34:0681(117)AR - - Commonwealth of Pennsylvania, Department of Military Affairs and Pennsylvania State Council, ACT - - 1990 FLRAdec AR - - v34 p681
[ v34 p681 ]
The decision of the Authority follows:
34 FLRA No. 117
FEDERAL LABOR RELATIONS AUTHORITY
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF MILITARY AFFAIRS
PENNSYLVANIA STATE COUNCIL
ASSOCIATION OF CIVILIAN
February 1, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles J. Coleman. The Arbitrator denied a grievance claiming that the Commonwealth of Pennsylvania, Department of Military Affairs (the Agency) violated its own procedures in selecting an applicant other than the grievant for a vacant position.
Exceptions to the award were filed by the Pennsylvania State Council, Association of Civilian Technicians (ACT or 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. The Agency filed an opposition to the exceptions.
For the reasons discussed below, we conclude that ACT has not established that the Arbitrator's award is contrary to law, rule, or regulation or is deficient on other grounds similar to those applied by the Federal courts in private sector labor arbitration cases. Accordingly, we deny ACT's exceptions.
II. Background and Arbitrator's Award
In 1986 the grievant applied for a flight engineer position and was not selected. The grievant filed a grievance over his nonselection and the grievance proceeded to arbitration before Arbitrator Mullaly. Arbitrator Mullaly's award was the subject of the Authority's decision in Association of Civilian Technicians and Pennsylvania National Guard, 30 FLRA 779 (1987) (Pennsylvania National Guard). In that case, the Authority found that the Arbitrator Mullaly's award directing the grievant to be selected for a flight engineer position was contrary to section 7106(a)(2)(C) of the Statute. The award was deficient because Arbitrator Mullaly did not find that the grievant would have been selected for the position if the selecting official had not made errors in the selection process. The Authority noted that Arbitrator Mullaly found only that the grievant should have been promoted.
The Authority also noted that Arbitrator Mullaly found that procedural errors had been committed in the selection process. There was no evidence, however, that these errors affected the Agency's decision not to select the grievant. In turning to the appropriate remedy for these procedural violations, the Authority found that there was no indication that the Agency intended to fill the flight engineer position. The Authority concluded, therefore, that requiring the Agency to rerun the selection action in conformance with the parties' agreement would be an ineffective remedy and denied the Union's request to require the selection action to be rerun. Instead, the Authority stated that the purposes of the Statute would be effectuated by requiring the Agency to give the grievant priority consideration in the selection process should it decide to fill a flight engineer position in the future. Thus, the Authority modified Arbitrator Mullaly's award to require the Agency to provide the grievant with priority consideration for the next available flight engineer position for which he is qualified and for which he possesses the requisite military compatibility.
In March 1987, while the grievant's 1986 nonselection grievance was pending before Arbitrator Mullaly, the Agency readvertised the flight engineer position. The grievant, along with three other applicants, applied for the position. All four were certified as "qualified" by the Agency. The grievant was not selected for the position and the position was filled with another individual. The grievant then grieved his nonselection for the position.
This grievance led to Arbitrator Coleman's award which is at issue in this case.
ACT argued before Arbitrator Coleman that the Agency violated its own procedures in rejecting the grievant and selecting another employee. ACT claimed that the March 13, 1987, announcement for the flight engineer position required a candidate to possess 2 years' experience working on one of two specified types of rotary wing aircraft. ACT alleged that the announcement did not mention comparable experience on other types of rotary wing aircraft. ACT asserted that the other candidates did not have experience on either of the two types of rotary wing aircraft specified in the announcement. Consequently, ACT argued that the Agency erroneously qualified those candidates, ignored the established job requirements and made an unfair, inequitable selection decision. In addition, ACT claimed that the Agency ignored the Authority's decision in Pennsylvania National Guard by not giving the grievant priority consideration.
Arbitrator Coleman found that the "Technician Vacancy Announcement of the Flight Engineer position that was posted around March 13, 1987, was not violated when candidates who had not worked on the CH47 or the CH54 [aircraft] were referred for selection interview." Award at 12. Accordingly, Arbitrator Coleman denied the grievance.
Arbitrator Coleman noted that it is a long-standing, well-documented, commonly accepted selection practice "to infer that an individual with a successful record in certain operations can, after becoming familiar with a new job, perform the same kinds of operations successfully on another (e.g., a person could demonstrate a skill in performing preflight servicing on one aircraft by performing it successfully on another)." Award at 10. Thus, Arbitrator Coleman concluded that "[m]anagement's expansive construct of the Vacancy Announcement is justified and that the staffing specialist was acting properly when he considered experience gained on aircraft other than the CH47/CH54 as relevant to qualifying for the disputed flight engineer position." Id. at 11.
In addition, Arbitrator Coleman concluded that the Authority's decision in Pennsylvania National Guard did not require him to award the grievant the flight engineer position which is the subject of this grievance. Rather, Arbitrator Coleman found that the Authority specifically rejected awarding the flight engineer position to the grievant. Arbitrator Coleman further found that the Authority's decision required that the grievant be given priority consideration for the next position, and not the position at issue in the arbitration proceeding before him. Arbitrator Coleman noted that the flight engineer position involved in the dispute before him had already been filled before the Authority issued its decision in Pennsylvania National Guard.
Arbitrator Coleman concluded that the only way that he could have awarded the position to the grievant was on the basis of improprieties committed by management in selecting another candidate for the job and he found that, based on his interpretation of the Technician Vacancy Announcement, no such improprieties were committed. Consequently, Arbitrator Coleman denied the grievance.
ACT raised two exceptions to Arbitrator Coleman's award.
First, ACT contends that Arbitrator Coleman incorrectly interpreted and applied the Authority's decision in Pennsylvania National Guard. ACT claims that Arbitrator Coleman erred in finding that the Authority's decision only required the Agency to give the grievant priority consideration for the next position and not for the position which was the subject of this arbitration.
Second, ACT contends that Arbitrator Coleman erroneously interpreted the language of the Technician Vacancy Announcement. ACT contends that the Announcement required specific experience on the CH47/CH54 aircraft and that the announcement did not mention comparable experience on other aircraft as concluded by Arbitrator Coleman. Therefore, ACT concludes that Arbitrator Coleman erred when he found that the other three applicants properly were found to be qualified for the position because of comparable experience on other aircraft.
ACT argues that its exceptions should be sustained and Arbitrator Coleman's award vacated. ACT concludes that because the grievant possessed the proper qualifications for the position, and no other job applicant was qualified for the position, the "but-for causation has been shown and an appropriate remedy should be that [the grievant] be awarded the position in question." Exceptions at 6-7.
The Agency asserts that ACT's exceptions merely express disagreement with the judgment of Arbitrator Coleman and are not grounds for overturning the Arbitrator's decision. Therefore, the Agency requests that the Authority allow the award to stand in its entirety.
V. Analysis and Conclusion
We conclude that ACT has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, ACT has not established that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor-management relations cases. Accordingly, ACT's exceptions must be denied.
A. First Exception
ACT contends that Arbitrator Coleman erred in finding that the Authority's decision in Pennsylvania National Guard did not require the Agency to give the grievant priority consideration for the flight engineer position involved in this case.
We find, in agreement with Arbitrator Coleman, that the Agency was not obligated by Pennsylvania National Guard to grant the grievant priority consideration for the flight engineer position at issue in this case. At no time during the Authority's consideration of Arbitrator Mullaly's award in Pennsylvania National Guard was the Authority informed that the flight engineer position in dispute in that case had been reposted and that the grievant had reapplied and had not been selected. Such facts clearly would have been material to the fashioning of an effective remedy in that case. Consequently, as the flight engineer position in dispute in Pennsylvania National Guard had been filled before the Authority modified the arbitrator's award to require the Agency to grant the grievant priority consideration for the next available flight engineer position, we hold that the Agency was not required to grant the grievant priority consideration for the flight engineer position in dispute before Arbitrator Coleman. Therefore, we reject ACT's first exception.
We note, however, that although the Agency was not obligated to grant the grievant priority consideration for the flight engineer position in this case, the Agency was obligated to comply with Arbitrator Mullaly's award as modified by the Authority's decision in Pennsylvania National Guard by granting priority consideration to the grievant in the filling of the next flight engineer position which became available after that decision, and remains obligated if it has not yet complied.
B. Second Exception
In its second exception, ACT contends that Arbitrator Coleman misinterpreted the Technician Vacancy Announcement by find