National Aeronautics and Space Administration (Agency) and American Federation of Government Employees, Local 2284 (Union)
[ v03 p239 ]
03:0239(35)AR
The decision of the Authority follows:
3 FLRA No. 35
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2284
Union
Case No. 0-AR-10
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION OF REVIEW OF THE
AWARD OF ARBITRATOR JOHN BAILEY FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).
ACCORDING TO THE ARBITRATOR, THE GRIEVANT, A QUALITY ENGINEER, GS-12,
AT THE LYNDON B. JOHNSON SPACE CENTER, HOUSTON, TEXAS, HAD BEEN DEMOTED
FROM A GS-13 POSITION DUE TO A REDUCTION IN FORCE AND THUS BECAME A
REPROMOTION ELIGIBLE ENTITLED TO A SPECIAL CONSIDERATION FOR
REPROMOTION. TWO GRIEVANCES WERE FILED ALLEGING THAT: (1) THE GRIEVANT
WAS NOT GIVEN SPECIAL CONSIDERATION WHEN SEVERAL VACANT GS-13 POSITIONS
WERE FILLED, AND (2) THE GRIEVANT WAS NOT GIVEN SPECIAL CONSIDERATION
FOR A POSITION THAT WAS "CREATED . . . FOR THE EXPRESS PURPOSE OF
PLACING A SPECIFIC INDIVIDUAL . . . IN THE POSITION . . ." THE
GRIEVANCES WERE ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR STATED THE ISSUES BEFORE HIM TO BE:
(1) WHETHER THE GRIEVANT . . . WAS DENIED THE "SPECIAL CONSIDERATION"
FOR REPROMOTION TO
WHICH HE WAS ENTITLED AS A "RE-PROMOTION ELIGIBLE" IN JULY AND
SEPTEMBER 1977.
(2) IF SO, WHETHER SUCH DENIAL OF "SPECIAL CONSIDERATION" WAS
MOTIVATED IN PART BY THE
GRIEVANT'S MEMBERSHIP IN AND ACTIVITIES IN BEHALF OF THE UNION.
(3) IF SO, WHETHER BUT FOR ANY SUCH ANTI-UNION DISCRIMINATION AGAINST
HIM BECAUSE OF HIS
MEMBERSHIP AND ACTIVITIES IN BEHALF OF THE UNION, THE GRIEVANT WOULD
HAVE BEEN PROMOTED TO
FILL A VACANCY ON EITHER OF THE FOLLOWING DATES:
(A) JULY 10, 1977, OR
(B) SEPTEMBER 1, 1977.
THE ARBITRATOR CITED THE FOLLOWING PROVISIONS OF THE PARTIES'
AGREEMENT AS PERTINENT TO THE CASE HEREIN:
ARTICLE 3
RIGHTS OF EMPLOYEES
SECTION 1. EMPLOYEES HAVE THE RIGHT, FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, TO
JOIN AND ASSIST THE UNION OR TO REFRAIN FROM SUCH ACTIVITY. THE
FREEDOM OF SUCH EMPLOYEES
SHALL BE RECOGNIZED AS EXTENDING TO PARTICIPATION IN THE MANAGEMENT
OF THE UNION AND ACTING
FOR THE UNION IN THE CAPACITY OF A REPRESENTATIVE, INCLUDING
PRESENTATION OF ITS VIEWS TO
OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR OTHER APPROPRIATE
AUTHORITY. THIS SECTION
DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF THE UNION, OR
ACTING AS A UNION
REPRESENTATIVE, WHEN THE PARTICIPATION OR ACTIVITY WOULD RESULT IN A
CONFLICT OR APPARENT
CONFLICT OF DUTIES OF THE EMPLOYEE. THE EMPLOYER AGREES TO TAKE
ACTION BY ONCE-A-YEAR
CENTER-WIDE ANNOUNCEMENT TO ASSURE THAT EMPLOYEES ARE APPRISED OF
THEIR RIGHTS UNDER THIS
SECTION. IT IS FURTHER AGREED THAT NO INTERFERENCE, RESTRAINT,
COERCION, OR DISCRIMINATION
WILL BE PRACTICED BY THE EMPLOYER OR THE UNION TO ENCOURAGE OR
DISCOURAGE MEMBERSHIP IN THE
LABOR ORGANIZATION.
. . . .
ARTICLE 29
REDUCTION IN FORCE
. . . .
SECTION 7. ANY EMPLOYEE DEMOTED IN NASA IN A REDUCTION IN FORCE WILL
BE GIVEN SPECIAL
CONSIDERATION FOR REPROMOTION TO ANY VACANCY FOR WHICH HE IS
QUALIFIED AND IN THE AREA OF
CONSIDERATION AT HIS FORMER GRADE (OR ANY INTERVENING GRADE) BEFORE
ANY ATTEMPT IS MADE TO
FILL THE POSITION BY OTHER MEANS.
IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR NOTED THAT,
UNDER THE PROVISIONS OF THE PARTIES' AGREEMENT, A REPROMOTION ELIGIBLE
MERELY HAS TO BE "QUALIFIED" IN ORDER TO RECEIVE SPECIAL CONSIDERATION
FOR REPROMOTION BUT, IN ACCORDANCE WITH THE FEDERAL PERSONNEL MANUAL,
CHAPTER 335, SECTION 4-3(C)(2), HE MUST BE "WELL QUALIFIED" TO BE
PROMOTED. FEDERAL PERSONNEL MANUAL CHAPTER 335, SECTION 4-3(C)(2)
PROVIDED AT THE TIME INVOLVED HEREIN:
C. REPROMOTION TO GRADES OR POSITIONS FROM WHICH DEMOTED WITHOUT
PERSONAL CAUSE.
. . . .
(2) SPECIAL CONSIDERATION FOR REPROMOTION. AN EMPLOYEE DEMOTED
WITHOUT PERSONAL CAUSE IS
ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION IN THE AGENCY IN
WHICH HE WAS
DEMOTED. ALTHOUGH HE IS NOT GUARANTEED REPROMOTION, ORDINARILY HE
SHOULD BE REPROMOTED WHEN A
VACANCY OCCURS IN A POSITION AT HIS FORMER GRADE (OR ANY INTERVENING
GRADE) FOR WHICH HE HAS
DEMONSTRATED THAT HE IS WELL-QUALIFIED, UNLESS THERE ARE PERSUASIVE
REASONS FOR NOT DOING
SO. CONSIDERATION OF AN EMPLOYEE ENTITLED TO SPECIAL CONSIDERATION
FOR REPROMOTION MUST
PRECEDE EFFORTS TO FILL THE VACANCY BY OTHER MEANS, INCLUDING
COMPETITIVE PROMOTION
PROCEDURES, EXCEPT WHEN ANOTHER EMPLOYEE HAS A STATUTORY OR
REGULATORY RIGHT TO BE PLACED IN
OR CONSIDERED FOR THE POSITION. IF A SELECTING OFFICIAL CONSIDERS AN
EMPLOYEE ENTITLED TO
SPECIAL CONSIDERATION FOR REPROMOTION UNDER THIS PARAGRAPH BUT
DECIDES NOT TO SELECT HIM FOR
PROMOTION AND THEN THE EMPLOYEE IS CERTIFIED TO THE OFFICIAL AS ONE
OF THE BEST-QUALIFIED
UNDER COMPETITIVE PROMOTION PROCEDURES FOR THE SAME POSITION, THE
OFFICIAL MUST STATE HIS
REASONS FOR THE RECORD IF HE DOES NOT THEN SELECT THE EMPLOYEE.
THE ARBITRATOR NOTED FURTHER THAT ALTHOUGH THE FPM GUARANTEES THAT A
REPROMOTION ELIGIBLE WILL RECEIVE SPECIAL CONSIDERATION FOR REPROMOTION,
IT DOES NOT GUARANTEE REPROMOTION. THE ARBITRATOR THEN CONCLUDED THAT,
BASED UPON THE EVIDENCE BEFORE HIM, THE GRIEVANT WAS GIVEN SPECIAL
CONSIDERATION FOR REPROMOTION FOR THE POSITIONS IN QUESTION BUT WAS
DENIED REPROMOTION BECAUSE HE WAS NOT WELL-QUALIFIED. THE ARBITRATOR
ALSO FOUND THAT THE GRIEVANT WAS NOT DENIED REPROMOTION BECAUSE OF HIS
UNION ACTIVITIES. THAT ARBITRATOR THEREFORE DENIED THE GRIEVANCES.
THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411
(1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
7122(A) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
44741), REMAIN OPERATIVE WITH RESPECT TO THIS CASE. THE UNION SEEKS
AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTIONS
DISCUSSED BELOW. THE AGENCY FILED AN OPPOSITION.
PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
BECAUSE IT IS CONTRARY TO LAW OR REGULATION, OR ON OTHER GROUNDS SIMILAR
TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS CASES.
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE AWARD IS CONTRARY
TO REGULATION. IN SUPPORT OF THIS EXCEPTION, THE UNION STATES THAT IN
ORDER TO PERMIT THE AWARD TO STAND, THE REGULATIONS PERTAINING TO
SPECIAL CONSIDERATION FOR PROMOTION WOULD HAVE TO BE INTERPRETED AS
ORDINARILY BARRING ALL EMPLOYEES DEMOTED WITHOUT PERSONAL CAUSE, SAVE
THOSE THAT ARE WELL QUALIFIED. THE UNION STATES THAT SUCH AN
INTERPRETATION WOULD BE UNJUSTIFIED "SERIOUS AND FAR-REACHING DEPARTURE
FROM ESTABLISHED PRACTICE."
THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD WHEN IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT THE AWARD VIOLATES REGULATION. HOWEVER, IN THIS
CASE THE UNION HAS NOT PRESENTED SUFFICIENT FACTS AND CIRCUMSTANCES TO
SUPPORT ITS EXCEPTION.
THE UNION DOES NOT DEMONSTRATE IN ITS PETITION IN WHAT MANNER THE
ARBITRATOR'S AWARD IS CONTRARY TO THE CITED REGULATION. THE UNION HAS
NOT SHOWN THAT THE ARBITRATOR'S REFERENCE TO THE WORDS "WELL-QUALIFIED"
IN FPM CHAPTER 335, SECTION 4-3(C)(2), OR HIS AWARD DENYING THE
GRIEVANCES, IN ANY MANNER VIOLATES THE FEDERAL PERSONNEL MANUAL. IT IS
NOTED THAT THE ARBITRATOR SPECIFICALLY FOUND, BASED ON THE EVIDENCE
BEFORE HIM, THAT THE GRIEVANT WAS GIVEN SPECIAL CONSIDERATION FOR
REPROMOTION. THE ARBITRATOR ALSO SPECIFICALLY REFERRED TO THE LANGUAGE
OF FPM CHAPTER 335, SECTION 4-3(C)(2), AND, APPLYING IT TO THE FACTS OF
THIS CASE, NOTED THAT THE REGULATION ONLY GUARANTEES THAT A REPROMOTION
ELIGIBLE WILL RECEIVE "SPECIAL CONSIDERATION" FOR REPROMOTION, AND THAT
IT DOES NOT GUARANTEE ACTUAL REPROMOTION. THEREFORE, THE UNION'S FIRST
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION
2411.32 OF THE AMENDED RULES.
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD IGNORES
THE CONTRACT. IN SUPPORT OF THIS EXCEPTION THE UNION STATES THAT THE
PARTIES' AGREEMENT REQUIRES THAT REPROMOTION ELIGIBLES BE GIVEN SPECIAL
CONSIDERATION BEFORE ANY OTHER METHOD IS USED TO FILL A VACANCY AND THAT
MANAGEMENT CREATED GS-13 POSITIONS FOR FOUR DOWNGRADED EMPLOYEES IN
VIOLATION OF THE GRIEVANT'S RIGHTS UNDER THE AGREEMENT.
IN ITS SECOND EXCEPTION THE UNION IS MERELY ARGUING, AS IT DID BEFORE
THE ARBITRATOR, THAT THE AGENCY VIOLATED THE AGREEMENT. THUS THE UNION
IS ATTEMPTING TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE
AUTHORITY. AS IN THE PRIVATE SECTOR, THIS DOES NOT CONSTITUTE A BASIS
FOR REVIEWING AN ARBITRATION AWARD IN THE FEDERAL SECTOR. SEE FEDERAL
AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL AVIATION
ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST REGION,
CASE NO. O-AR-20, 2 FLRA NO. 85 (FEBRUARY 21, 1980). THEREFORE, THIS
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER
SECTION 2411.32 OF THE AMENDED RULES.
ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE AMENDED RULES OF PROCEDURE.
ISSUED, WASHINGTON, D.C., MAY 21, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY