The Association of Civilian Technicians, Inc., New York Council (Union) and Division of Military and Naval Affairs, State of New York (Activity) 



[ v02 p703 ]
02:0703(90)AR
The decision of the Authority follows:


 2 FLRA No. 90
 
 THE ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., NEW
 YORK COUNCIL
 Union
 
 and
 
 DIVISION OF MILITARY AND
 NAVAL AFFAIRS, STATE OF
 NEW YORK
 Activity
 
                                            FLRC No. 78A-149
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR BENJAMIN H. WOLF FILED WITH THE FEDERAL LABOR
 RELATIONS COUNCIL.  /1/
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE AROSE WHEN
 THE ACTIVITY POSTED A VACANCY ANNOUNCEMENT FOR THE POSITION OF
 SUPERVISORY PERSONNEL MANAGEMENT SPECIALIST.  THE ANNOUNCEMENT LIMITED
 APPLICANTS TO EXCEPTED TECHNICIAN EMPLOYEES WITH THE MILITARY GRADE OF
 OFFICER OR WARRANT OFFICER, THEREBY PRECLUDING ALL EXCEPTED EMPLOYEES
 WHO HELD ENLISTED GRADES FROM APPLYING FOR THE POSITION.  THE OFFICIAL
 JOB DESCRIPTION FOR THE POSITION INDICATED THAT IT WAS OPEN TO EXCEPTED
 EMPLOYEES WHO ARE OFFICERS, WARRANT OFFICERS OR ENLISTED EMPLOYEES.  THE
 DISPUTE ULTIMATELY WENT TO ARBITRATION.
 
    THE ARBITRATOR SET FORTH THE ISSUE BEFORE HIM AS FOLLOWS:
 
    DID MANAGEMENT VIOLATE THE MERIT PROMOTION ARTICLE, ARTICLE 14, OF
 SECTION 6 OF THE
 
    NEGOTIATED AGREEMENT BETWEEN THE PARTIES IN POSTING VACANCY
 ANNOUNCEMENT 76-62 ON AUGUST 10,
 
    1976, WHICH LIMITED APPLICANTS TO THE POSITION OF SUPERVISORY
 PERSONNEL MANAGEMENT SPECIALIST,
 
    GS-09, TO SOLELY THOSE EMPLOYEES WHO HELD OFFICER OR WARRANT OFFICER
 MILITARY GRADES IN THE
 
    NATIONAL GUARD, WHERE THE TECHNICIAN JOB DESCRIPTION FROM THE
 NATIONAL GUARD BUREAU FOR THE
 
    AFORESAID POSITION INDICATED ENLISTED PERSONNEL WERE ABLE TO APPLY AS
 WELL.
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR DETERMINED THAT
 SINCE ARTICLE 14, SECTION 6 /2/ OF THE PARTIES' AGREEMENT STATES THAT
 QUALIFICATION STANDARDS WILL BE IN ACCORDANCE WITH THOSE CONTAINED IN
 OFFICIAL JOB DESCRIPTIONS AND THE JOB DESCRIPTION FOR THE POSITION IN
 QUESTION PROVIDES THAT OFFICERS, WARRANT OFFICERS AND ENLISTED MEN ARE
 ELIGIBLE TO FILL SUCH POSITIONS, THE ACTIVITY HAD VIOLATED ARTICLE 14,
 SECTION 6 BY EXCLUDING ENLISTED MEN.
 
    ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
 
    MANAGEMENT VIOLATED THE MERIT PROMOTION ARTICLE, ARTICLE 14, SECTION
 6, OF THE NEGOTIATED
 
    AGREEMENT BETWEEN THE PARTIES IN POSTING VACANCY ANNOUNCEMENT 76-62
 ON AUGUST 10, 1976.
 
    MANAGEMENT IS DIRECTED TO RERUN THE VACANCY ANNOUNCEMENT AND TO OPEN
 COMPETITION TO ALL
 
    EXCEPTED TECHNICIAN EMPLOYEES INCLUDING ENLISTED MEN.
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 BASED UPON THE EXCEPTIONS DISCUSSED BELOW.  /3/ THE UNION FILED AN
 OPPOSITION TO THE PETITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS 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 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.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATION
 AWARD IGNORES PAST PRACTICE.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY
 ASSERTS THAT PRIOR TO THE PRESENT GRIEVANCE MANAGEMENT PUBLISHED VACANCY
 ANNOUNCEMENTS WHICH EXCLUDED CERTAIN MILITARY CLASSIFICATIONS IN THE
 SAME FASHION AS IN THE CASE HEREIN AND IN MANY INSTANCES THE UNION DID
 NOT GRIEVE SUCH ACTIONS.
 
    THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE AUTHORITY WILL
 GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32 OF THE
 AMENDED RULES.  THAT IS, THE EXCEPTION DOES NOT ASSERT A GROUND UPON
 WHICH REVIEW HAS BEEN GRANTED IN THE FEDERAL SECTOR NOR DOES IT APPEAR
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR CASES.  IN THIS REGARD, THE AGENCY
 CITES NO PRIVATE SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION
 TO BE A GROUND FOR REVIEW OF ARBITRATION AWARDS.  ACCORDINGLY, THE
 AGENCY'S FIRST EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
 PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
 APPROPRIATE REGULATION.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY
 ASSERTS THAT "DUE CONSIDERATION WAS NOT GIVEN . . . TECHNICIAN PERSONNEL
 PAMPHLET (TPP) 911 . . . WHICH CONCERNS THE MERIT PROMOTION PROGRAM
 INVOLVED HEREIN." THE AGENCY ALSO ASSERTS THAT THE RESULT OF THE AWARD
 WOULD BE TO PRECLUDE MANAGEMENT FROM CONSIDERING SECTION 3-8 OF TPP 911,
 ENTITLED "SELECTIVE PLACEMENT FACTORS" IN PUBLISHING VACANCY
 ANNOUNCEMENTS.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN AWARD VIOLATES AN APPROPRIATE REGULATION.
 HOWEVER, AND WITHOUT DECIDING WHETHER OR NOT TPP 911 IS AN "APPROPRIATE
 REGULATION" WITHIN THE MEANING OF SECTION 2411.32 OF THE AMENDED RULES
 OF PROCEDURE, THE AUTHORITY IS OF THE OPINION THAT IN THIS CASE THE
 AGENCY'S PETITION DOES NOT CONTAIN A DESCRIPTION OF FACTS AND
 CIRCUMSTANCES TO SUPPORTS ITS SECOND EXCEPTION.
 
    THE BASIC THRUST OF THE AGENCY'S EXCEPTION IS THAT "DUE
 CONSIDERATION" WAS NOT GIVEN TO TPP 911.  HOWEVER, IT IS NOTED THAT THE
 ARBITRATOR SPECIFICALLY REFERRED TO TPP 911 IN THE DISCUSSION
 ACCOMPANYING HIS AWARD AND PARTICULARLY POINTED OUT THE LANGUAGE THEREIN
 THAT SELECTIVE PLACEMENT FACTORS MAY BE USED AS A SECONDARY SCREENING
 FACTOR.  MOREOVER, THE AGENCY IN ITS EXCEPTION DOES NOT DEMONSTRATE IN
 WHAT MANNER THE ARBITRATOR'S AWARD, IN WHICH THE ARBITRATOR FOUND THAT
 IN POSTING THE VACANCY ANNOUNCEMENT IN THIS PARTICULAR CASE THE AGENCY
 VIOLATED THE PARTIES' NEGOTIATED AGREEMENT, VIOLATES TPP 911.  NOR DOES
 THE AGENCY DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD WOULD
 PRECLUDE IT FROM CONSIDERING THE SELECTIVE PLACEMENT FACTORS OF SECTION
 3-8 TPP IN THE FUTURE.  THEREFORE, THE AGENCY'S SECOND EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
 OF THE AMENDED RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE AGENCY ASSERTS THAT THE AWARD VIOLATES
 THE PAROL EVIDENCE RULE.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY
 CONTENDS THAT THE PAROL EVIDENCE RULE WAS VIOLATED BY THE ARBITRATOR IN
 CONJUNCTION WITH THE LACK OF CONSIDERATION HE GAVE TO TPP 911 WHICH
 CLEARLY SETS FORTH SELECTIVE PLACEMENT FACTORS.
 
    THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE AUTHORITY WILL
 GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32.  THAT IS,
 THE EXCEPTION DOES NOT STATE A GROUND UPON WHICH REVIEW HAS BEEN GRANTED
 IN THE FEDERAL SECTOR NOR DOES IT APPEAR SIMILAR TO THOSE UPON WHICH
 CHALLENGES TO LABOR ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
 PRIVATE SECTOR CASES.  IN THIS REGARD, THE AGENCY CITES NO PRIVATE
 SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION TO BE A GROUND FOR
 REVIEW OF ARBITRATION AWARDS.  ACCORDINGLY THE AGENCY'S THIRD EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
 OF THE AMENDED RULES OF PROCEDURE.
 
    IN ITS FOURTH EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
 APPLICABLE LAW.  THE AGENCY STATES THAT THE NATIONAL GUARD TECHNICIAN
 ACT OF 1968 GIVES ADJUTANTS GENERAL THE AUTHORITY TO EMPLOY AND
 ADMINISTER TECHNICIANS AND THIS AUTHORITY, THE AGENCY ASSERTS, INCLUDES
 ADVERTISING POSITION VACANCIES IN THE MANNER DEEMED MOST APPROPRIATE.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN AWARD VIOLATES APPLICABLE LAW.  HOWEVER, THE
 AGENCY'S EXCEPTION IN THIS CASE IS NOT SUPPORTED BY THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION.  THUS, THE AGENCY DOES NOT
 DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD DIRECTING THE AGENCY
 TO RERUN THE VACANCY ANNOUNCEMENT IN ACCORDANCE WITH THE PROVISIONS OF
 THE PARTIES' NEGOTIATED AGREEMENT VIOLATES THE NATIONAL GUARD TECHNICIAN
 ACT OF 1968.  NOR DOES THE AGENCY PROVIDE ANY SUPPORT FOR ITS GENERAL
 ASSERTION THAT THE ACT GIVES AN ADJUTANT GENERAL "THE RIGHT TO ADVERTISE
 POSITION VACANCIES IN THE MANNER DEEMED MOST APPROPRIATE." THEREFORE,
 THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE AGENCY'S PETITION
 UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    IN ITS FIFTH EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
 EXECUTIVE ORDER 11491.  THE AGENCY ASSERTS THAT THE AWARD VIOLATES
 SECTION 12(A) OF THE ORDER "WHICH, BY INCORPORATION OF APPROPRIATE
 REGULATION, GIVES THE AGENCY THE RIGHT AND OBLIGATION TO DECIDE THE BEST
 COURSE TO PURSUE IN ANNOUNCING A POSITION VACANCY" AND SECTION 12(B)(5)
 OF THE ORDER WHICH GIVES THE AGENCY THE RIGHT "TO DETERMINE THE METHODS,
 MEANS AND PERSONNEL BY WHICH (GOVERNMENT) OPERATIONS ARE TO BE
 CONDUCTED.  /4/
 
    ALTHOUGH THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION FOR REVIEW, THAT THE AWARD
 VIOLATES THE ORDER, THE AGENCY'S PETITION FAILS TO PRESENT THE NECESSARY
 FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  THUS, AS TO THE
 AGENCY'S ALLEGATION THAT THE AWARD VIOLATES SECTION 12(A) OF THE ORDER,
 IT IS WELL ESTABLISHED UNDER THE ORDER THAT AN EXCEPTION TO AN AWARD
 ASSERTING THAT THE AWARD VIOLATES SECTION 12(A) OF THE ORDER DOES NOT
 STATE A GROUND UPON WHICH REVIEW OF AN ARBITRATION AWARD WILL BE
 GRANTED.  AS EXPLAINED IN ROCKY MOUNTAIN ARSENAL AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL NO. 2197 (SELIGSON, ARBITRATOR), 5 FLRC
 859 (FLRC NO.  77A-53 (AUGUST 31, 1977), REPORT NO. 137):
 
    (S)ECTION 12(A) OF THE ORDER PROVIDES ONLY THAT THE ADMINISTRATION OF
 A NEGOTIATED
 
    AGREEMENT IS SUBJECT TO THE LEGAL AND REGULATORY REQUIREMENTS CITED
 IN THAT SECTION;  IT DOES
 
    NOT EXTEND TO THE PARTIES TO SUCH AN AGREEMENT ANY RIGHTS OR
 OBLIGATIONS INDEPENDENT OF THOSE
 
    REQUIREMENTS AND THEREFORE DOES NOT, IN AND OF ITSELF, PROVIDE A
 GROUND UPON WHICH THE COUNCIL
 
    WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.  (FOOTNOTE
 OMITTED.) ID. AT 865 OF
 
    THE COUNCIL'S DECISION.
 
    THEREFORE, THAT PART OF THE AGENCY'S FIFTH EXCEPTION ALLEGING THAT
 THE AWARD VIOLATES SECTION 12(A) OF THE ORDER PROVIDES NO BASIS FOR
 ACCEPTANCE OF ITS PETITION UNDER THE AMENDED RULES OF PROCEDURE.
 
    AS TO THAT PART OF THE AGENCY'S EXCEPTION WHICH ALLEGES THAT THE
 AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER, AGAIN THE AGENCY HAS NOT
 PRESENTED FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  THE AGENCY
 HAS NOT SHOWN IN WHAT WAY THE ARBITRATOR'S AWARD, IN WHICH HE DIRECTED
 THE ACTIVITY TO RERUN THE VACANCY ANNOUNCEMENT IN ACCORDANCE WITH THE
 PARTIES' AGREEMENT, WOULD IN ANY MANNER INFRINGE UPON MANAGEMENT'S
 RIGHT, AFTER RERUNNING THE ANNOUNCEMENT, TO DETERMINE THE METHODS, MEANS
 AND PERSONNEL BY WHICH THE AGENCY'S OPERATIONS ARE TO BE CONDUCTED.
 THUS, THE AGENCY'S FIFTH EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF
 ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
 
    THE AGENCY ALSO CONTENDS THAT THE AWARD SHOULD BE DECLARED VOID
 BECAUSE THE GRIEVANCE WAS IMPROPERLY DETERMINED TO BE ARBITRABLE AND
 THEREFORE THE ARBITRATOR DID NOT HAVE JURISDICTION TO DECIDE THE
 DISPUTE.  THE RECORD INDICATES THAT THE QUESTION OF ARBITRABILITY IN
 THIS CASE WAS INITIALLY SUBMITTED TO A REGIONAL ADMINISTRATOR OF THE
 DEPARTMENT OF LABOR FOR DECISION AND THAT HE FOUND THE MATTER
 ARBITRA