Federal Employees Metal Trades Council (Union) and Mare Island Naval Shipyard (Activity) 



[ v03 p555 ]
03:0555(90)AR
The decision of the Authority follows:


 3 FLRA No. 90
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL
 Union
 
 and
 
 MARE ISLAND NAVAL
 SHIPYARD
 Activity
 
                                            FLRC No. 78A-42
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
 REVIEW OF THE AWARD OF ARBITRATOR WILLIAM EATON FILED WITH THE FEDERAL
 LABOR RELATIONS COUNCIL.  /1/
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER INVOLVES THE
 GRIEVANT WHO WAS INITIALLY EMPLOYED AT THE ACTIVITY UNDER A CAREER
 APPOINTMENT FOR APPROXIMATELY TEN YEARS PRIOR TO HIS VOLUNTARY
 RESIGNATION IN AUGUST 1976.  IN DECEMBER 1976 THE GRIEVANT WAS REHIRED
 UNDER A TEMPORARY APPOINTMENT THAT WAS MADE NONCOMPETITIVELY ON THE
 BASIS OF HIS ELIGIBILITY FOR REINSTATEMENT.  BECAUSE THE GRIEVANT WAS
 ELIGIBLE FOR REINSTATEMENT, THE ACTIVITY WAS AUTHORIZED TO CONVERT THE
 GRIEVANT'S TEMPORARY LIMITED APPOINTMENT TO A PERMANENT (CAREER)
 APPOINTMENT.  HOWEVER, THE ACTIVITY REFUSED TO GRANT THE GRIEVANT'S
 REQUEST FOR CONVERSION TO CAREER STATUS ALTHOUGH DURING THIS TIME OTHER
 TEMPORARY EMPLOYEES HIRED ON THE SAME BASIS AS THE GRIEVANT BUT WITH
 LESS SERVICE AT THE ACTIVITY WERE GRANTED CAREER APPOINTMENTS.  THE
 GRIEVANT REMAINED A TEMPORARY EMPLOYEE WITH THE ACTIVITY UNTIL HIS
 TEMPORARY APPOINTMENT TERMINATED.
 
    A GRIEVANCE WAS FILED AND SUBMITTED TO ARBITRATION PROTESTING THAT
 THE GRIEVANT WAS IMPROPERLY DENIED CONVERSION TO CAREER STATUS BECAUSE
 OF HIS UNION ACTIVITIES.  THE ARBITRATOR FOUND THAT THE ACTIVITY'S
 DENIAL OF THE GRIEVANT'S REQUEST FOR CONVERSION TO CAREER STATUS WAS IN
 VIOLATION OF THE PARTIES' NEGOTIATED AGREEMENT.  THE ARBITRATOR
 CONCLUDED IN THIS RESPECT THAT THE DENIAL WAS DISCRIMINATION AGAINST THE
 GRIEVANT "BECAUSE OF HIS ENGAGEMENT IN LEGITIMATE AND AUTHORIZED UNION
 ACTIVITIES." AS A REMEDY THE ARBITRATOR ORDERED THAT THE GRIEVANT BE
 CONVERTED TO PERMANENT STATUS AND BE AWARDED "PAY FOR ALL WORK LOST AS A
 RESULT OF THE EMPLOYER'S IMPROPER ACTION."
 
    AS PREVIOUSLY STATED, THE AGENCY HAD FILED A PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL.  THE
 COUNCIL HAD ACCEPTED THE AGENCY'S PETITION FOR REVIEW ON THE AGENCY'S
 EXCEPTIONS THAT THE AWARD VIOLATES LAW AND VIOLATES EXECUTIVE ORDER
 11491, AS AMENDED.  THE COUNCIL ALSO HAS GRANTED THE AGENCY'S REQUEST
 FOR A STAY OF THE AWARD PENDING DETERMINATION OF THE APPEAL.  THIS CASE
 WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY, 44 F.R. 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 THIS CASE EXCEPT THAT THE
 WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD
 "COUNCIL" APPEARS IN SUCH RULES.  SECTION 2411.37(A) OF THE AMENDED
 RULES 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.
 
    IN ACCORDANCE WITH ESTABLISHED PRACTICE, THE COUNCIL HAD REQUESTED
 FROM THE CIVIL SERVICE COMMISSION ITS INTERPRETATION OF APPLICABLE LAW
 AND CIVIL SERVICE REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD
 IN THIS CASE.  THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY
 TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE MATTERS) REPLIED
 IN RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANT IN THIS CASE ALLEGED THAT THE AGENCY IMPROPERLY DENIED
 HIM CAREER STATUS
 
    BECAUSE OF HIS UNION ACTIVITIES.  THE GRIEVANT HAD BEEN EMPLOYED AT
 THE SHIPYARD UNDER A
 
    CAREER APPOINTMENT FOR APPROXIMATELY TEN YEARS PRIOR TO HIS VOLUNTARY
 RESIGNATION IN AUGUST
 
    1976.  IN DECEMBER 1976, THE GRIEVANT WAS REHIRED UNDER A TEMPORARY
 APPOINTMENT THAT WAS MADE
 
    NONCOMPETITIVELY ON THE BASIS OF THIS ELIGIBILITY FOR REINSTATEMENT.
 THE TEMPORARY
 
    APPOINTMENT WAS TERMINATED IN SEPTEMBER 1977.  DURING THE PERIOD OF
 THE GRIEVANT'S TEMPORARY
 
    APPOINTMENT, OTHER TEMPORARY EMPLOYEES WITH LESS SERVICE AT THE
 SHIPYARD (AND HIRED ON THE
 
    SAME BASIS AS THE GRIEVANT) WERE GIVEN CAREER APPOINTMENTS.
 
    THE ARBITRATOR FOUND THAT THE AGENCY'S FAILURE TO GIVE THE GRIEVANT A
 CAREER APPOINTMENT
 
    WAS BASED ON DISCRIMINATION BECAUSE OF "HIS ENGAGEMENT IN LEGITIMATE
 AND AUTHORIZED UNION
 
    ACTIVITIES." THE ARBITRATOR ORDERED THE AGENCY TO CONVERT THE
 GRIEVANT TO CAREER STATUS AS OF
 
    JULY 1, 1977, AND PAY HIM FOR ALL WORK LOST AS A RESULT OF THE
 EMPLOYER'S IMPROPER ACTION.
 
    SECTION 316.402(B)(1) OF THE FORMER CIVIL SERVICE COMMISSION'S
 REGULATIONS (5 CFR)
 
    AUTHORIZED APPOINTMENTS TO FORMER FEDERAL EMPLOYEES WHO, LIKE THE
 GRIEVANT, ARE ELIGIBLE FOR
 
    NONCOMPETITIVE REINSTATEMENT TO CAREER POSITIONS.  SECTION 4-8 OF
 CHAPTER 316 OF THE FEDERAL
 
    PERSONNEL MANUAL FURTHER AUTHORIZED AGENCIES TO CONVERT TEMPORARY
 LIMITED APPOINTMENTS BASED
 
    ON REINSTATEMENT ELIGIBILITY TO REINSTATEMENT WITHOUT TIME LIMITATION
 (I.E., CAREER
 
    APPOINTMENTS) WHEN APPROPRIATE.  WHETHER CONVERSION TO CAREER STATUS
 WOULD BE APPROPRIATE IN
 
    ANY PARTICULAR SITUATION WAS A MATTER TO BE DETERMINED BY AGENCY
 MANAGEMENT.
 
    ACCEPTANCE OF A TEMPORARY APPOINTMENT BY THE GRIEVANT DID NOT CONVEY
 TO HIM ANY ENTITLEMENT
 
    TO CONVERSION TO A PERMANENT (CAREER) APPOINTMENT AT A LATER DATE.
 PURSUANT TO CIVIL SERVICE
 
    RULE 7.1, MANAGEMENT RETAINED THE DISCRETION TO "FILL ANY POSITION IN
 THE COMPETITIVE SERVICE
 
    EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL SERVICE REGISTER OR BY
 NONCOMPETITIVE SELECTION
 
    OF A PRESENT OR FORMER FEDERAL EMPLOYEE IN ACCORDANCE WITH THE CIVIL
 SERVICE
 
    REGULATIONS." AGENCY MANAGEMENT, THEREFORE, MUST RETAIN THIS
 DISCRETION RESERVED TO IT BY
 
    CIVIL SERVICE RULE, AND CANNOT, THROUGH ITS COLLECTIVE BARGAINING
 AGREEMENT, ABROGATE THAT
 
    DISCRETION BY ANY PROVISION WHICH WOULD DIRECTLY OR INDIRECTLY GRANT
 TO AN ARBITRATOR THE
 
    AUTHORITY TO EXERCISE THIS RESERVED DISCRETION.  THEREFORE, AN
 ARBITRATOR CANNOT ORDER THAT A
 
    POSITION BE FILLED BY A SPECIFIC EMPLOYEE, THROUGH REINSTATEMENT OR
 THROUGH ANY OTHER
 
    MEANS.  ACCORDINGLY, THE ARBITRATOR'S ORDER TO CONVERT THE EMPLOYEE
 AS OF JULY 1, 1977,
 
    THEREFORE, IS INCONSISTENT WITH APPLICABLE CIVIL SERVICE RULES,
 REGULATIONS, AND INSTRUCTIONS.
 
    FURTHERMORE, IN REFERENCE TO THE ARBITRATOR'S AWARD OF BACK PAY, WE
 WISH TO POINT OUT THAT
 
    THE COMPTROLLER GENERAL RULED ON MARCH 19, 1975, THAT THE BACK PAY