Office of the General Counsel, National Labor Relations Board (Activity) and National Labor Relations Board Union (Union)

 6 FLRA No. 18
 
 OFFICE OF THE GENERAL COUNSEL,
 NATIONAL LABOR RELATIONS BOARD
 Activity
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Union
 
                                            Case No. O-AR-59
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR CORNELIUS J. PECK 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, THIS GRIEVANCE AROSE WHEN THE ACTIVITY
 PROMOTED CERTAIN EMPLOYEES WHO WERE GS-12 FIELD EXAMINERS TO GS-13
 NONSUPERVISORY FIELD EXAMINER POSITIONS.  IN DOING SO, THE ACTIVITY
 PASSED OVER FOR PROMOTION CERTAIN OTHER GS-12 FIELD EXAMINERS WHO HAD
 BEEN RECOMMENDED AND DECLARED ELIGIBLE FOR SUCH A PROMOTION AT AN
 EARLIER DATE THAN THE EMPLOYEES PROMOTED.  THE UNION ALLEGED THAT THE
 ACTIVITY VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY NOT
 FIRST PROMOTING THE EMPLOYEES WHO HAD BEEN RATED QUALIFIED THE LONGEST.
 THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH THE ARBITRATOR
 STATING THE ISSUES AS FOLLOWS:
 
    1.  WHETHER OR NOT A PROMOTION OF A GS-12 FIELD EXAMINER TO THE
 POSITION OF GS-13 FIELD
 
    EXAMINER MUST BE GIVEN TO THE GS-12 FIELD EXAMINER WHO HAS LONGEST
 BEEN RATED QUALIFIED IN THE
 
    REGION FOR THE POSITION OF GS-13 FIELD EXAMINER, OR WHETHER THE
 POSITION SHOULD BE FILLED UPON
 
    COMPETITIVE SELECTION CRITERIA.
 
    2.  WHETHER FEDERAL LAW OR REGULATIONS, PARTICULARLY THE FEDERAL
 PERSONNEL MANUAL,
 
    PRECLUDES THE AWARD OF THE POSITION OF GS-13 FIELD EXAMINER ON THE
 BASIS OF LENGTH OF
 
    QUALIFICATION FOR THE POSITION RATHER THAN COMPETITIVE CRITERIA.
 
    IN RESOLUTION OF THIS MATTER, THE ARBITRATOR FOUND THAT THE GS-13
 FIELD EXAMINER POSITIONS WERE REQUIRED TO BE FILLED COMPETITIVELY AND
 THAT, IN MAKING SELECTIONS FOR SUCH POSITIONS, THE ACTIVITY WAS
 PRECLUDED BY THE FEDERAL PERSONNEL MANUAL FROM GIVING CONTROLLING WEIGHT
 TO THE LENGTH OF TIME A PROMOTION CANDIDATE HAD BEEN RATED QUALIFIED IN
 THE REGION.  CONSEQUENTLY, THE ARBITRATOR RULED:
 
    A PROMOTION OF A GS-12 FIELD EXAMINER TO THE POSITION OF GS-13
 NONSUPERVISORY FIELD
 
    EXAMINER NEED NOT BE GIVEN TO THE GS-12 FIELD EXAMINER WHO HAS
 LONGEST BEEN RATED QUALIFIED IN
 
    THE REGION FOR THE POSITION OF GS-13 FIELD EXAMINER.
 
    ACCORDINGLY, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS 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 RULES AND REGULATIONS, 5 CFR PART 2425.
  /2/ THE AGENCY FILED AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
 AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  IN SUPPORT OF THIS
 EXCEPTION, THE UNION ARGUES THAT THE ARBITRATOR ERRED IN INTERPRETING
 AND APPLYING THE FEDERAL PERSONNEL MANUAL.  IT IS THE UNION'S POSITION
 THAT THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL BECAUSE UNDER
 THE FEDERAL PERSONNEL MANUAL THE LENGTH OF TIME A FIELD EXAMINER HAS
 BEEN RATED QUALIFIED FOR THE POSITION OF GS-13 FIELD EXAMINER MAY
 PROPERLY BE THE CONTROLLING AND DETERMINATIVE FACTOR IN THE AGENCY'S
 COMPETITIVE SELECTION FOR THE POSITIO