American Federation of Government Employees, Local 987, AFL-CIO (Union) and Warner Robins Air Logistics Center, Robins Air Force Base, Georgia (Activity) 

 



[ v03 p550 ]
03:0550(89)AR
The decision of the Authority follows:


 3 FLRA No. 89
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 987
 Union
 
 and
 
 WARNER ROBINS AIR LOGISTICS CENTER,
 ROBINS AIR FORCE BASE, GEORGIA
 Activity
 
                                            Case No. 0-AR-22
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR HAROLD P. KNIGHT FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    THE FACTS WHICH GAVE RISE TO THIS DISPUTE ARE NOT SPECIFICALLY SET
 FORTH IN THE ARBITRATOR'S AWARD.  HOWEVER, FROM THE ARBITRATOR'S AWARD
 AND THE SUBMISSIONS TO THE AUTHORITY BY THE PARTIES, IT APPEARS THAT
 THIS DISPUTE INVOLVED THE FILLING BY THE ACTIVITY OF GS-7 VACANCIES IN
 THE PROCUREMENT FIELD.  IN FILLING GS-1102-5 OR 7 POSITION, THE ACTIVITY
 HAD BEEN DETERMINING THE QUALIFICATIONS OF CANDIDATES BY EITHER THE
 GS-1102-5/7 QUALIFICATION STANDARD, WHICH REQUIRES SPECIALIZED
 EXPERIENCE, OR THE GS-000-5/7 QUALIFICATION STANDARD, WHICH REQUIRES
 GENERAL EXPERIENCE AND/OR EDUCATION SUPPLEMENTED BY THE PROFESSIONAL AND
 ADMINISTRATIVE CAREER EXAM (PACE).  THE UNION FILED A GRIEVANCE WHICH
 ALLEGED THAT A COMPETITIVE PROMOTION CERTIFICATE FOR GS-7 VACANCIES IN
 PROCUREMENT INCLUDED INDIVIDUALS WHO DID NOT MEET THE QUALIFICATION
 STANDARD FOR THE PROCUREMENT SERIES.  THE UNION ARGUED THAT THE ACTIVITY
 WAS REQUIRED TO USE THE SPECIALIZED EXPERIENCE REQUIREMENTS OF THE
 GS-1102-7 QUALIFICATION STANDARD IN DETERMINING THE QUALIFICATION OF
 CANDIDATES.
 
    AS NOTED BY THE ARBITRATOR, THE PARTIES, DURING THE PROCESSING OF THE
 GRIEVANCE, MUTUALLY AGREED TO SUBMIT THIS DISPUTE TO THE CIVIL SERVICE
 COMMISSION.  BOTH OF THE PARTIES BELIEVED THAT THIS DISPUTE COULD BE
 RESOLVED BY AN INTERPRETATION OF CSC HANDBOOK X-118, WHICH DEALS WITH
 QUALIFICATION STANDARDS.  THIS REQUEST RESULTED IN CORRESPONDENCE, NOTED
 BY THE ARBITRATOR, BETWEEN THE ACTIVITY AND THE CIVIL SERVICE COMMISSION
 AND LATER BETWEEN THE AGENCY AND THE CIVIL SERVICE COMMISSION.  THE
 ACTIVITY RECEIVED THREE LETTERS FROM THE ATLANTA REGIONAL OFFICE OF THE
 CIVIL SERVICE COMMISSION, DATED OCTOBER 21, 1977, DECEMBER 5, 1977, AND
 FEBRUARY 24, 1978.  THEREAFTER, THE DEPARTMENT OF THE AIR FORCE DIRECTLY
 CORRESPONDED WITH THE CENTRAL OFFICE OF THE CIVIL SERVICE COMMISSION.
 THIS INQUIRY RESULTED IN A RESPONSE FROM THE COMMISSION'S CENTRAL OFFICE
 DATED MAY 23, 1978.
 
    APPARENTLY, THE CORRESPONDENCE DID NOT RESOLVE THIS DISPUTE BECAUSE
 THE MATTER WAS SUBMITTED TO ARBITRATION.  THE ARBITRATOR STATED THE
 ISSUE TO BE RESOLVED AS FOLLOWS:
 
    WAS THE METHOD, USED BY MANAGEMENT TO DETERMINE THE INDIVIDUAL
 EMPLOYEE QUALIFICATIONS, IN
 
    COMPLIANCE WITH THE CIVIL SERVICE COMMISSION STANDARD FOR GS-1102
 SERIES CLASSIFICATION?
 
    IN HIS AWARD THE ARBITRATOR REFERRED SPECIFICALLY TO CERTAIN EXHIBITS
 WHICH HAD BEEN INTRODUCED AT THE ARBITRATION HEARING, STATING THAT HE
 WAS NOTING THEM "FOR THEIR APPLICATION IN THIS HEARING." ONE OF THESE
 EXHIBITS WAS THE MAY 23, 1978, LETTER FROM THE CENTRAL OFFICE OF THE
 CIVIL SERVICE COMMISSION, WHICH THE ARBITRATOR QUOTED FROM AS FOLLOWS:
 
    IN ALL CASES, HOWEVER, SPECIALIZED OR JOB-RELATED EXPERIENCE SHOULD
 BE GIVEN DUE WEIGHT IN
 
    EVALUATING THE POTENTIAL OF EMPLOYEES TO FILL A VACANCY.
 
    HE ALSO NOTED THAT THE LETTER STATED THAT WRITTEN TESTS SUCH AS PACE
 SHOULD BE USED AS ONE OF SEVERAL EVALUATION FACTORS, INCLUDING
 JOB-RELATED EXPERIENCE WHEN SUCH EXPERIENCE EXISTS.  REFERRING TO THE
 FEBRUARY 24, 1978, LETTER FROM THE ATLANTA REGIONAL OFFICE OF THE CIVIL
 SERVICE COMMISSION, THE ARBITRATOR CONCLUDED THAT THE ACTIVITY'S METHOD
 OF DETERMINING QUALIFICATIONS WAS UNACCEPTABLE TO THE COMMISSION.  THE
 ARBITRATOR NOTED THAT THIS LETTER WAS THE LAST ADVICE CONCERNING THE
 SELECTION OF PERSONS FOR OCCUPATIONS AND THAT IN THIS LETTER THE
 PROCEDURE USED BY THE ACTIVITY WAS SPECIFICALLY DISAPPROVED.  THE
 ARBITRATOR MADE THE FOLLOWING AWARD:
 
    THE METHOD USED WAS NOT ACCEPTABLE TO THE CIVIL SERVICE COMMISSION
 AND THEREFORE THE
 
    GRIEVANCE IS GRANTED AND NEW PROMOTION CERTIFICATES ARE TO BE ISSUED
 UNDER PROPER PROCEDURE OF
 
    SELECTION.
 
    THE AGENCY 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 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE.
 THE AGENCY REQUESTS THAT THE AUTHORITY ACCEPT ITS POSITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD ON THE BASIS OF ITS ONE EXCEPTION WHICH IS
 DISCUSSED BELOW.  THE UNION FILED AN OPPOSITION.
 
    IN ITS EXCEPTION TO THE ARBITRATOR'S AWARD, THE AGENCY CONTENDS THAT
 THE AWARD IS BASED ON A NONFACT.  IN SUPPORT OF ITS EXCEPTIONS, THE
 AGENCY PRINCIPALLY ARGUES THAT THE FEBRUARY 24, 1978, LETTER FROM THE
 ATLANTA REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION, WHICH THE
 ARBITRATOR TERMED THE "LAST SUCH ADVICE CONCERNING THE SELECTION OF
 PERSONS FOR OCCUPATIONS," WAS NOT THE LAST SUCH ADVICE.  TO THE
 CONTRARY, THE AGENCY CLAIMS THAT THE LAST SUCH ADVICE WAS CONTAINED IN
 THE MAY 23, 1978, LETTER FROM THE CIVIL SERVICE COMMISSION'S CENTRAL
 OFFICE.  MOREOVER, THE AGENCY ASSERTS THAT THE MAY 23 LETTER REVERSED
 THE EARLIER REGIONAL OFFICE RESPONSES AND SPECIFICALLY APPROVED THE
 ACTIVITY'S METHOD OF DETERMINING QUALIFICATION.  THUS, THE AGENCY
 MAINTAINS THAT THE ARBITRATOR'S AWARD IS BASED ON A NONFACT.
 
    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 ON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT AN EXCEPTION PRESENTS A
 GROUND FOR REVIEW "SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT RELATIONS." FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES WILL FIND AN ARBITRATION AWARD
 DEFICIENT ON THE GROUND THAT IT IS BASED ON A NONFACT.  /1/ MORE
 PRECISELY, FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS
 WILL FIND AN ARBITRATOR'S AWARD DEFICIENT ON THE GROUND THAT THE CENTRAL
 FACT UNDERLYING AN ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS AND IN
 EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD
 HAVE BEEN REACHED.  /2/ ACCORDINGLY, THE AUTHORITY WILL GRANT A PETITION
 FOR REVIEW OF AN ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION FOR REVIEW, THAT THE
 EXCEPTION PRESENTS THE GROUND THAT THE CENTRAL FACT UNDERLYING AN
 ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT IS A GROSS
 MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, CASE NO. O-AR-7, 2 FLRA NO. 60 (JAN. 17, 1980).
 
    IN THIS CASE, HOWEVER, ALTHOUGH THE AGENCY'S EXCEPTION STATES A
 GROUND ON WHICH REVIEW IS GRANTED, THE AGENCY'S EXCEPTION IS NOT
 SUPPORTED BY THE FACTS AND CIRCUMSTANCES DESCRIBED IN ITS PETITION FOR
 REVIEW.  IN CONTENDING THE AWARD IS BASED ON A NONFACT, THE AGENCY
 ESSENTIALLY ARGUES THAT THE ARBITRATOR FAILED TO CONSIDER THE MAY 23
 LETTER, OTHERWISE HE WOULD NOT HAVE TERMED THE FEBRUARY 24 LETTER THE
 LAST ADVICE CONCERNING THE SELECTION OF PERSONS FOR OCCUPATIONS.  THE
 AGENCY FURTHER ARGUES THAT THE MAY 23 LETTER APPROVED THE ACTIVITY'S
 METHOD OF DETERMINING QUALIFICATIONS.  IN THIS RESPECT, CONTRARY TO THE
 AGENCY'S ASSERTIONS, THE ARBITRATOR'S QUOTATION FROM AND DISCUSSION OF
 THE MAY 23 LETTER IN HIS AWARD EVIDENCES HIS EXPRESS REVIEW AND
 CONSIDERATION OF THAT LETTER IN REACHING HIS AWARD IN THIS CASE.
 MOREOVER, THE AGENCY FAILS TO DEMONSTRATE THAT THE ARBITRATOR NOT ONLY
 ERRED IN HIS VIEW OF THE FACTS, BUT THAT THE SOLE ARTICULATED BASIS FOR
 HIS AWARD WAS CONCEDEDLY AND INDISPUTABLY IN ERROR.  THE AGENCY FURTHER
 FAILS TO DEMONSTRATE THAT THE EVIDENCE IN THIS CASE DISCLOSES A GROSS
 MISTAKE OF FACT BUT FOR WHICH, IN ACCORDANCE WITH THE EXPRESSED
 RATIONALE OF THE ARBITRATOR, A DIFFERENT RESULT WOULD HAVE BEEN REACHED.
  /3/ INSTEAD, BY ARGUING, CONTRARY TO WHAT THE ARBITRATOR FOUND, THAT
 THE MAY 23 LETTER APPROVED THE ACTIVITY'S METHOD, THE AGENCY'S
 ASSERTIONS CONSTITUTE NOTHING MORE THAN DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS AS TO THE FACTS AND WITH THE SPECIFIC REASONING
 AND CONCLUSIONS EMPLOYED BY THE ARBITRATOR IN REACHING HIS AWARD.  AS IS
 WELL ESTABLISHED IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES AND
 AS HAS BEEN RECOGNIZED BY THE FEDERAL LABOR RELATIONS AUTHORITY WITH
 RESPECT TO REVIEW OF ARBITRATION AWARDS IN FEDERAL SECTOR CASES, IT IS
 THE AWARD RATHER THAN THE SPECIFIC REASONING AND CONCLUSIONS EMPLOYED BY
 THE ARBITRATOR THAT IS SUBJECT TO REVIEW AND THE ARBITRATOR'S FINDINGS
 OF FACT ARE NOT TO BE QUESTIONED ON APPEAL.  /4/ THEREFORE, THE AGENCY'S
 PETITION FOR REVIEW FAILS TO PRESENT FACTS AND CIRCUMSTANCES TO
 DEMONSTRATE THAT THE CENTRAL FACT UNDERLYING THE ARBITRATOR'S AWARD IS
 CONCEDEDLY ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR
 WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED, A SHOWING NECESSARY TO
 SUPPORT ITS EXCEPTION THAT THE ARBITRATOR'S AWARD WAS BASED ON A
 NONFACT.
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE AMENDED RULES FOR ACCEPTANCE BY THE AUTHORITY OF A
 PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.  THE AGENCY'S REQUEST FOR
 A STAY OF THE AWARD IS ALSO DENIED.
 
    ISSUED, WASHINGTON, D.C., JUNE 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ELECTRONICS CORPORATION OF AMERICA V. INTERNATIONAL UNION OF
 ELECTRICAL RADIO AND MACHINE WORKERS, AFL-CIO LOCAL 272, 492 F.2D 1255
 (1ST CIR. 1974).
 
    /2/ ID. AT 1257.
 
    /3/ SEE ID. AT 1257 & N.3.
 
    /4/ E.G., MEAT CUTTERS, LOCAL 540 V. NEUHOFF BROS. PACKERS, INC., 481
 F.2D 817 (5TH CIR. 1973) (ARBITRATOR'S FINDINGS AS TO THE FACTS);
 SAFEWAY STORES, INC. V.  AMERICAN BAKERY AND CONFECTIONERY WORKERS,
 LOCAL 111, 390 F.2D 79 (5TH CIR. 1968) (ARBITRATOR'S REASONING);  UNITED
 STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, CASE NO.
 O-AR-7, 2 FLRA NO. 60 (JAN. 17, 1980) (ARBITRA