28:0753(95)AR - AFGE, LOCAL 2302 VS ARMY, FORT KNOX
[ v28 p753 ]
The decision of the Authority follows:
28 FLRA NO. 95 U.S. ARMY ARMOR CENTER AND FT. KNOX Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2302 Union Case No. 0-AR-1354
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator W. Thomas Mulhall filed by the Department of the Army (Agency) and 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. 1 The Agency filed an opposition to the Union's exception.
II. Background and Arbitrator's Award
The grievance in this case concerned the supervisor's decision to appoint the grievant to the position of Boiler Plant Operator, WG-10, and the subsequent reversal of that decision following review by a higher level management official.
The grievant was selected for the boiler plant operator position by the supervisor of the boiler plant section. The selection was reviewed by the chief of the Utilities and Structure Division. The chief determined that the grievant did not appear to be as qualified as the other applicants and discussed his finding with the supervisor, who informed him that the selection was based on the grievant's "long-standing federal government seniority." Award at 5. The chief instructed the supervisor to reconsider the selection, using only "appropriate, recognized job related factors." Award at 5. On reconsideration, the supervisor changed his decision and selected another candidate for the position. The grievant filed a grievance on the matter which was submitted to arbitration.
The Arbitrator framed the issue as follows:
Did the Agency violate the LMA (labor management agreement) by its review and reversal of the decision to appoint the grievant to the position for which he applied? If so, what is the proper remedy?
The Arbitrator noted that the person selected had extensive training and experience with high pressure boilers while the grievant did not, and that the selectee had more experience with boiler operations than the grievant. The Arbitrator found, therefore, that the reevaluation of the selection in this case was justified because the supervisor's decision to select the grievant instead of another candidate was improperly based on seniority rather than job-related factors as required by U.S. Army Armor Center (USAAC) Regulation 690-5 which was incorporated into the parties' agreement.
The Arbitrator agreed with the Union that the chief did not have the authority to review the final selection for the vacancy under USAAC Regulation 690-5 or the parties' agreement, which required that merit promotion actions be in accordance with that regulation, because he was not a commander, director, or unit chief. The Arbitrator noted that this determination did not prevent the chief from reviewing promotion selections in accordance with an appropriate chain of command as outlined in the regulation. However, the Arbitrator concluded that the Agency's violation in this manner was "de minimis" and did not entitle the grievant to the relief he requested.
As his award, the Arbitrator denied the grievance in part and granted it in part. Specifically, the Arbitrator did not award the grievant the boiler plant operator position. However, he did order the Activity to comply with the procedures set forth in USAAC Regulation 690-5 in all future cases. The Arbitrator stated in particular that "(any) action which is taken to reverse or further review the selection process must issue from either a commander, director or unit chief." Award at 15.
III. Union Exception
The Union contends that the Arbitrator failed to properly interpret the provisions of the controlling regulation, USAAC Regulation 690-5, specifically Chapter 4, Section 4-2(a)(1) which provides that the selecting official is entitled to "select or non-select" candidates referred. The Union contends that the grievant was properly selected for and is entitled to the position. In its opposition, the Agency contends that the Union is only disagreeing with the Arbitrator and attempting to relitigate the case before the Authority.
B. Analysis and Conclusions
We find that the Union's exception simply constitutes disagreement with the Arbitrator's findings of fact and with his reasoning and conclusions which led to his finding that the grievant was not properly selected for the position. This does not provide a basis for finding the award deficient. See, for example Social Security Administration, Albuquerque Data Operations Center and American Federation of Government Employees, Local 3512, 23 FLRA No. 41 (1986).
IV. Agency Exception
The Agency contends in its exception that the portion of the Arbitrator's award which orders the Activity to comply with Regulation 690-5 and which restricts the Activity's authority to designate which higher level management officials can review and reverse a lower level supervisor's selection decision interferes with its right to assign work under section 7106(a)(2)(B) of the Statute and with its right to make selections under section 7106(a)(2)(C).
B. Analysis and Conclusions
We find that the Agency's exception provides no basis for finding the award deficient. The Arbitrator has merely instructed the Activity to follow the procedures which were established in its regulation. He has made no changes in the regulation and has not interpreted the regulation in such a manner as to interfere with management's rights as alleged by the Agency. The Activity has already exercised its right to determine which management officials will be responsible for reviewing selection actions and nothing in the award would prevent it from changing that determination by amending its regulation. The Agency made essentially the same arguments before the Arbitrator as it is now making before us. We conclude that it is only attempting to relitigate the matter, which p