Division of Military and Naval Affairs, State of New York and Association of Civilian Technicians, Inc., New York Council




[ v01 p824 ]
01:0824(94)AR
The decision of the Authority follows:


 1 FLRA No. 94
 
 DIVISION OF MILITARY AND
 NAVAL AFFAIRS, STATE OF NEW YORK
 
 and
 
 ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., NEW YORK COUNCIL
 
                                            FLRC No. 78A-54
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY POSTED A VACANCY ANNOUNCEMENT FOR THE POSITION OF MILITARY
 PAY EXAMINER, GS-05.  THE ANNOUNCEMENT LIMITED APPLICANTS TO TECHNICIAN
 EMPLOYEES IN THE EXCEPTED SERVICE.  /1/ THE GRIEVANTS WERE THREE GS-4
 MILITARY PAY CLERKS WHO WERE IN THE COMPETITIVE SERVICE AND WHO WERE
 THEREBY EXCLUDED FROM CONSIDERATION FOR THE POSITION.  THEY FILED
 GRIEVANCES ALLEGING THAT THE ACTIVITY'S ANNOUNCEMENT LIMITING
 ELIGIBILITY TO EXCEPTED SERVICE EMPLOYEES VIOLATED ARTICLE 14, SECTION 6
 /2/ OF THE PARTIES AGREEMENT.  THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED THE
 NEGOTIATED AGREEMENT SINCE ARTICLE 14, SECTION 6 PROVIDES THAT
 QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE CONTAINED IN
 OFFICIAL JOB DESCRIPTIONS AND THE OFFICIAL JOB DESCRIPTION FOR THE
 POSITION IN QUESTION PROVIDES THAT BOTH EXCEPTED AND COMPETITIVE
 EMPLOYEES ARE QUALIFIED TO APPLY FOR SUCH POSITION.
 
    ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
 
    1.  MANAGEMENT DID VIOLATE ARTICLE 14 OF THE COLLECTIVE AGREEMENT
 BETWEEN THE PARTIES
 
    ("MERIT PROMOTION") WHEN IT DETERMINED ON 25 NOVEMBER 1975 THAT IT
 WOULD ONLY CONSIDER
 
    ELIGIBLE FOR APPOINTMENT TO THE POSITION MILITARY PAY EXAMINER
 (GS-05) APPLICANTS WHO ARE
 
    MEMBERS OF THE NEW YORK ARMY NATIONAL GUARD (EXCEPTED EMPLOYEES).
 
    2.  MANAGEMENT SHALL VACATE ITS WRONGFUL PERMANENT APPOINTMENT TO THE
 POSITION REFERRED TO
 
    IN THE PRECEDING PARAGRAPH, ANNOUNCE ITS VACANCY WITHOUT RESTRICTION
 TO EXCEPTED EMPLOYEES AND
 
    FILL THE VACANCY IN ACCORD WITH ARTICLE 14 OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
                     AGENCY'S APPEAL TO THE AUTHORITY
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  UNDER SECTION 2411.32 OF THE
 COUNCIL'S RULES OF PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR
 REVIEW OF THE ARBITRATOR'S AWARD INSOFAR AS IT RELATED TO THE AGENCY'S
 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
 SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  /3/ THE UNION FILED A BRIEF
 ON THE MERITS.  /4/
 
                                  OPINION
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 7) AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
 RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART
 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE EXCEPT
 THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
 WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    SECTION 2411.37(A) OF THE RULES AS SO AMENDED PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE FEDERAL LABOR RELATIONS COUNCIL ACCEPTED
 THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S
 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
 SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  THEREAFTER, IN ACCORDANCE
 WITH ESTABLISHED PRACTICE, THE COUNCIL REQUESTED FROM THE CIVIL SERVICE
 COMMISSION AN INTERPRETATION OF THE RELEVANT COMMISSION REGULATIONS AS
 THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS CASE.  THE OFFICE OF
 PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
 COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) REPLIED IN
 RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANTS ALLEGE THAT AGENCY MANAGEMENT VIOLATED THE NEGOTIATED
 AGREEMENT BY LIMITING
 
    ELIGIBILITY FOR A VACANT MILITARY PAY EXAMINER POSITION ANNOUNCED
 UNDER THE AGENCY MERIT
 
    PROMOTION PROGRAM TO EXCEPTED EMPLOYEES.  THEY CLAIM THAT ARTICLE 14
 OF THE AGREEMENT REQUIRES
 
    THAT VACANCIES IN THE UNIT BE OPEN TO ALL QUALIFIED UNIT EMPLOYEES,
 WHETHER THEY ARE IN THE
 
    COMPETITIVE OR EXCEPTED SERVICE.  BECAUSE OF A HIRING FREEZE, THE
 VACANCY ANNOUNCEMENT AT
 
    ISSUE WAS WITHDRAWN AND A COMPETITIVE SERVICE TECHNICIAN WAS
 REASSIGNED TO THE VACANT
 
    POSITION.
 
    THE ARBITRATOR FOUND THAT MANAGEMENT HAD VIOLATED THE AGREEMENT BY
 LIMITING CONSIDERATION
 
    UNDER THE VACANCY ANNOUNCEMENT TO EXCEPTED EMPLOYEES.  THE PERTINENT
 PART OF ARTICLE 14
 
    REQUIRES THAT QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE
 CONTAINED IN OFFICIAL JOB
 
    DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.
  THE ARBITRATOR ORDERED
 
    MANAGEMENT TO VACATE ITS WRONGFUL PERMANENT APPOINTMENT (MADE
 SUBSEQUENT TO CANCELLATION OF
 
    THE VACANCY ANNOUNCEMENT BY LATERAL REASSIGNMENT), REANNOUNCE THE
 VACANCY UNDER MERIT
 
    PROMOTION PROCEDURES WITHOUT RESTRICTION TO EXCEPTED EMPLOYEES, AND
 FILL IT IN ACCORDANCE WITH
 
    THE PARTIES' COLL