13:0057(12)AR - Army Aviation Center, Fort Rucker, AL and AFGE Local 1815 -- 1983 FLRAdec AR



[ v13 p57 ]
13:0057(12)AR
The decision of the Authority follows:


 13 FLRA No. 12
 
 U.S. ARMY AVIATION CENTER,
 FORT RUCKER, ALABAMA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1815, AFL-CIO
 Union
 
                                            Case No. O-AR-331
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator William T. Rutherford filed by the Union under section
 7122(a) of the Federal Service Labor-Management Relations Statute (the
 Statute) and part 2425 of the authority's Rules and Regulations.
 
    The dispute in this matter concerns the denial of a noncompetitive
 career promotion to the grievant when his position was reclassified at a
 higher grade because of the assignment of additional duties.  A
 grievance disputing the denial was filed and submitted to arbitration.
 The Arbitrator determined that the assignment of additional duties was
 the result of planned management action, a situation addressed in the
 merit promotion plan negotiated by the parties.  The Arbitrator noted
 that the plan provides an exception to the application of competitive
 procedures in filling upgraded positions only when the upgrade was not
 the result of planned management action.  Thus, in accordance with the
 negotiated merit promotion plan, the Arbitrator ruled that competitive
 procedures were required in this case.  Consequently, he denied the
 grievance.
 
    In its exception the Union essentially claims that the award is
 deficient because the merit promotion plan requirement of competitive
 procedures in this case had been invalidated by the issuance in 1979 of
 a revised Federal Personnel Manual (FPM) chapter 335, which specifically
 eliminated the requirement of competitive procedures for filling
 positions upgraded as a result of planned management action, and had
 also been invalidated by the issuance of corresponding agency
 regulations.
 
    The Authority concludes that the exception fails to establish that
 the award is deficient.  The revised FPM provision on which the
 exception is founded neither prohibits the application of competitive
 procedures nor mandates the granting of a noncompetitive career
 promotion.  /1/ Rather, the provision permits an agency to act to
 exclude in its merit promotion plan such a career promotion from the
 application of competitive procedures.  Thus, affirmative action or
 negotiated agreement in this respect is required on the part of an
 agency, and the provision of the merit promotion plan requiring the
 application of competitive procedures is maintained until such action or
 agreement.  Consequently, the regulatory provisions on which the
 exception is based were not in conflict with the merit promotion plan
 provision negotiated, and evidently maintained, by the parties requiring
 the application in this case of competitive procedures.  /2/
 Accordingly, the exception is denied.  Is