36:0428(52)AR - - Smithsonian Institution, National Gallery of Art, Washington, DC and AFGE Local 1831 - - 1990 FLRAdec AR - - v36 p428
[ v36 p428 ]
The decision of the Authority follows:
36 FLRA No. 52
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL GALLERY OF ART
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 24, 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 Millard Cass filed by the Union pursuant to 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 did not file an opposition to the Union's exceptions.
A security guard hired under a veterans readjustment appointment (VRA) filed a grievance over the Agency's failure to promote him to grade GS-4 after 6 months of employment at the Agency.(1) The Arbitrator found, among other things, that the grievant did not meet the experience requirement for a GS-4 guard position and that the grievant did not meet the requirement of satisfactory service contained in the parties' collective bargaining agreement and in a resolution adopted by the parties at a labor-management meeting on November 6, 1980. The Arbitrator denied the grievance.
The Union contends that the award is contrary to laws and regulations governing veterans preference and veterans readjustment appointment authority under the Veterans Readjustment Assistance Act of 1974 (38 U.S.C. § 2014), as amended by Pub. L. 101-237, "Veterans' Benefits Amendments of 1989." The Union also contends, among other things, that the award is contrary to the parties' collective bargaining agreement. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was hired by the Agency as a GS-3 security guard under VRA provisions on January 22, 1984. Under the VRA provisions then in effect, the Agency waived the 1 year of experience required for the GS-3 position on the basis of the grievant's military service. On January 22, 1986, the grievant was converted from the excepted service to a career-conditional appointment. He was promoted to GS-4 on August 30, 1987.
Subsequently, the grievant filed a grievance in which he alleged that he should have been promoted to the GS-4 level 6 months after his initial appointment in accordance with Article XVII, section 5 of the parties' collective bargaining agreement, which provides:
New guards are to be promoted from grade 3 to grade 4 after 6 months of satisfactory service with the recommendation of the supervisor. Negative determinations must be explained to the employee.
Award at 2.
The grievance was submitted to arbitration on the issue of whether the grievant "was entitled to be promoted from Security Guard, GS-3 to GS-4 after six months employment at the [Agency]." Id.
The Union maintained before the Arbitrator that the grievant was entitled to have been promoted 6 months after he was appointed to the GS-3 position and that the grievant met the qualification requirement of 1 full year of actual guard experience for the GS-4 position because of his military experience. The grievant testified that he had performed guard duty during his 3 years of duty in the Army and stated that he had not included that information on his Standard Form 171 (SF-171) because he "assumed that it was common knowledge that [guard duty] was part of being a soldier; every soldier did some guard duty." Id. at 14-15. The Union pointed out that other employees in similar situations had been promoted to GS-4 after 6 months.
The Agency maintained that the grievant was given the appropriate credit for his military experience when he was appointed to the GS-3 position under the VRA regulations contained in 5 C.F.R. § 307.103 (1984), which provided that "[o]n the basis of military and civilian experience, any veteran eligible under 5 CFR 307.102 is deemed to meet the qualification standards for positions at GS-3 and below and equivalent levels[.]" Id. at 18.(2) However, the Agency asserted that the qualification standards for GS-4 in effect at the time the grievant was employed required 2 years of acceptable guard experience, which could include military service involving the performance of guard duties. Therefore, according to the Agency, the grievant needed an additional year of experience in order to qualify. The Agency pointed out that the grievant did not list any guard experience on his SF-171.
The guard captain who was the grievant's supervisor testified that the grievant's disciplinary record prevented him from being promoted after he had acquired the necessary experience for promotion to GS-4. The captain testified that a number of actions including a leave restriction and suspension had been taken against the grievant because of absence-related offenses during the period 1984 through 1986 and that the grievant "never had a six month period without some performance problem until December 1986 to June 1987." Id. at 11-12.
In his findings of fact and conclusions, the Arbitrator pointed out that the grievant had received credit for his military service by being deemed qualified for appointment to a GS-3 position. The Arbitrator noted that the Office of Personnel Management (OPM) qualification requirements for a GS-4 guard position in effect when the grievant was hired and when he was eventually promoted in 1987 specified 2 years of experience, which could include military experience involving actual guard duties. The Arbitrator held that the grievant could not be given an additional year of experience for his military service because he had listed no actual guard experience on his SF-171.
Further, the Arbitrator noted that the parties' collective bargaining agreement conditioned promotion from GS-3 to GS-4 on "satisfactory service with the recommendation of the supervisor." Id. at 21. The Arbitrator held that the grievant had been disciplined for unsatisfactory service, including "an explicit and detailed leave restriction" which "was a form of discipline." Id. at 22. The Arbitrator stated that the Agency "had the right to refuse to promote an employee who had the experience required for the next higher classification if his service was not satisfactory[,]" and held that "[f]or the Agency to condition [the grievant's] promotion on improved dependability for at least six months was not unreasonable." Id. The Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to laws and regulations governing veterans preference and veterans readjustment reappointments. The Union asserts that the grievant was wrongly denied a promotion from GS-3 to GS-4 because the Agency failed to give the grievant full credit for his military service. The Union contends that the grievant "had more than the required experience necessary to qualify for a GS-4 guard position [and his] experience is clearly documented on his SF-171, which reveals that [the grievant] served in the Armed Service from 11/18/74 to 11/17/77." Exceptions at 2.
The Union also contends that the award is contrary to (1) the Agency's merit promotion plan, (2) Article XVII of the parties' collective bargaining agreement, and (3) the labor-management resolution dated November 6, 1980, in which the parties agreed on procedures concerning the promotion of new guards from GS-3 to GS-4 after 6 months of satisfactory service. The Union argues that the Agency improperly applied entry level requirements to the grievant twice for a promotion to GS-4 and contends that once the grievant was appointed, "the entry level requirement should not have been reapplied to [the grievant] to determine whether or not he warranted a career ladder promotion, because career ladder promotions should only be based on merits and performance." Id. The Union maintains that the grievant possessed the 2 years of acceptable experience required by OPM qualification standards for GS-4 guard positions.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The parties' collective bargaining agreement and the labor-management resolution of November 6, 1980 provide that guards can be promoted from GS-3 to GS-4 after 6 months of satisfactory service. The Arbitrator found on the basis of the record, including the testimony of the grievant's supervisor, that the grievant did not meet the requirement of satisfactory service in order to be promoted until the 6 months prior to August 1987, when he was promoted to GS-4. The Arbitrator stated in that regard:
The [Agency] had the right to refuse to promote an employee who had the experience for the next higher classification if his service was not satisfactory. It does not necessitate a detailed listing of [the grievant's] shortcomings to reach the conclusion that he lacked dependability prior to December 1986.
Award at 22. Therefore, regardless of whether, as asserted by the Union, the grievant possessed the required experience for promotion to GS-4 at the end of 6 months after being appointed to the GS-3 position, the Arbitrator found that the grievant did not meet the satisfactory service requirement imposed by the collective bargaining agreement and the labor-management resolution and was not entitled to an earlier promotion to GS-4.
In contending that the grievant should have been promoted earlier, the Union is only disagreeing with the Arbitrator's interpretation of the collective bargaining agreement and the labor-management resolution and with his conclusions, based on the testimony of the grievant's supervisor, that the grievant had not met the requirement of satisfactory service and thus was not entitled to promotion. Such disagreement does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1114 (1990). Compare American Federation of Government Employees, Local 17, AFL-CIO and Veterans Administration Central Office, 24 FLRA 424 (1986) (Authority denied agency exceptions to award which ordered career ladder promotion to grievant based on finding that supervisor's testimony established satisfactory performance of requirements for promotion).
Accordingly, we conclude that the Arbitrator did not err in finding that the Agency's failure to promote the grievant to GS-4 until August 1987 did not violate the parties' collective bargaining agreement or the labor-management resolution. Consequently, as the grievant would not have been promoted in any event, it is not necessary to determine whether the grievant was improperly denied credit for his military experience toward meeting the qualification requirements for a GS-4 position.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. A veterans readjustment appointment is an excepted appointment of certain veterans of the Vietnam era and veterans of the post-Vietnam era to a position otherwise in the competitive service made under the authority of 38 U.S.C. § 2014, as amended. Interim Rule amending Veterans Readjustment Appointment regulations, 55 Fed. Reg. 13499, 13500 (1990) (to be codified at 5 C.F.R. § 307.101(e)).
2. 5 C.F.R. § 307.103 has since been amended to provide as follows:
§ 307.103 Appointing authority
An agency may appoint any veteran who meets the basic veterans adjustment eligibility requirements provided by law[.]