15:0283(63)AR - AFGE and EEO Commission -- 1984 FLRAdec AR



[ v15 p283 ]
15:0283(63)AR
The decision of the Authority follows:


 15 FLRA No. 63
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
 and
 
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 Agency
 
                                            Case No. O-AR-403
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Harold C. White filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The dispute in this matter concerns the filling of a supervisory
 equal opportunity specialist position.  A grievance was filed and
 submitted to arbitration claiming that the Agency violated the parties'
 collective bargaining agreement in filling the position.  The Arbitrator
 found that by posting the vacancy announcement for 22 days, the Agency
 violated the agreement provision providing for a maximum posting period
 of 20 days.  In so ruling the Arbitrator rejected the Agency's argument
 that the negotiated merit promotion plan of the agreement, including the
 20-day rule, was not intended to apply to supervisory positions.  To the
 Arbitrator it was clear that negotiated promotion procedures are
 permitted to encompass supervisory positions and that the parties'
 agreement covers employee promotions to supervisory positions.  As a
 remedy the Arbitrator directed the Agency to repost the vacancy and
 proceed through the selection process to fill the vacancy.
 
    In its first exception the Agency contends that the award is contrary
 to law.  Specifically, the Agency maintains that promotion procedures
 for non-bargaining unit positions, such as supervisory positions, are
 outside the obligation to bargain.  The Agency further maintains that,
 with respect to this collective bargaining agreement, it elected not to
 bargain on promotion procedures for supervisory positions.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  Although promotion procedures for
 supervisory positions are outside the obligation to bargain, an agency
 is not prohibited from bargaining on such a matter and therefore may
 bargain on and agree to promotion procedures for supervisory positions
 as part of its collective bargaining agreement.  /1/ Clearly, once
 included as part of the collective bargaining agreement, promotion
 procedures for supervisory positions may properly be enforced through
 arbitration.  See Local 1917, American Federation of Government
 Employees and United States Immigration and Naturalization Service,
 Eastern Region, 13 FLRA No. 19 (1983).  Therefore, the Authority finds
 that with the parties having negotiated a merit promotion plan and with
 the Arbitrator having expressly determined that the plan encompasses
 supervisory positions and having directed the Agency to meet its
 negotiated obligations, the Agency's exception fails to establish that
 the award is contrary to law.  The Agency's contention, that the
 agreement language fails to evidence a clear and unmistakable intention
 on the part of the Agency to have supervisory positions encompassed by
 the negotiated merit promotion plan, constitutes nothing more than
 disagreement with the Arbitrator's interpretation of the agreement and
 provides no basis for finding the award deficient.  E.g., Overseas
 Education Association and Department of Defense Dependents Schools
 (DODDS), Pacific Region, 13 FLRA No. 89 (1983).
 
    In its second exception the Agency contends that the Arbitrator
 violated law by requiring that the Agency make a selection to fill the
 reannounced position.  However, on its face the award only requires that
 the Agency repost the position and proceed through the selection
 process.  In addition, the Arbitrator specifically stated that the
 corrective action should conform to established procedures.  Thus, the
 award does not require the Agency to make an actual selection to fill
 the position, and no basis is provided for finding the award contrary to
 management's right to select in filling positions.  See Adjutant
 General, State of Oklahoma,