17:0365(56)AR - EPA, Region 9 and Engineers and Scientists of California, MEBA -- 1985 FLRAdec AR
[ v17 p365 ]
The decision of the Authority follows:
17 FLRA No. 56 ENVIRONMENTAL PROTECTION AGENCY REGION 9 Activity and ENGINEERS AND SCIENTISTS OF CALIFORNIA, MEBA, AFL-CIO Union Case No. O-AR-840 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Harvey Letter filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The parties stipulated the issue before the Arbitrator as follows: Did the Employer violate Article XV of the Agreement in filling the position of Underground Injection Control Team Leader in the Water Supply Section? If so, what shall be the remedy? In a corrected award, the Arbitrator ruled in favor of the Union and directed: 1. In filling professional positions of Grades GS-12 and above, including Team Leader positions, that are encompassed by the "Unit Designation" which appears in Article I, Section 3 of the Parties' Labor-Management Agreement, the Employer shall implement the procedures of Article XV of the Agreement. In its exceptions, the Activity contends that the award is contrary to law and Government-wide regulation, and that the Arbitrator exceeded his authority. Specifically, the Activity argues that the award violates management's right under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4, to fill positions from among properly ranked and certified candidates for promotion or from any other appropriate source. The Authority concludes that to the extent the Arbitrator's award requires the Activity to fill positions from among candidates resulting from adherence to the procedures of the parties' agreement and precludes selection from other appropriate sources, the award is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4, and must be modified. /1/ U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA 161 (1983). The Activity also argues that the Arbitrator exceeded his authority when he rendered an award covering " . . . professional positions of Grades GS-12 and above, including Team Leader positions. . , . ." Noting that the stipulated issue before the Arbitrator referenced only the filling of one Team Leader position, the Activity argues that the Arbitrator was without authority to render an order as to other positions. Under the facts presented, the Authority is persuaded by the Agency's argument. Indeed, the Union only sought a remedy " . . . that would require all Team Leader positions to be filled pursuant to Article XV." Under the facts presented, the Authority concludes that the Arbitrator exceeded his authority when he issued an affirmative order affecting positions and employees beyond the scope of the stipulated grievance. American Federation of Government Employees, AFL-CIO, National Immigration and Service Council and U.S. Immigration and Naturalization Service, 15 FLRA No. 76 (1984). To that limited extent, the award is also deficient and must be modified. Accordingly, the Authority modifies the award to provide the following remedy in place of that ordered by the Arbitrator: In filling Team Leader positions that are encompassed by the "Unit Designation" which appears in Article I, Section 3 of the Parties' Labor-Management Agreement, the Employer shall implement the procedures of Article XV of the Agreement. In addition, the filling of Team Leader positions must be in accordance with controlling law and regulation, including section 7106(a) of the Federal Service Labor-Management Relations Statute and Chapter 335 of the Federal Personnel Manual, subchapter 1-4, Requirement 4. Issued, Washington, D.C., March 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Activity also alleges that the Arbitrator's award violates management's right to decide not to fill the positions involved. However, on its face the award does not require that positions be filled, but rather, directs actions by management "(i)n filling . . . positions. . . ." Moreover as modified by the Authority, the award is consistent with section 7106(a)(2)(C) of the Statute and FPM chapter 335 and therefore does not compel management to fill any position should it choose to leave such position vacant. Accordingly, no basis is provided for finding the award, as modified, deficient on this ground as alleged by the Activity.