31:0305(28)AR - DODDS, Pacific Region and Overseas Education Association -- 1988 FLRAdec AR



[ v31 p305 ]
31:0305(28)AR
The decision of the Authority follows:


 31 FLRA NO. 28

                  31 FLRA 305

  23 FEB 1988
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS--
PACIFIC REGION

             Activity

      and

OVERSEAS EDUCATION
ASSOCIATION

              Union
Case No. 0-AR-1413

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Timothy D. W. Williams. The Arbitrator first
found that the grievances were grievable and arbitrable and
rejected the claim that one of the grievances had not been timely
filed. The Arbitrator further found that the two grievants are
qualified as counselors in accordance with applicable regulations
and qualification standards. Accordingly, he directed that they
be recertified as counselors and that counselor positions be made
available to them with backpay. The Agency (DoDDS) filed
exceptions under section 7122(a) of the Federal Service Labor -
Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations.

     We conclude that the Agency has failed to establish that the
grievances are not arbitrable or that the Arbitrator erred (1) by
finding that the one grievance had been timely filed, and (2) by
relying on a regulation and an agreement provision which were not
in effect at any time material to the grievances. However, we
conclude that by finding that the grievants are qualified as
counselors and by directing that they be offered counselor
positions with backpay, the award is contrary to management's
rights to assign employees under section 7106(a)(2)(A) and to
make selections in filling positions under section 7106(a)(2)(C).


     II. Background

     The parties submitted two grievances to arbitration
concerning the Agency's determinations that the grievants were
not qualified as counselors because they did not meet the
Agency's qualification standards.

     A. Grievant David Markewitz

     Grievant Markewitz' education included a B.A. in journalism,
a Master's degree in social studies, and a Ph.D. in psychology.
In 1980, he was certified by the Agency as an elementary and
secondary school counselor. In March 1985, he was assigned as a
high school counselor and social studies teacher where his
counseling activities comprised two periods per day. He was
selected for assignment to a full-time counseling position for
the 1985-86 school year. However, in May 1985, he was advised by
the Agency that he was not qualified as a counselor.

     The Agency stated that in order to be qualified as a
counselor under the qualification standards set forth in agency
regulation and the parties' collective bargaining agreement, the
employee must have a Master's degree in educational guidance and
counseling or course work in guidance and counseling. The Agency
determined that Grievant Markewitz was not qualified for
assignment as an elementary or secondary school counselor because
he did not have a Master's degree in guidance and counseling and
because a majority of his graduate-level course work was in
psychology and not in guidance and counseling. Consequently,
Grievant Markewitz was assigned as a high school teacher rather
than a counselor for the 1985-86 school year. In 1986, the Agency
did not recertify Grievant Markewitz as an elementary or
secondary school counselor.

     A grievance was filed contending that management's decision
regarding the grievant's qualifications was arbitrary and
capricious and constituted a misinterpretation of pertinent
provisions of agency regulation and the collective bargaining
agreement.

     B. Grievant Mary Louise Owen

     Grievant Owen's education included a B.S. degree in
education and a Master's degree in counseling psychology. From
1975 to 1981, she was a school guidance counselor with the
Agency. In 1980, she was certified by the Agency as an 
elementary and secondary school counselor, and in 1986, she was
recertified in these categories.

     During the 1985-86 school year, Grievant Owen was an
elementary school teacher. In the spring of 1986, shortly after
she had been recertified, she requested reassignment to a
counseling position. She was advised by the Agency that she was
not qualified as a counselor because she did not have a Master's
degree in educational guidance and counseling and because her
course work did not emphasize school guidance and counseling.

     She filed a grievance contending that she had not been
treated fairly.

     III. Arbitrator's Award

     A. Threshold Issues of Grievability and Arbitrability

     The Arbitrator considered the issues of whether the
grievances were grievable and whether the grievance of Grievant
Markewitz had been timely filed. The Arbitrator concluded that
the two grievances were grievable and arbitrable because they
concerned the manner in which the Agency interpreted and applied
the established qualification standards to the two grievants. He
also concluded that under the provisions of the parties'
collective bargaining agreement, the grievance of Grievant
Markewitz had been timely filed.

     B. Issue on the Merits

     The Arbitrator framed the issue on the merits as whether the
grievants were qualified as counselors in accordance with
applicable regulations and qualification standards.

     The Arbitrator noted that at all relevant times, the
qualification standards for certification as an elementary or
secondary school counselor required a Master's degree in
educational guidance and counseling. The Arbitrator noted that in
1980, the Agency certified both grievants as elementary and
secondary school counselors and in 1986, recertified Grievant
Owen in both categories.

     The Arbitrator concluded that although the qualification
standards had not been changed (except in minor respects which
were not involved in the grievances), the Agency changed its
interpretation of the qualification standards. The Arbitrator
acknowledged that the Agency has the right to establish
the standards, to change the standards, and to determine whether
an individual employee meets the standards. The Arbitrator
further acknowledged that the Agency has the right to change its
interpretation of the standards. Moreover, the Arbitrator
concluded that the Agency at the arbitration hearing had
articulated a reasonable basis for more restrictively
interpreting the standards. However, the Arbitrator determined
that the Agency had acted arbitrarily and capriciously by
substantially altering its interpretation of the qualification
requirements without providing notice of the changed
interpretation to employees.

     The Arbitrator ruled that the Agency's failure to notify the
grievants and provide information concerning the classes the
grievants should take to become qualified violated "at least the
spirit" of the provision of the parties' agreement requiring the
Agency to assure that employees are provided appropriate
guidance, assistance, and counseling concerning certification
requirements. Award at 48.

     The Arbitrator also addressed the question of the grievants'
recertification. He found that the Agency's failure to recertify
Grievant Markewitz and to maintain Grievant Owen's
recertification was a clear violation of the agency certification
regulation.

     The Arbitrator acknowledged that the grievants did not meet
the Agency's new interpretation of the qualification standards.
However, the Arbitrator found that, under the certification
regulation, current qualification is not required. He noted that
the requirements for recertification are different from those
applicable to a reassignment. The Arbitrator found that to be
eligible for reassignment, an employee must both hold an
applicable certification and meet the current qualification
requirements for the position. Under the certification
regulation, an employee is entitled to be recertified when the
employee meets the qualification requirements "for any of the
last 3 school years of the certification period." The Arbitrator
ruled that Grievant Owen was entitled to maintain her
recertification by the Agency in 1986 for elementary and
secondary school counselor. The Arbitrator also ruled that
Grievant Markewitz was entitled to have been recertified for
elementary and secondary school counselor in 1986. He concluded
that the grievant met the qualification requirements for one of
his last 3 years of his certification period because the Agency
had assigned him as a counselor in school year 1984-85. 

     C. Award and Remedies

     The Arbitrator concluded that both grievants qualified as
counselors in accordance with applicable regulations and
qualification standards. He awarded the grievants the following
remedies:

     The appropriate remedy regarding grievant David Markewitz
is:

     a. The grievant should have been placed in the position of
Counselor at Kadena High School for the year 1985-86. Therefore
the grievant is granted a back pay award effective from March 5,
1986 through the remainder of that school year. The award is for
the difference between the salary the grievant made for that time
period and the salary he would have made as a Counselor.

     b. DoDDS is directed to reissue the grievant, David
Markewitz, his 1986 certificate and add categories 400 and 401
(Secondary and Elementary Counselor) to those areas on his
current certificate.

     c. DoDDS is directed to make available to the grievant,
David Markewitz, a Counselor position. If none are currently
available in a location or program acceptable to the grievant,
then he is awarded the right of first refusal to future available
Counselor positions. This right extends until the grievant
accepts a position or until September 1, 1989, whichever comes
first.

     The appropriate remedy regarding grievant Mary Louise Owen
is:

     a. The grievant should have been placed in the position of
Counselor at Kubasaki High School for school year 1986-87. The
grievant is granted a back pay award effective for school year
1986-87. The award is for the difference between the salary the
grievant made for that time period and the salary she would have
made as a Counselor. 

     b. DoDDS is directed to reissue the grievant, Mary Louise
Owen, her 1986 certificate and add categories 400 and 401
(Secondary and Elementary Counselor) to those areas on her
current certificate.

     c. DoDDS is directed to make available to grievant Mary
Louise Owen a Counselor position. If none are currently available
in a location or program acceptable to the grievant, then she is
awarded the right of first refusal to future available Counselor
positions. This right extends until the grievant accepts a
position or until September 1, 1989, whichever comes first.

     IV. First Exception

     A. Contentions

     The Agency contends that the award is contrary to the
Statute. The Agency maintains that the grievances are excluded
from coverage under the negotiated grievance procedure because
they concern certification within the meaning of section
7121(c)(4).

     B. Analysis and Conclusions

     We conclude that the Agency fails to establish that the
award is contrary to the Statute as alleged. Section 7121 (c) (4)
excludes from the coverage of the grievance procedure prescribed
by the Statute grievances concerning "examination, certification,
or appointment." In view of the group of matters enumerated in
section 7121(c)(4), we find that "certification" refers to the
process defined in Federal Personnel Manual (FPM) chapter 332.
FPM chapter 332, subchapter 1-6 defines "certification" as the
process by which the Office of Personnel Management submits
certificates of a list of eligibles from a register to appointing
officers so that the eligibles may be considered for appointment.
Consequently, the grievances and the award concerning the
eligibility of the grievants to be recertified as counselors are
not precluded by section 7121(c)(4) of the Statute. Accordingly,
this exception is denied. 

     V. Second Exception

     A. Contentions

     The Agency contends that the Arbitrator erred in relying on
a certification regulation and an agreement provision which were
not in effect at any time material to the grievances. The Agency
also contends that the Arbitrator erred in finding that the
grievance of Grievant Markewitz had been timely filed under the
agreement.

     B. Analysis and Conclusions

     We conclude that this exception fails to establish that the
award is deficient. The Agency fails to establish that the
Arbitrator relied on a certification regulation and a collective
bargaining agreement provision which were not in effect at any
time material to the grievance. In rendering his award, the
Arbitrator relied on the Agency's failure to provide notice to
employees of the changed interpretation of the qualification
standards. The Arbitrator's references to subsequent provisions
were only for the purpose of noting that the standards had not
materially changed, and the references provide no basis for
finding the award deficient. The Agency's contention that the
Arbitrator erred in finding that the grievance of Grievant
Markewitz had been timely filed constitutes nothing more than
disagreement with the Arbitrator's ruling on procedural
arbitrability. See, for example, Oklahoma City Air Logistics
Center, Tinker Air Force Base, Oklahoma and American Federation
of Government Employees, Local No. 916, 30  FLRA  No. 125 (1988)
(exception which simply disagrees with an arbitrator's
determinations on the procedural arbitrability of the grievance
provides no basis for finding the award deficient). Accordingly,
this exception is denied.

     VI. Third and Fourth Exceptions

     A. Contentions

     The Agency contends that the award is contrary to section
7106(a) of the Statute and the Back Pay Act, 5 U.S.C. 5596. The
Agency argues that by determining that the grievants are
qualified for counselor positions and by requiring that they be
offered counselor positions, the award conflicts with
management's rights to establish qualifications, to determine
whether individual employees meet the qualifications, and to
assign employees to positions for which management determines
they are qualified. The Agency further argues that the
Arbitrator failed to make the specific findings necessary for an
award of backpay under the Back Pay Act.

     B. Analysis and Conclusions

     We conclude that the award is deficient as contrary to
section 7106(a) of the Statute. We find that by ruling that the
grievants are qualified as counselors under applicable
regulations and qualification standards and by directing that
counselor positions be made available to them with backpay, the
award is contrary to management's rights to assign employees
under section 7106(a)(2)(A) and to make selections in filling
positions under section 7106(a)(2)(C).

     In Overseas Education Association and Department of Defense
Dependents Schools, 29 FLRA  734 (1987), we considered the
negotiability of a number of proposals relating to the
certification and qualification of teachers and educators
employed by the Agency. We recognized that the determination of
the personnel requirements of a position--the qualifications,
skills, and abilities needed to perform the work of the
position--is encompassed within management's rights to assign
employees under section 7106(a)(2)(A) and to make selections in
filling positions under section 7106(a)(2)(C). 29 FLRA  at
803-08, 813-14. We found that proposals which prevented
management from changing qualification requirements or which
required the Agency to consider employees eligible for positions
regardless of changes in qualification standards conflicted with
management's rights to assign employees and to make selections in
filling positions. 29 FLRA  734 (Proposals 51, 53, 58-61).

     We conclude that the award in this case conflicts with
management's rights to assign employees and to make selections in
filling positions. The Arbitrator acknowledged that management
had the right to change the interpretation of the qualification
standards and that the grievants did not meet the Agency's new
interpretation of the standards. However, he concluded that the
Agency (1) had acted arbitrarily and capriciously in altering its
interpretation of the standards, and (2) had violated "at least
the spirit" of the agreement by failing to notify the grievants
of what courses were necessary for them to complete to qualify
under the new interpretation of the standards. Despite his
acknowledgment that the grievants did not meet the new
interpretation, the Arbitrator ruled that the grievants are
qualified as counselors and directed that counselor positions be
made available to them with backpay. 

     An arbitration award may not improperly deny an agency the
authority to exercise its rights under section 7106(a) of the
Statute. For example, Naval Undersea Warfare Engineering Station,
Keyport, Washington and International Association of Machinists
and Aerospace Workers, Local 282, 22 FLRA  957, 959 (1986).
However, management's rights under section 7106(a) are subject to
section 7106(b)(2) and (3). Thus, an award that simply enforces
an applicable negotiable procedure or appropriate arrangement is
not deficient as contrary to section 7106(a). Id.

     In this case, the award directly interferes with
management's rights, encompassed under the rights to assign
employees and to make selections in filling positions, to
establish qualification standards, to interpret the standards, to
change the interpretation of the standards, and to determine
whether individual employees meet the standards. The award does
not simply constitute the enforcement of an applicable procedure
or appropriate arrangement of the parties' collective bargaining
agreement.

     To the extent that the Arbitrator based his award on a
finding that the Agency acted arbitrarily and capriciously, there
is nothing in the record on which to conclude that the Arbitrator
enforced a contract provision providing for review of the
exercise of management's rights under a standard of arbitrary or
capricious. To the extent that the Arbitrator based his award on
"at least the spirit" of the contract provision which requires
the Agency to provide guidance, assistance, and counseling on
certification, the award is also deficient. The Arbitrator's
finding does not constitute a finding of a violation of the
collective bargaining agreement.

     Furthermore, even if we viewed the award as finding a
violation of a provision of the parties' agreement, the award
improperly denies management the rights to assign employees under
section 7106(a)(2)(A) and to make selections in filling positions
under section 7106(a)(2)(c). The Arbitrator's enforcement of the
collective bargaining agreement in this manner makes no provision
for the grievants becoming qualified under the Agency's new
interpretation of the qualification standards. There is no
requirement that the grievants successfully complete the courses
that have been identified by the Agency as necessary for them to
meet the qualification standards for elementary or secondary
school counselor. Instead, the award prevents the Agency from
applying the new interpretation of the qualification standards to
the grievants and compels the Agency to make counselor
positions available to the grievants and to pay them as
counselors, notwithstanding that they are not qualified for the
positions.

     VII. Decision

     For the reasons stated above, the award is deficient by
ruling that the grievants are qualified as counselors under
applicable regulations and qualification standards and by
directing that counselor positions be made available to them with
backpay, and the award must be modified. Accordingly, paragraphs
3 and 5, finding that the grievants are qualified as counselors,
are struck from the award. Paragraph 4 is modified to provide as
follows:

     4. The appropriate remedy regarding Grievant Markewitz is as
follows:

     a. DoDDS is directed to reissue to the grievant, David
Markewitz, his 1986 certificate and add categories 400 and 401
(Secondary and Elementary Counselor) to those areas on his
current certificate.

     Paragraph 6 is modified to provide as follows:

     6. The appropriate remedy regarding Grievant Owen is as
follows:

     a. DoDDS is directed to reissue to the grievant, Mary Louise
Owen, her 1986 certificate and add categories 400 and 401
(Secondary and Elementary Counselor) to those areas on