29:1318(105)AR - ACT VS ARMY, NGB, PENNSYLVANIA
[ v29 p1318 ]
The decision of the Authority follows:
29 FLRA NO. 105
ASSOCIATION OF CIVILIAN TECHNICIANS Union and PENNSYLVANIA NATIONAL GUARD Agency Case No. 0-AR-1298
This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn filed by the Agency 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 We deny the Agency's exceptions.
A grievance was filed by four civilian technicians and submitted to arbitration. The issue concerned the arbitrability and the merits of whether the Agency violated the parties' collective bargaining agreement and pertinent agency regulations when it failed to post the position of aircraft pneudraulic system mechanic and filled it with an Active Guard/Reserve (AGR) status employee. The Arbitrator determined that the dispute was arbitrable and that the Agency violated the collective bargaining agreement and agency regulations by failing to post the position in question. Accordingly, as his award, he sustained the grievance and directed that the position should be posted in accordance with the procedure set forth in the collective bargaining agreement and agency regulation.
The Agency contends that the Arbitrator exceeded his statutory authority by deciding that the disputed position was part of the bargaining unit and was required to be posted in accordance with the merit promotion procedure of the collective bargaining agreement. The Agency maintains that the Arbitrator decided the question of the bargaining-unit status of the disputed position which under section 7105(a)(2) can only be decided by the Authority.
Where the bargaining-unit status of a position or individual is a collateral issue to a grievance otherwise properly brought under the negotiated grievance procedure, an arbitrator is not prohibited by section 7105 from addressing the issue. National Archives and Records Service General Services Administration and Local 2578, American Federation of Government Employees, 9 FLRA 381, 383 (1982). In addition, the Authority indicated in American Federation of Government Employees AFL-CIO and Equal Employment Opportunity Commission 15 FLRA 283 (1984) that in determining whether a negotiated merit promotion plan encompassed only bargaining-unit positions or extended to supervisory positions, the arbitrator was interpreting and applying the collective bargaining agreement in resolving whether the agency had met its negotiated obligations. Thus, we find that in determining that the disputed position was encompassed by the negotiated merit promotion plan, the Arbitrator was resolving an issue collateral to the grievance properly brought under the negotiated grievance procedure of whether the position should have been posted. Accordingly, this exception provides no basis for finding the award deficient.
The Agency contends that the award violates section 7106(a)(2)(A) of the Statute. Specifically, the Agency maintains the Arbitrator violated management's right to determine the skills and qualifications necessary for the disputed position by ruling on the adequacy of the skills and qualifications of the person selected for the position by management.
We find that the Agency has misinterpreted the award. In our view, the Arbitrator's award simply requires the Agency to comply with the procedure in the collective bargaining agreement applicable to filling positions in the bargaining uni