20:0444(49)AR - Air Force, 1947 Support Group and AFGE-GAIU, Council of HQ, USAF Locals -- 1985 FLRAdec AR
[ v20 p444 ]
The decision of the Authority follows:
20 FLRA No. 49 U.S. AIR FORCE, 1947 SUPPORT GROUP Activity and AFGE-GAIU, COUNCIL OF HEADQUARTERS, USAF LOCALS, AFL-CIO Union Case No. 0-AR-899 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Louis Aronin filed by the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ The grievance before the Arbitrator was on the merits of the dispute over the grievant's failure to be selected for the Agency's Comptroller Civilian Career Management Program (CCCMP) Cadre. The Arbitrator in a previous award had found only certain aspects of the grievance to be arbitrable. As to that aspect of the grievance relating to the interview portion of the selection process for the CCCMP cadre, the Arbitrator as his award denied the grievance. He determined that the Union had not cited any statute or regulation that specifically or by inference precluded the type of interview utilized by the Agency as part of the evaluation process for selection to the cadre. The other aspect of the grievance related to the grievant's claim that he was improperly denied credit for his budget analyst experience. The Arbitrator noted that the crediting plan provision for experience in comptroller career program specialties required a notice of personnel action form (SF 50) which showed at least one year in two or more comptroller job specialties in a classification series other than that held by the applicant. The Arbitrator also acknowledged that the grievant's budget analyst experience did not qualify under this crediting plan provision. Nevertheless, the Arbitrator determined that the grievant had budget analyst experience that should be credited. Accordingly, as to this aspect of the grievance, the Arbitrator as his award ordered that the grievant shall be given credit for his budget analyst experience. The Union's exceptions that were timely filed appear to pertain only to the award insofar as it denied that aspect of the grievance relating to the interview portion of the selection process for the CCCMP cadre. Specifically, the Union contends that the award in this respect is contrary to numerous laws, rules, and regulations and is not supported by the record evidence. The Union further contends that the Arbitrator made erroneous procedural rulings, exceeded his authority, and did not adjudicate the matter under the proper legal framework. The Authority concludes that the Union's exceptions provide no basis for finding the award in this respect deficient. As has been noted, the Arbitrator in denying this aspect of the grievance expressly determined that the Union had in no manner demonstrated the illegality of the interview process and had not established that the weight given the interview should be changed. The Authority similarly finds that the Union in merely repeating those contentions in its exceptions to the award fails to demonstrate that the award in this respect is contrary to any law, rule, or regulation. The Authority further finds that the remaining exceptions and contentions constitute nothing more than disagreement with the Arbitrator's findings of fact, evaluation of evidence and testimony, and reasoning and conclusions and consequently provide no basis for finding the award deficient. See, e.g., Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108(1983). In its exceptions the Agency primarily argues that the award is deficient insofar as the Arbitrator has overruled the crediting plan provision limiting full credit for budget analyst experience to experience in positions in a budget analyst classification series. The Authority agrees. In Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA No. 112(1985), the Authority specifically agreed with the rationale of the court in Department of Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985), vacating National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247(1983). In Department of Treasury, U.S. Customs Service, the U.S. Court of Appeals for the D.C. Circuit found that a union crediting plan, which included points for experience, was inconsistent with 5 CFR 300.103(a) /2/ because the union's proposed employment "measurement instruments" were not based on a prior job analysis to determine if the criteria for which credit would be given were job related. 762 F.2d at 1122. Moreover, the court rejected the contention that the proposed crediting plan was bargainable because there was no reason to believe that any job analysis would find the proposal unrelated to job requirements. To the court, "the mere permissibility of an ex post facto job analysis, and the mere absence of a showing that such an analysis, if conducted, would invalidate the previously adopted measurement devices, falls far short of fulfilling the requirement that those devices 'be based on a job analysis to identity . . . (t)he factors that are important in evaluating candidates.' 5 CFR 300.103(a)." Id. The Authority finds these considerations equally applicable to the review of exceptions to arbitration awards when the awards resolve grievances challenging an employee's evaluation under an established crediting plan. In terms of this case, as has been noted, the Arbitrator rejected the provision for crediting experience in comptroller career program specialties established by the crediting plan. Instead, he directed that the grievant shall be given credit for budget analyst experience although the Arbitrator acknowledged that the experience was not gained in a position in a qualifying classification series as provided by the crediting plan. Neither the award nor the record indicates that the measurement device used by the Arbitrator in ordering that the grievant be credited for budget analyst experience gained in other than the required classifications was based on a preliminary job analysis and an ex post facto analysis cannot satisfy that requirement. Thus, because the award in effect directs the Agency to allow credit for experience not shown to be job-related, it is deficient as contrary to 5 CFR 300.103 and must be modified. Accordingly, the award is modified by striking the order to credit the grievant for budget analyst experience. /3/ Issued, Washington, D.C., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union filed timely exceptions to the supplementary Arbitrator's award. After the period for filing exceptions had expired, the Union filed amended exceptions. The Agency opposed the filing of amended exceptions by the Union. Because the proposed amended exceptions have not added additional grounds on which review of the award was requested, the amended exceptions have been considered by the Authority. See Social and Rehabilitation Service, Department of Health, Education and Welfare and American Federation of Government Employees, Local 41, AFL-CIO, 12 FLRA 257(1983). However, to the extent the Union's exceptions relate to an arbitrability award dated October 20, 1982, they are untimely and are dismissed. /2/ 5 CFR 300.103(1983) pertinently provides: Sec. 300.103 Basic requirements. (a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics. /3/ In view of this decision, it is not necessary for the Authority to address the Agency's other exceptions to the award.