13:0173(36)AR - VA, Audie L. Murphy Memorial Veterans' Hospital and AFGE Local 3511 -- 1983 FLRAdec AR



[ v13 p173 ]
13:0173(36)AR
The decision of the Authority follows:


 13 FLRA No. 36
 
 VETERANS ADMINISTRATION,
 AUDIE L. MURPHY MEMORIAL
 VETERANS' HOSPITAL
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 3511
 Union
 
                                            Case No. O-AR-253
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator John F. Caraway filed by the Activity 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 Union filed
 an opposition.
 
    The dispute in this case concerns the filling of a supervisory clerk
 position at the Activity.  The Activity reassigned an employee from her
 position of clerk typist, GS-5, to the position of supervisory clerk,
 GS-5.  Thereafter, the supervisory clerk position was audited and was
 reclassified at GS-6.  On the basis of the record before the Authority,
 it appears that the employee assigned to the supervisory clerk position
 was noncompetitively promoted to the position of supervisory clerk,
 GS-6.  A grievance was filed and submitted to arbitration protesting the
 failure of the Activity to announce the vacancy in the position of
 supervisory clerk under the merit promotion plan.
 
    The Arbitrator determined that the Activity violated the parties'
 collective bargaining agreement, the merit promotion plan, and federal
 personnel regulations by failing to announce the position vacancy of
 supervisory clerk.  Accordingly, as his award, the Arbitrator ordered
 the Activity to "immediately announce the job of supervisory clerk and
 place that job up for competition in accordance with the Agreement and
 the Plan." The Arbitrator also specified that the incumbent employee
 would continue to retain the position of supervisory clerk and would not
 be barred from submitting her application for the position.
 
    In its exception the Activity contends that the award "violates
 retained management rights by extending the scope of collective
 bargaining, includes positions in the bargaining unit excluded by the
 Statute, and allows classification issues to be brought forth under a
 grievance procedure in violation of the Statute." Based on the record
 before the Authority, including the contentions of the parties, the
 Authority concludes that the exception provides no basis for finding the
 award deficient.  In the first place, it has not been demonstrated that
 by determining that the Activity was obligated under the terms of
 regulation, the merit promotion plan, and the parties' agreement to
 announce the vacancy in the supervisory clerk position for merit
 promotion, the Arbitrator in his award included "positions in the
 bargaining unit excluded by the Statute." Likewise, it has not been
 shown that either the grievance or the award concerns the classification
 of any position within the meaning of section 7121(c)(5) of the Statute.
  Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and
 American Federation of Government Employees, Local 987, 10 FLRA No. 69
 (1982).  Similarly, it has not been established that the award "violates
 retained management rights by extending the scope of collective
 bargaining." As noted, the Arbitrator has simply ordered the
 announcement of the vacancy primarily in accordance with the express
 requirements of the Activity's merit promotion plan and the award in no
 manner constitutes a restriction on the applicants or appropriate
 sources which management could consider or from which management could
 select in filling the position of supervisory clerk.  See National
 Treasury Employees Union and Internal Revenue Service, 7 FLRA No. 42
 (1981) (Proposal 4);  American Federation of Government Employees,
 AFL-CIO, International Council of United States Marshals Service Locals
 and Department of Justice, United States Marshals Service, 2 FLRA 764
 (1980).
 
    Finally, the Activity additionally appears to argue that the award is
 deficient because the incumbent employee was noncompetitively promoted
 to GS-6 as the result of the upgrading of the supervisory clerk position
 without a significant change in duties and responsibilities due to the
 correction of an initial classification error.  In this respect the
 Activity maintains that such a promotion is specifically excluded from
 the application of competitive procedures by the merit promotion plan
 and by Federal Personnel Manual chapter 335.  /1/ However, the
 Activity's bare statement alone as to the basis for the reclassification
 does not substantiate that the position in fact was upgraded without a
 significant change in duties and responsibilities due to the correction
 of an initial classification error, and consequently does not establish
 that the Arbitrator's award ordering announcement of the position is
 deficient.
 
    Accordingly, the Agency's exception is denied.  Issued, Washington,
 D.C., September 29, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ FPM chapter 335, subchapter 1-5b(1) provides that competitive
 procedures do not a