35:0478(57)AR - - Pennsylvania NG and ACT; Pennsylvania NG and ACT, Pennsylvania State Council - - 1990 FLRAdec AR - - v35 p478
[ v35 p478 ]
The decision of the Authority follows:
35 FLRA No. 57
FEDERAL LABOR RELATIONS AUTHORITY
PENNSYLVANIA NATIONAL GUARD
ASSOCIATION OF CIVILIAN TECHNICIANS
PENNSYLVANIA NATIONAL GUARD
ASSOCIATION OF CIVILIAN TECHNICIANS
PENNSYLVANIA STATE COUNCIL
April 6, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
These cases are before the Authority on exceptions to arbitration awards of Arbitrator Joseph M. D'Urso. The exceptions were 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. The Union filed an opposition to each of the exceptions. Because the parties in each case are the same and the Arbitrator's awards arise out of a single occurrence and involve the same issue, we have consolidated the cases for purposes of this decision.
In Case No. 0-AR-1576 (D'Urso Award I), Arbitrator D'Urso found that the Agency failed to comply with Arbitrator Francis X. Quinn's prior award (Quinn Award) requiring the Agency to post a vacant position in accordance with the procedures of the parties' collective bargaining agreement (agreement). Arbitrator D'Urso ordered the Agency to repost the position in accordance with the provisions of the agreement.
In Case No. 0-AR-1651 (D'Urso Award II), Arbitrator D'Urso found that the Agency violated the parties' agreement by its failure to justify to the Union and the other applicants the reasons why eligible individuals were not selected for the vacancy involved in D'Urso Award I, which was filled by Master Sergeant Robert Sparr, an active guard reservist (AGR). Arbitrator D'Urso ordered the Agency to rerun the selection procedure and to select one of the four civilian technician employees who previously had applied. He further ordered that, at the time the new selection was to be made, Sergeant Sparr be removed from the Aircraft Pneudraulic System Mechanic (Mechanic) position. The Arbitrator also ordered that if one of the civilian technician employees who originally applied for the position was selected, that individual was to receive backpay. If the four original applicants were no longer eligible for or interested in the position and another individual was selected, no backpay was to be awarded.
For the following reasons, we conclude that Arbitrator D'Urso's awards in both cases are contrary to the Agency's right under section 7106(a)(2)(C)(ii) of the Statute to make selections from any appropriate source. Therefore, the awards are deficient and must be set aside.
In mid-1986, an Aircraft Pneudraulic System Mechanic position became vacant. At the time the Agency's Personnel Office was preparing to announce this vacancy, it was advised by the Base Commander that action was required to correct an overgrade situation involving Master Sergeant Sparr, an AGR. According to Arbitrator Quinn, Sergeant Sparr was then occupying a position which authorized a military grade which was one grade below Sergeant Sparr's actual military grade. Enclosure 3 to Exceptions in Case No. 0-AR-1576 (Quinn Award) at 3. Arbitrator Quinn noted that because Congress had directed that such overgrade situations be resolved, the National Guard Bureau directed that a priority placement program be established whereby individuals such as Sparr who were overgraded would be offered the first position available at their grade for which they met the minimum qualifications. Id. Under the priority placement program, the Agency determined that Master Sergeant Sparr was qualified to fill the vacant Mechanic position. The Agency offered the Mechanic position to Sergeant Sparr and he accepted it. Id. at 4.
Four civilian employees filed a grievance, alleging that the Agency violated Air Force Regulations and the parties' agreement by failing to post the vacant Mechanic position. The grievance was submitted to Arbitrator Quinn, who determined that the Mechanic position traditionally had been held by a bargaining unit member and that the Agency had violated the agreement and Agency regulations by failing to post the position. Accordingly, Arbitrator Quinn directed that the position be posted in accordance with the procedures set forth in the agreement and Agency regulations. Quinn Award at 13.
In Association of Civilian Technicians and Pennsylvania National Guard, 29 FLRA 1318 (1987) (Pennsylvania National Guard), the Authority denied the Agency's exceptions to Arbitrator Quinn's award. The Authority rejected the Agency's contention that Arbitrator Quinn violated section 7106(a)(2)(A) of the Statute by determining the skills and qualifications necessary for the Mechanic position and by ruling on the adequacy of the skills and qualifications of the person selected for the position. The Authority found that Arbitrator Quinn's award contained no such qualification determination. The Authority also rejected the Agency's claims that Arbitrator Quinn's award conflicted with its right under section 7106(a)(1) of the Statute to determine its organization and its right under section 7106(a)(2)(C) of the Statute to select from any appropriate source. The Authority determined that Arbitrator Quinn "merely found that the parties have negotiated a merit promotion plan which encompasses the position in dispute and has appropriately directed the Agency to meet its negotiated obligations, including the posting of the vacancy." Id. at 1320.
The Authority concluded that the enforcement of the collective bargaining agreement preserved the Agency's discretion to assign employees and to assign work under section 7106(a)(2) of the Statute, to make selections under section 7106(a)(2)(C) of the Statute, and to determine its organization under section 7106(a)(1) of the Statute.
Consequently, the Authority denied the Agency's exceptions and Arbitrator Quinn's award became final and binding pursuant to section 7122 of the Statute.
III. Arbitrator D'Urso's Awards
A. D'Urso Award I
Subsequent to the Authority's decision in Pennsylvania National Guard, the Agency posted the Mechanic position. The Agency indicated that it would fill the vacancy with either a bargaining unit employee or an AGR status employee by including the following statement at the bottom of the Technician Vacancy Announcement: "Position also advertised under Active Guard/Reserve Announcement Number AGR 87-33." D'Urso Award I at 2. As a result of the inclusion of that statement on the posting, the Union filed a second grievance.
Arbitrator D'Urso concluded that because the Mechanic position was a bargaining unit position, it should be announced in accordance with Section 6.5 of the agreement, "Announcements and Area of Consideration" and that because the Agency failed to comply with this section of the agreement, the Agency had failed to comply with Arbitrator Quinn's award. D'Urso Award I at 10. Arbitrator D'Urso held that, pursuant to Arbitrator Quinn's award, the Agency was required to follow the procedures contained in Article VI and "offer" the position first to qualified persons in Category I, and if no one was found within that group, resort to Categories II, III and IV.(1) Id. Arbitrator D'Urso stated further that "if no one is found eligible among [these categories], then the Agency could offer the position to the AGR, but only after presenting reasons for its decision not to select any member of the Bargaining Unit." Id. Arbitrator D'Urso concluded that "[b]y following the steps set forth in Section 6.5b(1), the Agency would then be in conformity with [Arbitrator] Quinn's remedy." Id.
As his award, Arbitrator D'Urso upheld the grievance and directed the Agency to repost the Mechanic position "in accord with the provisions of the Collective Bargaining Agreement as interpreted by [his] opinion, especially Section 6.5b(1)." Id.
B. D'Urso Award II
While the Agency's exceptions to D'Urso Award I were pending before the Authority, the Agency's selection panel selected Sergeant Sparr to fill the Mechanic position. The Union filed a third grievance involving the filling of the Mechanic position.
In D'Urso Award II, Arbitrator D'Urso stated that the issues before him were as follows:
(1) Did the Pennsylvania Air National Guard properly follow the Contract and Technician Personnel Regulation 335 in the appointment and selection of Master Sergeant Robert Sparr for the position of Aircraft Pneudraulics Systems Mechanic?
(2) If not, what shall be the remedy?
D'Urso Award II at 2. The Agency also raised a question concerning the timeliness of the grievance.
In addressing the timeliness issue, Arbitrator D'Urso found that the grievance arose after the panel selected Master Sergeant Sparr for the Mechanic position. Arbitrator D'Urso concluded that because the grievance was filed within 10 days of ACT's knowledge of any possible violation, the grievance was appropriately before him.
As to the merits of the grievance, Arbitrator D'Urso found that the Agency had violated the agreement. Arbitrator D'Urso stated that the facts of this case did not alter his previous conclusion in D'Urso Award I that Article VI, Section 6.5b of the agreement "absolutely requires the Agency to consider, in a meaningful way, qualified persons from Categories I and II before considering other personnel who may be qualified." Id. at 7 (emphasis in original). Arbitrator D'Urso noted further that Master Sergeant Sparr did not fit into Category I or II.
Although Arbitrator D'Urso found that the record indicated that Master Sergeant Sparr probably was not qualified for the position when he was selected to fill it, he found it unnecessary to decide this question. Rather,
Arbitrator D'Urso found that the parties' agreement required the Agency to justify to the Union and to the employees the reasons why eligible individuals were not selected for an opening, and that the "evidence presented by the Agency in this case does not prove by any means that it ever met its obligation to 'include justification for non-selection' of all Category I or II individuals." Id. at 8. Arbitrator D'Urso noted that "[t]here was simply no credible testimony offered" which convinced him that "any responsible selecting official or officials . . . could have reasonably selected Sergeant Sparr over the other grievants who seem to possess far more experience and knowledge in this job area." Id.
Arbitrator D'Urso concluded that "[b]ecause there was no justification made for the non-selection of the bargaining unit applicants, I must find that the placement of Sergeant Sparr in this position violated the Agency's obligations that were assumed when it entered into the [parties' collective bargaining agreement]." Id. at 10. Arbitrator D'Urso noted that in view of his finding that the Agency violated the agreement, it was unnecessary for him to reach the question of whether the Agency complied with Technician Personnel Regulation (TPR) 335.(2) Arbitrator D'Urso further found that "at least after January 21, 1988, when Sergeant Sparr was 'reselected' for the position, the evidence shows that he was improperly placed" in the Mechanic position and that "one of the four other applicants would have been selected if Article VI had been followed." Id. at 12. However, Arbitrator D'Urso concluded that he could not determine which of the four other applicants would have been chosen to receive the promotion.
As his award, Arbitrator D'Urso ordered the Agency to rerun the selection action and to select one of the four civilian technicians who originally had applied for the Mechanic position. He further ordered that, at the time the new selection is made, Sergeant Sparr be removed from the Mechanic position. Arbitrator D'Urso also ordered that if one of the original applicants was selected for the Mechanic position, backpay should be awarded to that individual from January 21, 1988. Arbitrator D'Urso stated further, however, that if the four original applicants were no longer eligible for or interested in the position and another individual was selected, backpay would not be appropriate. Id. at 13.
IV. Positions of the Parties
A. D'Urso Award I
1. The Agency's Exceptions
The Agency contends that D'Urso Award I is deficient because "it effectively prohibits the filling of a position with AGR personnel." Exceptions at 1. The Agency argues that when military personnel are selected to fill a full-time position, neither the Statute nor the collective bargaining agreement applies. The Agency further contends that D'Urso Award I should be set aside because the award "places a more stringent requirement on management than is contained either in the negotiated agreement or the Civil Service Reform Act and places an interpretation on [the Statute] that is based on a non-fact [sic]." Id. The Agency claims that under 5 U.S.C. º 7106, management has the "sole and unlimited right to non-select [sic] an individual for a position" and the "unequivocal right to select or nonselect from a properly prepared list of applicants, regardless of their status." Id.
2. The Union's Opposition
The Union contends that D'Urso Award I is consistent with law and should be sustained. The Union claims that the Agency's argument, that the award is illegal because it prevents the Agency from selecting the individual it wants to fill the position, constitutes an attempt by the Agency to relitigate the merits of this dispute. Further, the Union contends that the arguments raised by the Agency in its exceptions were addressed and rejected by the Authority in Pennsylvania National Guard.
B. D'Urso Award II
1. The Agency's Exceptions
In its first exception, the Agency alleges that D'Urso Award II violates the Agency's right under section 7106(a)(2)(C) of the Statute to select from any appropriate source. The Agency contends that when it chooses to fill a job with an AGR, the negotiated agreement does not apply because 5 U.S.C. º 7103(a)(2)(B)(ii) excludes members of the uniformed services from coverage by the Statute. Further, the Agency argues that even if it violated the agreement, it has the right under section 7106(a)(2)(C) of the Statute to fill a position as it deems fit, such as by selecting a military member, subcontracting the duties of the position, or detailing other people to the position.
In its second and fifth exceptions, the Agency argues that, by requiring the selection of one of the four grievants, D'Urso Award II precludes management from filling the position with a full-time military member (AGR) and, thereby, violates the Agency's right to select. The Agency also argues that Arbitrator D'Urso did not reconstruct the selection action and demonstrate that, in the absence of any errors or wrongdoing by the Agency, one of the four grievants would have been selected.
In its third exception, the Agency alleges that by ruling on the adequacy of the skills and qualifications possessed by the person selected by management to fill the position, D'Urso Award II violates the Agency's right under section 7106(a)(2)(A) to assign employees. According to the Agency, that right includes the right to determine the particular qualifications and skills needed to perform the duties of a position and to determine whether a particular employee possesses those qualifications and skills.
In its fourth exception, the Agency argues that D'Urso Award II violates its right to assign employees by directing that Master Sergeant Sparr be removed from the Mechanic position without a showing that he could not have been selected "absent any violation of the agreement or regulation." Exceptions at 7. The Agency reiterates the argument made in exception three that it has the right to determine the qualifications and skills required for a position and to determine whether the individual selected has those skills and qualifications. The Agency claims that by substituting his judgment for that of the Agency as to whether Sergeant Sparr possessed the required skills and qualifications, Arbitrator D'Urso's award interferes with the Agency's right to assign employees.
In its sixth exception, the Agency argues that D'Urso Award II "contains no analysis to show that a particular grievant would have been selected had there been no violation of the [agreement]." Id. at 9. The Agency contends, therefore, that the portion of the D'Urso Award II directing a retroactive promotion with backpay, if one of the grievants is selected, violates the Back Pay Act.
2. The Union's Opposition
The Union contends that there is no merit in the Agency's argument that the agreement does not apply when management fills a position with an AGR. The Union contends that there is nothing in the Statute which would allow the Agency to violate the collective bargaining agreement "without meaningful recourse to the Union." Opposition at 2.
The Union also contends that D'Urso Award II should be modified and contends that the award need not be limited to the consideration of only the four employees who previously applied for the Mechanic position. The Union argues that Arbitrator D'Urso's award should be modified to require that the selection process be rerun in accordance with the terms of the agreement and relevant laws and regulations. The Union asserts that, as so modified, the award would permit individuals, other than the four bargaining unit employees who originally applied, to participate in the selection process.
The Union argues that Arbitrator D'Urso did not improperly substitute his judgment for management's with respect to the qualifications needed to fill the Mechanic position. The Union notes that Arbitrator D'Urso expressly declined to address the issue of the qualifications and skills required for an employee to fill the Mechanic position. The Union also alleges that there is no merit to the Agency's argument that full-time military members would not necessarily need the same qualifications and skills which are required of bargaining unit personnel to fill this position.
Finally, the Union contends that Arbitrator D'Urso reconstructed the events that would have occurred if a proper selection procedure had been conducted. Further, the Union asserts that Arbitrator D'Urso concluded that the four grievants were well-qualified for the position and that, by his own testimony, Sergeant Sparr was not qualified. The Union notes that Arbitrator D'Urso found that if the provisions of the agreement had been followed, one of the four grievants would have been selected. The Union contends, therefore, that an award of backpay is justified under the Back Pay Act.
We conclude that D'Urso Awards I and II are contrary to the Agency's right under section 7106(a)(2)(C)(ii) of the Statute to fill vacancies from any appropriate source and, therefore, must be set aside.
With respect to filling positions, management has the right under section 7106(a)(2)(C) of the Statute to make the actual selection or appointment. See Department of Defense, Dependents Schools--Pacific Region and Overseas Education Association, 31 FLRA 305, 312 (1988). Moreover, section 7106(a)(2)(C) provides that management has the right when filling positions to make a selection from a group of properly ranked and certified candidates or from any other appropriate source. See Local R-1-185, National Association of Government Employees and The Adjutant General of the State of Connecticut, 25 FLRA 509 (1987) (Adjutant General) and cases cited in that decision. A requirement limiting an agency's ability to select from any other appropriate source is contrary to section 7106(a)(2)(C)(ii) of the Statute. See, for example, Id.
On the other hand, a provision which merely obligates an agency to use the competitive procedures in the parties' collective bargaining agreement before filling a position through whatever means it chooses does not conflict with management's right to make selections under section 7106(a)(2)(C) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO and Equal Employment Opportunity Commission, 15 FLRA 283 (1984). Thus, a requirement that an agency post a vacancy announcement before filling a position within a bargaining unit does not conflict with management's right to fill positions under section 7106(a)(2)(C) of the Statute. See Pennsylvania National Guard; Federal Union of Scientists and Engineers, National Association of Government Employees and Naval Underwater Systems Center Newport, Rhode Island, 23 FLRA 360, 363-64 (1986). Similarly, a requirement that an agency provide reasons for not selecting an employee does not limit management's rights. Such a requirement merely establishes a procedure for the agency to follow in the exercise of its rights section 7106(a)(2)(C) and, therefore, is negotiable under 7106(b)(2) of the Statute. See AFSCME, Local 2027 and ACTION, 27 FLRA 191 (1987) (Proposal 1) (ACTION).
Finally, an arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement so as to deny the authority of an agency to exercise its statutory rights under section 7106(a) of the Statute. See Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 32 FLRA 997 (1988) (Veterans Administration Medical Center, Houston, Texas). In addition, an arbitrator may not order an agency to select a grievant for a position unless the arbitrator determines that the grievant was directly affected by an unjustified or unwarranted personnel action and, but for the unwarranted action, the grievant would have been selected. Id. See also Veterans Administration Medical Center and Regional Office Center, San Juan, Puerto Rico and American Federation of Government Employees, Local Union No. 2408, 21 FLRA 418 (1986). A failure to provide reasons for not selecting a bargaining unit employee does not, by itself, "constitute such an improper action . . . so as to permit an arbitrator to order a grievant selected" for a position. ACTION, 27 FLRA at 196.
A. D'Urso Award I
In D'Urso Award I Arbitrator D'Urso stated that in order to comply with Arbitrator Quinn's award, which required that the Mechanic position be posted in compliance with the parties' agreement, the Agency had to repost the Mechanic position. In our view, and consistent with the Authority's decision in Pennsylvania National Guard, such a requirement would not interfere with the Agency's right to select under section 7106(a)(2)(C) of the Statute.
We find, however, that in D'Urso Award I, Arbitrator D'Urso did not merely require the Agency to repost the Mechanic position. Rather, it is clear that Arbitrator D'Urso interpreted Arbitrator Quinn's award in a manner which precludes the Agency from exercising its right under section 7106(a)(2)(C) to fill the Mechanic position from any appropriate source. In D'Urso Award I, Arbitrator D'Urso stated that in order to satisfy Arbitrator Quinn's award, the Agency had to first "offer the position to those persons who would qualify" under Categories I, II, III and IV of Section 6.5b(1). D'Urso Award I at 10 (emphasis added). Further, according to Arbitrator D'Urso, "if no one is found eligible among that grouping, then the Agency could offer the position to the AGR, but only after presenting reasons for its decision not to select any member of the Bargaining Unit." Id.
Unlike Arbitrator Quinn's award, which required the Agency only to post the Mechanic position in accordance with the parties' collective bargaining agreement, D'Urso Award I requires the Agency to select individuals in certain categories and precludes the Agency from using another appropriate source to fill the Mechanic position, including reassignment of an AGR, if: (1) there is an eligible employee in Category I, II, III or IV; or (2