Veterans Administration Hospital, Dallas, Texas and American Federation of Government Employees, Local 2347

 

 2 FLRA No. 9
 
 VETERANS ADMINISTRATION HOSPITAL,
 DALLAS, TEXAS
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2437
 
                                            FLRC No. 78A-120
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY FILLED A VACANCY FOR THE POSITION OF PAINTER, WG-9, FROM A
 CIVIL SERVICE CERTIFICATE OF ELIGIBLES WITHOUT POSTING THE VACANCY.  THE
 UNION CONTENDED THAT THE GRIEVANT AND OTHER INTERESTED ACTIVITY
 EMPLOYEES DID NOT KNOW OF THE VACANCY AND CONSEQUENTLY COULD NOT BID ON
 IT AND THAT THE GRIEVANT WAS QUALIFIED AS A PAINTER AND COULD HAVE
 FILLED THE POSITION.  A GRIEVANCE WAS FILED WHICH WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    ACCORDING TO THE ARBITRATOR, THE ISSUE BEFORE HIM WAS:
 
    DID THE HOSPITAL VIOLATE THE AGREEMENT IN FILLING A WG-9 PAINTER
 VACANCY WITHOUT ANNOUNCING
 
    THE VACANCY ON THE STATION?  IF THE ANSWER IS "YES" WHAT WILL BE THE
 REMEDY?
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED ARTICLE XI,
 SECTION 7(A) AND (C)(1) OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 /1/ BY NOT POSTING THE VACANCY SINCE ALL INTERESTED EMPLOYEES HAD THUS
 NOT BEEN GIVEN "FULL AND FAIR CONSIDERATION" FOR ADVANCEMENT.
 
    ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
 
    THE HOSPITAL WILL IMMEDIATELY OFFER TO:
 
    1.  VACATE THE WG-9 POSITION AND ORDER A NEW PERSONNEL ACTION FOR
 WG-9 PAINTER.
 
    2.  POST THE VACANCY FOR 10 CALENDAR DAYS ON 2 OFFICIAL BULLETIN
 BOARDS ON THE STATION AND
 
    ACCEPT APPLICATIONS FOR CONSIDERATION FROM THE EMPLOYEES THAT WERE ON
 THE STATION ON FEBRUARY
 
    26, 1978.
 
    3.  IF THERE ARE NOT 3 OR MORE HIGHLY QUALIFIED CANDIDATES ON THE
 PROMOTION CERTIFICATE,
 
    THE HOSPITAL MAY ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A CIVIL
 SERVICE CERTIFICATE OF
 
    ELIGIBLES AND MANAGEMENT MAY MAKE A SELECTION FROM THE COMBINED LIST
 OF HIGHLY QUALIFIED
 
    CANDIDATES ON THE PROMOTION CERTIFICATE, IF THERE ARE ANY, AND THE
 HIGHLY QUALIFIED CANDIDATES
 
    ON THE CIVIL SERVICE CERTIFICATE OF ELIGIBLES.
 
                     AGENCY'S APPEAL TO THE AUTHORITY
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 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.
 PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT THE
 AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.  /2/ THE UNION FILED A
 BRIEF ON THE MERITS.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES PROVIDED:
 
    (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 SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
 THAT THE AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.  SINCE THE CIVIL
 SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
 CONCERNING THE MATTERS INVOLVED HEREIN, AND SINCE UNDER SECTION 902(B)
 OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST
 BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
 AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE
 SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE
 MATTERS INVOLVED HEREIN) AN INTERPRETATION OF THE RELEVANT CIVIL SERVICE
 COMMISSION REGULATIONS AS THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS
 CASE.  THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
 FOLLOWS:
 
    THIS CASE INVOLVED A GRIEVANCE OVER MANAGEMENT'S FAILURE TO POST A
 VACANCY ANNOUNCEMENT FOR
 
    A WG-9 PAINTER POSITION, IN ACCORD WITH A CONTRACT PROVISION.  THE
 ARBITRATOR FOUND THAT THE
 
    VETERANS ADMINISTRATION HAD VIOLATED THE CONTRACT PROVISION BY NOT
 POSTING , AND HAD FILLED
 
    THE POSITION BY REQUESTING A CERTIFICATE OF ELIGIBLES FROM THE CIVIL
 SERVICE COMMISSION AND
 
    SELECTING AN INDIVIDUAL FROM THE CERTIFICATE FOR THE POSITION.
 
    AT ISSUE HEREIN IS THE THREE-PART ARBITRATION AWARD REQUIRING THE
 VETERANS ADMINISTRATION
 
    TO:  (1) VACATE THE POSITION AND ORDER A NEW PERSONNEL ACTION TO FILL
 THE POSITION;  (2) POST A
 
    VACANCY ANNOUNCEMENT FOR THE POSITION SO VACATED IN ACCORDANCE WITH
 CONTRACTUAL
 
    PROVISIONS;  AND (3) "ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A
 CIVIL SERVICE CERTIFICATE
 
    OF ELIGIBLES" ONLY IF POSTING THE VACANCY YIELDS LESS THAN THREE
 HIGHLY QUALIFIED CANDIDATES,
 
    AND THEN SELECT OR NOT SELECT FROM THE COMBINED LISTS OF HIGHLY
 QUALIFIED CANDIDATES.
 
    FROM THE STANDPOINT OF CIVIL SERVICE COMMISSION RULES AND REGULATIONS
 IN EFFECT AT THE
 
    TIME, TWO ISSUES ARISE IN THIS CASE:  (1) WHETHER AS PART OF AN
 ARBITRATION AWARD IN A
 
    CHALLENGED PROMOTION ACTION AN EMPLOYEE MAY BE REMOVED FROM A
 POSITION IN ADVANCE OF OTHER
 
    CORRECTIVE ACTION TO BE TAKEN;  AND (2) WHETHER AN ARBITRATION AWARD
 MAY LIMIT THE USE OF A
 
    CIVIL SERVICE CERTIFICATE OF ELIGIBLES IN FILLING VACANCIES.  THESE
 ISSUES RELATE TO PART 1
 
    AND PART 3 OF THE ARBITRATOR'S AWARD, RESPECTIVELY.  THE PORTIONS OF
 PARTS 1 AND 2 OF THE
 
    ARBITRATOR'S AWARD WHICH ORDER THAT THE PROMOTION ACTION BE RERUN AND
 THAT MANAGEMENT FULFILL
 
    ITS CONTRACTUAL POSTING OBLIGATION, DO NOT CONFLICT WITH CIVIL
 SERVICE COMMISSION RULES OR
 
    REGULATIONS IN EFFECT AT THE TIME OF THE FILLING OF THE POSITION, OR
 OF THE AWARD.
 
    THE FIRST ISSUE, REGARDING WHETHER