OF MORE THAN SIXTY (60) DAYS THE EMPLOYER AND THE
UNION WILL MEET TO DETERMINE

IF THE TEMPORARY PROMOTION SHOULD BE MADE UNDER MERIT PROMOTION
PROCEDURES.

C. IN ALL CASES WHERE EXPERIENCE RESULTING FROM PERFORMING HIGHER
LEVEL WORK ASSIGNMENT OF

SIXTY (60) DAYS OR MORE WOULD PROVIDE QUALIFYING EXPERIENCE FOR A
LATER PROMOTION WITHIN THE

ACTIVITY, COMPETITIVE PROCEDURES WILL BE USED. REPETITIVE TEMPORARY
ASSIGNMENTS TO HIGHER

LEVEL DUTY PERFORMANCE OF LESS THAN SIXTY DAYS WILL NOT BE GIVEN TO
THE SAME EMPLOYEE IN SUCH

A MANNER AS TO CIRCUMVENT COMPETITIVE REQUIREMENTS OR MERIT
PRINCIPLES BUT WILL BE ROTATED TO

THE MAXIMUM EXTENT AMONG BEST QUALIFIED EMPLOYEES OF THE IMMEDIATE
ORGANIZATION WHERE THE

TEMPORARY VACANCY EXISTS.

THEREAFTER, IN AUGUST 1978, THE VACANCY OCCURRED, IN THE FOREMAN
POSITION AND THE ACTIVITY TEMPORARILY PROMOTED AN EMPLOYEE TO THE
POSITION. A PERMANENT VACANCY IN THE POSITION WAS ANNOUNCED IN OCTOBER
1978. FOUR OF SEVEN QUALIFIED APPLICANTS FOR THE POSITION WERE RATED
HIGHLY QUALIFIED INCLUDING THE EMPLOYEE TEMPORARILY PROMOTED TO THE
POSITION AND THE GRIEVANT, WHO RECEIVED THE HIGHEST RATING.

BY THIS TIME THE LENGTH OF THE TEMPORARY PROMOTION HAD EXCEEDED 60
DAYS. THE UNION PROTESTED THE CONTINUATION OF THAT TEMPORARY PROMOTION
AND REQUESTED THAT OTHER QUALIFIED EMPLOYEES BE ROTATED INTO THE
POSITION IN ACCORDANCE WITH "ESTABLISHED PRACTICES." THE UNION
APPARENTLY VIEWED ARTICLE XXIII, SECTION 8 OF THE EXPIRED AGREEMENT,
PARTICULARLY THE ROTATION PROVISION OF SUBSECTION C, AS CONSTITUTING
ESTABLISHED PRACTICES THAT WERE TO BE CONTINUED. THE ACTIVITY DENIED
THE REQUEST. THE ACTIVITY APPARENTLY VIEWED THE UNION'S REQUEST AS
BASED ON PROVISIONS OF ARTICLE XXIII, SECTION 8 THAT HAD NOT BEEN
MAINTAINED BECAUSE THE FOREMAN POSITION WAS A FIRST LEVEL SUPERVISORY
POSITION.

IN NOVEMBER 1978, THE EMPLOYEE WHO HAD BEEN TEMPORARILY PROMOTED TO
THE POSITION WAS SELECTED FOR THE PERMANENT POSITION. THE GRIEVANT
FILED A GRIEVANCE PROTESTING THAT SELECTION, AND THE GRIEVANCE WAS
ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR FOUND THAT THE ACTIVITY VIOLATED "THE PARTIES' OWN 60
DAY RULE" WHEN IT REFUSED TO ROTATE THE ENCUMBENCY OF THE FOREMAN
POSITION AT THE EXPIRATION OF 60 DAYS. THE ARBITRATOR WAS APPARENTLY
REFERRING TO THE PROVISION OF ARTICLE XXIII, SECTION 8C THAT SUCH
ASSIGNMENTS WOULD BE ROTATED AFTER 60 DAYS. THE ARBITRATOR RULED THAT
THIS REFUSAL BY THE ACTIVITY WAS CONTRARY TO THE INSTRUCTIONS THAT
ESTABLISHED PRACTICES WERE TO BE CONTINUED. HE NOTED THAT WITH RESPECT
TO OTHER FIRST LEVEL SUPERVISORY POSITIONS SUCH ESTABLISHED PRACTICES
WERE FOLLOWED. THE ARBITRATOR CONCLUDED THAT AS A RESULT OF THIS
VIOLATION THE "GRIEVANT WAS DENIED THE OPPORTUNITY TO DEMONSTRATE HIS
ABILITY TO PERFORM THE JOB." ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR
SUSTAINED THE GRIEVANCE AND ORDERED:

GRIEVANT, AS THE CANDIDATE WITH THE HIGHEST NUMERICAL RATING, SHALL
BE GIVEN AN OPPORTUNITY

TO PERFORM IN THE JOB OF AUTOMOTIVE MECHANIC FOREMAN FOR A PERIOD OF
NOT LESS THAN THE 33 DAYS

WHICH WOULD HAVE BEEN ROTATED BUT FOR THE FAILURE OF MANAGEMENT TO
FOLLOW ESTABLISHED

PROCEDURES. UPON COMPLETION OF THIS PERIOD, THE PROMOTION ACTION FOR
THE POSITION OF

AUTOMOTIVE MECHANIC FOREMAN SHALL BE RECONSTITUTED.

THE AGENCY HAS FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
CFR PART 2425. /2/ THE UNION DID NOT FILE AN OPPOSITION.

IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
AWARD IS CONTRARY TO LAW. IN SUPPORT OF THIS EXCEPTION, THE AGENCY
PRINCIPALLY ARGUES THAT THE AWARD IS CONTRARY TO THE DECISION OF THE
FEDERAL LABOR RELATIONS COUNCIL IN INTERNAL REVENUE SERVICE, OGDEN
SERVICE CENTER WHICH SET FORTH THE APPLICABLE PRINCIPLES RESPECTING THE
RIGHTS AND OBLIGATIONS OF THE PARTIES AFTER THE EXPIRATION OF THEIR
AGREEMENT IN JULY 1978 AND AT THE TIME THIS GRIEVANCE AROSE AT THE END
OF 1978. /3/ ON THIS BASIS THE AGENCY CLAIMS THAT THE ACTIVITY PROPERLY
REFUSED TO ROTATE THE ASSIGNMENT TO THE FOREMAN POSITION AND THEREFORE
THE ARBITRATOR'S AWARD, ORDERING THAT THE GRIEVANT BE GIVEN AN
OPPORTUNITY TO PERFORM IN THE FOREMAN POSITION AND ORDERING THAT THE
PROMOTION ACTION FOR THE POSITION BE RECONSTITUTED, IS DEFICIENT.

PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY MAY FIND
AN AWARD DEFICIENT ON THE GROUND THAT THE AWARD IS CONTRARY TO LAW. ON
THE BASIS OF THE AGENCY'S EXCEPTION AND FOR THE REASONS THAT FOLLOW, THE
AUTHORITY FINDS THAT THE ARBITRATOR'S AWARD IS DEFICIENT.

AS WAS NOTED, THE PARTIES' AGREEMENT EXPIRED IN JULY 1978 AND THE
ACTIVITY ISSUED INSTRUCTIONS THAT EXISTING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WOULD CONTINUE AS
ESTABLISHED. AT THE SAME TIME, AND BEFORE THE GRIEVANCE IN THIS CASE
AROSE, THE ACTIVITY ALSO ADVISED THAT THE AGREEMENT PROVISIONS OF
ARTICLE XXIII, SECTION 8 WOULD NOT BE MAINTAINED WITH RESPECT TO FIRST
LINE SUPERVISORY POSITIONS. THE AGENCY HAS MAINTAINED THAT BOTH OF
THESE ACTIONS BY THE ACTIVITY WERE FULLY CONSISTENT WITH IRS, OGDEN
SERVICE CENTER, SUPRA. IN THAT CASE THE FEDERAL LABOR RELATIONS COUNCIL
SET FORTH THE RIGHTS AND OBLIGATIONS OF PARTIES AFTER THE EXPIRATION OR
TERMINATION OF THEIR NEGOTIATED AGREEMENT. THE COUNCIL HELD THAT
EXISTING PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED AGREEMENT,
CONTINUE AS ESTABLISHED AFTER THE EXPIRATION OF A NEGOTIATED AGREEMENT
UNLESS MODIFIED OR TERMINATED IN A MANNER CONSISTENT WITH EXECUTIVE
ORDER 11491, AS AMENDED. THUS, IT WAS PURSUANT TO THIS OBLIGATION THAT
THE ACTIVITY ISSUED INSTRUCTIONS MAINTAINING THESE ESTABLISHED PRACTICES
AFTER THE AGREEMENT HAD EXPIRED.

HOWEVER, IN THAT CASE THE COUNCIL ALSO HELD:

(A)GENCY MANAGEMENT, UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT,
RETAINS THE RIGHT TO

UNILATERALLY CHANGE PROVISIONS CONTAINED THEREIN RELATING TO
"PERMISSIVE" SUBJECTS OF

BARGAINING . . . AND EITHER PARTY MAY CHANGE MATTERS WHICH ARE
OUTSIDE THE SCOPE OF SUCH

OBLIGATION UNDER SECTION 11(A) OF THE ORDER. 6 FLRC AT 319.

THE AGENCY HAS ARGUED THAT IT WAS PURSUANT TO THIS RIGHT TO "CHANGE
MATTERS WHICH ARE OUTSIDE THE SCOPE OF SUCH OBLIGATION UNDER SECTION
11(A) OF THE ORDER" THAT THE ACTIVITY REFUSED TO MAINTAIN THE EXPIRED
AGREEMENT PROVISIONS OF ARTICLE XXIII, SECTION 8 WITH RESPECT TO FIRST
LINE SUPERVISORY POSITIONS INCLUDING THE FOREMAN POSITION IN THIS CASE.
THE AGENCY'S POSITION IS THAT THESE PROVISIONS AS THEY PERTAINED TO
SUPERVISORY POSITIONS WERE NOT WITHIN THE OBLIGATION TO BARGAIN UNDER
E.O. 11491, AS SET FORTH IN SECTION 11(A), AND THEREFORE WERE MATTERS
THAT, IN ACCORDANCE WITH IRS, OGDEN SERVICE CENTER, THE ACTIVITY
RIGHTFULLY REFUSED TO MAINTAIN RATHER THAN BEING OBLIGATED TO CONTINUE
AS ESTABLISHED PRACTICES. THUS, THE ESSENCE OF THE AGENCY'S CONTENTION
THAT THE AWARD IS DEFICIENT AS CONTRARY TO LAW IS THAT THE AWARD
CONSTITUTES AN ENFORCEMENT OF THE PROVISIONS OF ARTICLE XXIII, SECTION 8
OF THE EXPIRED AGREEMENT WITH RESPECT TO A FIRST LINE SUPERVISORY
POSITION DESPITE THOSE PROVISIONS HAVING BEEN PROPERLY TERMINATED WITH
RESPECT TO FIRST LINE SUPERVISORY POSITIONS BEFORE THE GRIEVANCE IN THIS
CASE AROSE.

THE AUTHORITY AGREES. IT WAS WELL ESTABLISHED AT THE TIME THE
PARTIES' AGREEMENT EXPIRED THAT A PROVISION PERTAINING TO THE ASSIGNMENT
OF AN EMPLOYEE TO A HIGHER GRADE POSITION OR THE ROTATION OF SUCH
ASSIGNMENT AMONG EMPLOYEES WAS OUTSIDE AN AGENCY'S OBLIGATION TO BARGAIN
UNDER SECTION 11(A) OF E.O. 11491 TO THE EXTENT IT APPLIED TO
SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. /4/ THUS, THE
AUTHORITY FINDS THAT THE ACTIVITY HAD THE RIGHT, IN ACCORDANCE WITH IRS,
OGDEN SERVICE CENTER, TO REFUSE TO MAINTAIN THE PROVISIONS OF ARTICLE
XXIII, SECTION 8 WITH RESPECT TO FIRST LINE SUPERVISORY POSITIONS
INCLUDING THE FOREMAN POSITION IN THIS CASE.

HOWEVER, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE ACTIVITY
VIOLATED "THE PARTIES' 60 DAY RULE" WHEN IT REFUSED TO ROTATE THE
ASSIGNMENT TO THE FOREMAN POSITION AFTER 60 DAYS. HE RULED THAT THIS
REFUSAL WAS CONTRARY TO THE ACTIVITY'S OWN INSTRUCTIONS THAT
"ESTABLISHED PRACTICES" WERE TO BE MAINTAINED. IT WAS ON THIS BASIS
ALONE THAT THE ARBITRATOR CONCLUDED THAT THE GRIEVANT WAS IMPROPERLY
DENIED THE OPPORTUNITY TO PERFORM IN THE FOREMAN POSITION. THUS, THE
ARBITRATOR HAS ESSENTIALLY ENFORCED IN HIS AWARD ARTICLE XXIII, SECTION
8C OF THE EXPIRED AGREEMENT BECAUSE IT CONSTITUTED WHAT THE ARBITRATOR
TERMED "THE PARTIES' 60 DAY RULE."

BECAUSE OF THE PRINCIPLES SET FORTH IN IRS, OGDEN SERVICE CENTER
RELATING TO THE RIGHTS OF THE PARTIES AFTER THE EXPIRATION OF THEIR
AGREEMENT, THE ARBITRATOR'S AWARD IS DEFICIENT AND CANNOT BE SUSTAINED.
CONSISTENT WITH IRS, OGDEN SERVICE CENTER, ARTICLE XXIII, SECTION 8C OF
THE EXPIRED AGREEMENT CONSTITUTING "THE PARTIES' 60 DAY RULE" WAS
PROPERLY TERMINATED AND THEREAFTER NO LONGER CONSTITUTED "ESTABLISHED
PRACTICES" THAT COULD BE PROPERLY ENFORCED OR THE FAILURE WITH WHICH TO
COMPLY PROPERLY REMEDIED BY THE ARBITRATOR IN HIS AWARD. IN ADDITION,
ALTHOUGH THE ARBITRATOR NOTED THAT WITH RESPECT TO OTHER FIRST LEVEL
SUPERVISORY POSITIONS SUCH "ESTABLISHED PRACTICES" WERE FOLLOWED, THE
AUTHORITY FINDS THAT THIS OBSERVATION FAILS TO CONSTITUTE THE CLEAR AND
UNMISTAKABLE WAIVER NECESSARY TO DENY THE ACTIVITY ITS RIGHT TO REFUSE
TO ROTATE THE ASSIGNMENT OR DETAIL OF EMPLOYEES TO THE FOREMAN POSITION
AFTER THE AGREEMENT EXPIRED.

ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD
IS SET ASIDE. /5/

ISSUED, WASHINGTON, D.C., JUNE 18, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
INTERIM REGULATIONS.

/3/ INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL., A/SLMR
NO. 806 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
BROOKHAVEN SERVICE CENTER, A/SLMR NO. 859, 6 FLRC 310 (FLRC NOS. 77A-40
AND 77A-92 (MAR. 17, 1978), REPORT NO. 147). ALTHOUGH THIS EXCEPTION
WAS FILED UNDER THE STATUTE, THE EXPIRATION OF THE COLLECTIVE BARGAINING
AGREEMENT, THE ACTIVITY'S NOTICE THAT CERTAIN PROVISIONS THEREIN WOULD
NOT BE MAINTAINED, THE ACTIVITY'S ACTIONS WHICH GAVE RISE TO THE
GRIEVANCE, AND THE FILING OF THE GRIEVANCE ALL OCCURRED IN 1978. THUS,
THE LAW APPLICABLE TO THIS CASE IS THAT WHICH EXISTED AT THE TIME OF THE
ACTIVITY'S ACTIONS IN 1978.

/4/ SEE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR
REWORK FACILITY, CHERRY POINT, NORTH CAROLINA, 6 FLRC 253 (FLRC NO.
77A-28 (FEB. 28, 1978), REPORT NO. 145).

/5/ IN VIEW OF THIS DECISION, IT IS NOT NECESSARY THAT THE AUTHORITY
ADDRESS THE AGENCY'S OTHER EXCEPTION TO THE AWARD.