33:0397(51)AR - - Marine Corps Base, Civilian Personnel Division, Camp Lejeune, NC and AFGE Local 2065 - - 1988 FLRAdec AR - - v33 p397



[ v33 p397 ]
33:0397(51)AR
The decision of the Authority follows:


33 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

MARINE CORPS BASE, CIVILIAN PERSONNEL DIVISION

CAMP LEJEUNE, NORTH CAROLINA

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL UNION 2065

0-AR-1558

DECISION

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Felix A. Nigro. The grievant filed a grievance alleging that he was denied a promotion because of nepotism. The Arbitrator denied the grievance.

The Union 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. The Activity filed an opposition to the exceptions.

We conclude that the Union has not established that the award is deficient because the award is contrary to law or regulation, to the collective bargaining agreement, or to the evidence presented.

II. Background and Arbitrator's Award

The grievant is a Sewage Disposal Plant Operator at the Activity. In 1982, he applied for a position as a Sewage Disposal Plant Operator Leader, WL-9, in response to vacancy announcement #171-82. The candidates were rated on their qualifications and a list of Highly Qualified candidates was referred to a ranking panel. The Highly Qualified candidates were interviewed by the ranking panel, who referred the highest ranking candidates to the selecting official. The grievant was ranked ninth. The top six highest ranking candidates were selected for the six available positions. After obtaining evidence which he believed supported his charge of nepotism, the grievant filed a grievance on August 28, 1987, alleging that his failure to be selected for the Leader position was the result of nepotism, a violation of Federal statutes at 5 U.S.C. § 3110. The grievance indicated that one of the selectees was a first cousin of M.D. Davis. (The record is unclear whether Davis acted as a member of the ranking panel, as the selecting official, or in both capacities. Nevertheless, the issue before the Arbitrator and before us is whether Davis' relationship, if any, to one of the selectees, violated 5 U.S.C. § 3110.) The grievance was not resolved and was submitted to arbitration.

The Arbitrator denied the grievance. The Arbitrator concluded that the grievant sincerely believed that he was discriminated against because of an affinity relationship between Davis and one of the selectees. The Arbitrator further concluded, however, that 5 U.S.C. § 3110 did not prevent a public official from being involved in a selection process which leads to the promotion of a cousin-in-law, which is how the arbitrator defined the relationship between Davis and the selectee in this case. The Arbitrator also denied the Activity's claim that the grievance was untimely because the Activity had processed the grievance through all the earlier steps of the grievance procedure "without making clear and timely objection" to the timeliness of the grievance. Arbitrator's Decision at 5, citing Elkouri and Elkouri, How Arbitration Works (3d ed. 1973), at 150. The Arbitrator further rejected the Activity's contention that the substance of the grievance had been previously resolved by an EEO complaint filed by the grievant because the Arbitrator found that the EEO complaint was not resolved on the basis of the nepotism issue which is the basis of the grievance.

III. Exceptions

The Union contends that the Arbitrator's decision is contrary to 5 U.S.C. § 3110, that the award does not draw its essence from the collective bargaining agreement, that the award is based on a non-fact in finding that first cousins by affinity is inapplicable to the anti-nepotism statute, and that the Arbitrator failed to consider pertinent and material evidence.

IV. Opposition</