Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO (Authority decision, March 28, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on exceptions to an arbitral award under 5 U.S.C. § 7122. Orders involving arbitral awards generally are excluded from judicial review by 5 U.S.C. § 7123(a)(1), unless the order involves an unfair labor practice under § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator ordered EPA Region 9 to use negotiated procedures when filling professional positions at GS-12 and above after a grievance about a team leader position. EPA challenged the breadth of the order and its effect on management's selection rights. The Authority held that the remedy could not cover the wider set of professional positions or prevent selection from other lawful sources. It modified the award to require the contractual procedures for covered team leader positions, subject to the statute and personnel rules.

Decision snapshot

• Authority: Management's selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Arbitration remedy modified to cover team leader positions and preserve lawful selection options.
• Key point: An arbitrator's remedy cannot extend beyond the grievance or close lawful candidate sources.

Full text (FLRA public release)

[ v17 p365 ]

17:0365(56)AR

The decision of the Authority follows:

17 FLRA No. 56

ENVIRONMENTAL PROTECTION AGENCY
REGION 9
Activity

and

ENGINEERS AND SCIENTISTS OF
CALIFORNIA, MEBA, AFL-CIO
Union

Case No. O-AR-840

DECISION

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

The parties stipulated the issue before the Arbitrator as follows:

Did the Employer violate Article XV of the Agreement in filling the position of Underground Injection Control Team Leader in the Water Supply Section? If so, what shall be the remedy?

In a corrected award, the Arbitrator ruled in favor of the Union and directed:

1. In filling professional positions of Grades GS-12 and
   above, including Team Leader positions, that are encompassed by the "Unit Designation" which appears in Article I, Section 3 of the Parties' Labor-Management Agreement, the Employer shall implement the procedures of Article XV of the Agreement.

In its exceptions, the Activity contends that the award is contrary to law and Government-wide regulation, and that the Arbitrator exceeded his authority. Specifically, the Activity argues that the award violates management's right under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4, to fill positions from among properly ranked and certified candidates for promotion or from any other appropriate source. The Authority concludes that to the extent the Arbitrator's award requires the Activity to fill positions from among candidates resulting from adherence to the procedures of the parties' agreement and precludes selection from other appropriate sources, the award is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4, and must be modified. /1/ U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA 161 (1983).

The Activity also argues that the Arbitrator exceeded his authority when he rendered an award covering " . . . professional positions of Grades GS-12 and above, including Team Leader positions. . , . ." Noting that the stipulated issue before the Arbitrator referenced only the filling of one Team Leader position, the Activity argues that the Arbitrator was without authority to render an order as to other positions. Under the facts presented, the Authority is persuaded by the Agency's argument. Indeed, the Union only sought a remedy " . . . that would require all Team Leader positions to be filled pursuant to Article XV." Under the facts presented, the Authority concludes that the Arbitrator exceeded his authority when he issued an affirmative order affecting positions and employees beyond the scope of the stipulated grievance. American Federation of Government Employees, AFL-CIO, National Immigration and Service Council and U.S. Immigration and Naturalization Service, 15 FLRA No. 76 (1984). To that limited extent, the award is also deficient and must be modified.

Accordingly, the Authority modifies the award to provide the following remedy in place of that ordered by the Arbitrator:

In filling Team Leader positions that are encompassed by the "Unit Designation" which appears in Article I, Section 3 of the Parties' Labor-Management Agreement, the Employer shall implement the procedures of Article XV of the Agreement. In addition, the filling of Team Leader positions must be in accordance with controlling law and regulation, including section 7106(a) of the Federal Service Labor-Management Relations Statute and Chapter 335 of the Federal Personnel Manual, subchapter 1-4, Requirement 4.

Issued, Washington, D.C., March 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Activity also alleges that the Arbitrator's award violates management's right to decide not to fill the positions involved. However, on its face the award does not require that positions be filled, but rather, directs actions by management "(i)n filling . . . positions. . . ." Moreover as modified by the Authority, the award is consistent with section 7106(a)(2)(C) of the Statute and FPM chapter 335 and therefore does not compel management to fill any position should it choose to leave such position vacant. Accordingly, no basis is provided for finding the award, as modified, deficient on this ground as alleged by the Activity.