Northern Division, Naval Facilities Engineering Command, Philadelphia, Pennsylvania (Activity) and National Federation of Federal Employees, Local 1430 (Union) 



[ v03 p682 ]
03:0682(109)AR
The decision of the Authority follows:


 3 FLRA No. 109
 
 NORTHERN DIVISION, NAVAL
 FACILITIES ENGINEERING
 COMMAND, PHILADELPHIA, PENNSYLVANIA
 Activity
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL
 1430
 Union
 
                                            Case No. 0-AR-69
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR WILLIAM GOMBERG 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 DISPUTE IN THIS MATTER AROSE IN 1979
 WHEN A CANDIDATE OTHER THAN THE GRIEVANT WAS SELECTED FOR THE POSITION
 OF GENERAL ENGINEER, GS-13.  IN 1976 A PREDECESSOR POSITION, ENTITLED
 "VALUE ENGINEER," HAD BEEN VACATED FOLLOWING AN UNSUCCESSFUL ATTEMPT TO
 UPGRADE IT FROM A GS-12 TO A GS-13.  CONSEQUENTLY, THE DECISION WAS MADE
 TO LEAVE THE POSITION VACANT AND TO INCORPORATE ITS FUNCTIONS INTO OTHER
 POSITIONS.  IN 1978 A DETERMINATION WAS MADE TO RESTORE INTO ONE
 POSITION THE FUNCTIONS OF VALUE ENGINEER, AND THE RESULTING NEW POSITION
 WAS CLASSIFIED AS GENERAL ENGINEER, GS-13.  THIS NEW POSITION WAS
 ADVERTISED AND FILLED IN 1979. THE CANDIDATE SELECTED FOR THE GENERAL
 ENGINEER POSITION WAS AN EMPLOYEE WHO HAD BEEN VOLUNTARILY PERFORMING
 SOME OF THE FUNCTIONS OF THE OLD VALUE ENGINEER POSITION (DESCRIBED AS
 DUTIES OF THE NEW POSITION), IN ADDITION TO HIS REGULARLY ASSIGNED WORK,
 SINCE 1977.
 
    THE UNION FILED A GRIEVANCE OVER THE FILLING OF THE GENERAL ENGINEER
 POSITION, ALLEGING THAT THE SELECTION PROCESS HAD BEEN TAINTED BECAUSE
 THE SELECTED EMPLOYEE HAD BEEN PERFORMING SOME OF THE DUTIES OF THE NEW
 POSITION SINCE 1977 AND THAT THE TRANSFER OF DUTIES IN 1977 SHOULD HAVE
 BEEN SUBJECT TO COMPETITIVE BIDDING UNDER THE AGENCY'S MERIT PROMOTION
 PLAN SINCE THE TRANSFER LED TO THE CREATION OF A POSITION OF A HIGHER
 CLASSIFICATION.  UNABLE TO REACH A SETTLEMENT, THE PARTIES ULTIMATELY
 SUBMITTED THE GRIEVANCE TO ARBITRATION.
 
    THE ARBITRATOR DENIED THE GRIEVANCE.  HE CONCLUDED THAT THE UNION'S
 CONTENTIONS WERE WITHOUT MERIT, FINDING THAT THERE WAS NO BASIS FOR THE
 ACTIVITY TO HAVE BEEN AWARE OF A POSSIBLE PROMOTIONAL OPPORTUNITY WHEN
 THE DUTIES WERE TRANSFERRED IN 1977.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION THE UNION CONTENDS THE ARBITRATOR INCORRECTLY
 CONCLUDED THAT THE GOVERNMENT FUNCTIONARIES WERE NOT AWARE OF THE
 PROMOTIONAL OPPORTUNITIES OF THE POSITION IN QUESTION IN 1977.  THE
 UNION, TO SUPPORT THIS CONTENTION, ARGUES THAT A SUPERVISORY MEMO DATED
 NOVEMBER 24, 1974, CLEARLY INDICATED THAT THE POSITION HAD POTENTIAL FOR
 A HIGHER CLASSIFICATION.  CONSEQUENTLY, THE UNION ASSERTS, MANAGEMENT
 WAS WELL AWARE OF THE PROMOTIONAL OPPORTUNITIES.
 
    THE UNION'S EXCEPTION CONSTITUTES DISAGREEMENT WITH THE ARBITRATOR'S
 FINDINGS OF FACT.  THIS DOES NOT ESTABLISH A BASIS FOR FINDING AN AWARD
 DEFICIENT.  UNITED STATES ARMY MISSILE MATERIAL 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).  THEREFORE, THE
 UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT
 UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM
 RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE
 ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., JULY 18, 1980