39:1225(105)AR - - DOD, DE NG, Wilmington, DE and ACT - - 1991 FLRAdec AR - - v39 p1225



[ v39 p1225 ]
39:1225(105)AR
The decision of the Authority follows:


39 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DELAWARE NATIONAL GUARD

WILMINGTON, DELAWARE

(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

(Union)

0-AR-1895

DECISION

March 15, 1991

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 Francis X. Quinn 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 the Agency's exceptions.

The Union filed a grievance claiming that the Agency violated the parties' collective bargaining agreement when it published and distributed an Active Guard/Reserve (AGR) vacancy announcement simultaneously with a civilian technician vacancy announcement for the position of Fabric Worker WG-3105-09. The Arbitrator sustained the grievance and ordered the Agency to honor the terms of the parties' collective bargaining agreement by: (1) publishing only civilian job announcements for each vacancy; (2) complying with the negotiated areas of consideration described in the parties' agreement; (3) rescinding all promotion selections made as a result of improperly published job vacancy announcements; (4) reannouncing each job vacancy correctly; and (5) making selections properly in accordance with the provisions of the parties' agreement. Award at 11-12. The Arbitrator also retained jurisdiction over implementation of the award.

For the following reasons, we conclude that the portion of the Arbitrator's award directing the Agency to rescind all promotion actions is deficient. Accordingly, we will modify that portion of the award. We deny the Agency's exceptions as to the balance of the award.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the Agency violated Article XXI, Section 10 of the parties' collective bargaining agreement by publishing and distributing an AGR vacancy announcement simultaneously with a civilian technician vacancy announcement for the same position. According to the Arbitrator, the result of the Agency's simultaneous publication and distribution of an AGR and civilian technician vacancy announcements was that AGR personnel, who are not members of the bargaining unit, were provided equal standing with bargaining unit members for immediate consideration and possible selection for the vacancy.

In its grievance, the Union also claimed that the Agency violated Article XXI, Section 5 of the parties' agreement by failing to require the same minimum job qualifications and experience requirements for AGR personnel as required for civilian employees in the bargaining unit. Finally, the Union amended its grievance to include a number of additional alleged violations claiming that the violations were ongoing and cumulative because the Agency continued to unilaterally publish AGR and civilian technician job announcements simultaneously.

The Arbitrator stated the issues as follows:

1. Was the Agency obligated by Contract and Federal Labor Law to notify and discuss with the Union, the initiation of AGR job vacancy announcements?

2. Does the Agency violate the Collective Bargaining Agreement by simultaneously publishing civilian and AGR job vacancy announcements?

Award at 4.

Before the Arbitrator, the Agency contended that Air National Guard Regulation (ANGR) 35-03 mandated the simultaneous publication of a separate job vacancy announcement for AGR personnel in order to give AGR personnel equal treatment with bargaining unit members in consideration for existing vacancies and in order to ensure that the upward mobility of AGR personnel was not blocked.

The Arbitrator rejected the Agency's argument. According to the Arbitrator, "[t]he record indicates that the Agency has turned its back on the Collective Bargaining Agreement" by attempting to "implement under the umbrella of a military regulation[]" a matter it could not expect to accomplish through negotiations. Id. at 8. The Arbitrator further found that although the Agency contended that it must follow the mandate of ANGR 35-03, the Agency failed to "adequately justify its implementation only in the Air Guard program." Id.

The Arbitrator noted that under the Statute and Authority precedent, rules and regulations issued after a collective bargaining agreement becomes effective, except for Government-wide rules and regulations concerning prohibited personnel practices, cannot nullify or supersede the terms of that agreement. The Arbitrator also noted that the Agency presented no testimony or evidence to rebut the Union's contention that, contrary to the procedures contained in the parties' agreement, Agency officials were considering AGR applicants simultaneously with bargaining unit applicants. Further, the Arbitrator found that as three consecutive collective bargaining agreements addressed technician vacancy announcements and established specific procedures for considering nonbargaining unit applicants, "[t]here is a ripened past practice affecting conditions of employment" of bargaining unit members which "cannot be unilaterally changed." Id. at 10.

According to the Arbitrator, the Agency was attempting to "use a military regulation with no previously determined compelling need or status as a governmentwide rule, to alter the intent of the Collective Bargaining Agreement and to circumvent federal labor law." Id. at 10-11. The Arbitrator found that nothing in ANGR 35-03 suggested "disregard for existing lawful agreements or, as in this case, the complete abandonment for a history of three separate contracts addressing competitive area language." Id. at 11.

Consequently, the Arbitrator concluded that the issuance of dual announcements violated "the Merit Promotion and Placement article in the Contract" and that the unilateral issuance of dual announcements "abrogated the bargaining rights of the exclusive representative." Id. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to:

honor the terms of the Agreement by publishing only civilian job announcements for every job vacancy; comport with the negotiated areas of consideration described in the Contract; rescind all promotion selections made as a result of improperly published job vacancy announcements; and order each job reannounced correctly and selections properly made in accordance with the provisions of the Contract.

Id. at 11-12. The Arbitrator also retained jurisdiction over implementation of the award.

III. Agency's Exceptions

The Agency contends that the award violates law and existing regulations.

First, the Agency contends that it "has the unilateral right to issue job vacancy announcements to recruit AGR (military personnel) for vacancies and to select military personnel for vacancies under" section 7106(a)(2)(C)(ii) of the Statute. Exceptions at 2 (emphasis in original). In support, the Agency relies on Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 857 F.2d 819 (D.C. Cir. 1988) (Department of the Treasury). Further, the Agency notes that the parties' collective bargaining agreement does not apply to military personnel, who are excluded from coverage of the Statute by section 7103(a)(2)(B)(ii) of the Statute. The Agency asserts, therefore, that "[i]t is perfectly proper that AGR announcements be issued concurrently with technician announcements as required by ANGR 35-03 as such a procedure neither violates law nor the collective bargaining agreement." Exceptions at 2. The Agency concludes that "the arbitrator's decision that management violated the contract and abrogated the bargaining rights of the exclusive representative must be reversed since military matters are neither negotiated under the law nor does the arbitrator have authority to rule on them." Id.

Second, the Agency claims that the Arbitrator's award "is in direct conflict with ANGR 35-03[.]" Id. According to the Agency, ANGR 35-03 requires that vacant jobs be advertised to both technicians and AGR personnel and that both groups be considered concurrently. The Agency argues that as the Arbitrator's award directs that only civilian job announcements be issued, the award is inconsistent with ANGR 35-03. The Agency asserts that section 7122 of the Statute requires arbitration awards to be consistent with all applicable laws, rules and regulations. Consequently, the Agency contends that the award is deficient under section 7122 of the Statute.

Third, the Agency argues that, insofar as the award requires the Agency to rescind all promotion selections made as a result of improperly published vacancy announcements, the award violates its right to select under section 7106(a)(2)(C) of the Statute. In this regard, the Agency claims that the Arbitrator's award lacks any findings or conclusions that the incumbents of the positions involved were unqualified for their positions or could not have been selected. The Agency contends that Authority precedent establishes that in order to direct the promotion of a grievant, an arbitrator must reconstruct a promotion action to show that, absent the unwarranted actions, the grievant would have been selected. According to the Agency, "it follows that the arbitrator would also have to reconstruct the promotion action to show that specific individuals would not have been selected, absent the 'unwarranted actions', to order those selectees removed from the disputed positions." Id. at 3 (emphasis in original). The Agency concludes, therefore, that as the Arbitrator "totally failed" to make the appropriate findings, the award conflicts with section 7106(a)(2)(C) of the Statute.

Finally, the Agency contends that "[b]y ordering the rescission of all promotion selections, the arbitrator further exceeded his authority and scope of jurisdiction by ruling on matters not before him." Id. According to the Agency, although the grievance submitted to the Arbitrator concerned only the Fabric Worker WG-3105-09 vacancy, the Arbitrator ordered the rescission of other personnel selections which are not encompassed by the grievance. Therefore, the Agency claims that the award must be reversed because the Arbitrator ruled on matters not within his jurisdiction.

IV. Union's Opposition

As a preliminary matter, the Union notes that although the parties to the collective bargaining agreement are the Union and the Adjutant General of Delaware, the Agency's exceptions were filed with the approval of and on behalf of the Department of Defense. The Union argues that as the Adjutant General of Delaware is the employer, as defined by the parties' collective bargaining agreement, the Adjutant General is the appropriate party to file exceptions under section 7122 of the Statute. In addition, the Union contends that the Delaware National Guard, not the Department of Defense, was a party to the arbitration. Consequently, the Union claims that the Department of Defense is "not a 'party to arbitration' entitled" to file exceptions under section 7122 of the Statute. Opposition at 4-5 n.1.

As to the merits of the Agency's exceptions, the Union claims that the Agency's arguments are "practically identical to arguments [the] Authority has already rejected in previous cases." Id. at 1. According to the Union, the Authority has found that provisions similar to the provision in dispute in this case, which merely entitles bargaining unit employees to be considered for vacancies before nonbargaining unit employees, are negotiable procedures under the Statute. The Union cites Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980) and Association of Civilian Technicians Delaware Chapter and National Guard Bureau, Delaware National Guard, 3 FLRA 57 (1980).

As to the Agency's claim that the award violates section 7106 of the Statute, the Union argues that a similar argument was raised and rejected in Association of Civilian Technicians and Pennsylvania National Guard, 29 FLRA 1318 (1987) (Pennsylvania National Guard). According to the Union, in Pennsylvania National Guard, the same arbitrator involved in the instant case directed the agency to rerun a selection action in circumstances where the agency filled a vacancy with an AGR employee without complying with the announcement procedures contained in the parties' collective bargaining agreement. The Union contends that the award in Pennsylvania National Guard was upheld by the Authority because it was found to preserve management's discretion, among other things, to make selections. The Union asserts that the Arbitrator's award in this case also "preserves management's prerogative to make its selection" and does "not order management to select any specific individual or type of employee[.]" Opposition at 3. Consequently, the Union argues that the Agency's position "represents nothing more than a disagreement with the merits it already argued before the arbitrator[.]" Id.

The Union also disputes the Agency's claim that the award is inconsistent with ANGR 35-03. First, the Union notes that the amended regulation, requiring the simultaneous posting of civilian technician and AGR vacancy announcements and the simultaneous consideration of civilian technician and AGR personnel for vacancies, was promulgated after the parties' collective bargaining agreement became effective. The Union contends that the Arbitrator "properly concluded that this . . . regulation could not retroactively vitiate any contrary procedures contained in the parties' collective bargaining agreement." Id. at 4.

Second, the Union argues that nothing in ANGR 35-03 expressly "empowers management to ignore existing provisions of a collective bargaining agreement when implementing the regulation." Id. According to the Union, express provisions of the regulation provide that the Adjutant General is responsible for implementing the regulation consistent with any arguably inconsistent terms of a collective bargaining agreement.

Third, the Union argues that ANGR 35-03 applies only to Air National Guard members serving in a full-time military duty status. The Union contends, therefore, that "[a]s this regulation governs only 'full-time military duty status' personnel, not civilian technicians who do not serve in full-time military status, the regulation cannot supersede or impair provisions of the collective bargaining agreement . . . applicable to technicians." Id. at 5 (emphasis in original).

Finally, the Union argues that the Arbitrator's award only compels "the Agency to honor its contractual commitments regarding the procedures to be followed in making promotions. . . . [without] impair[ing] management's right to select employees from any source and [without] dictat[ing] to the employer who must be selected." Id. at 6. The Union concludes that "[b]y rescinding the selections made under the defective procedure employed by management, and ordering management to rerun the process in compliance with the contract's procedures, the [A]rbitrator was acting well within his remedial authority." Id.

V. Analysis and Conclusions

A. The Exceptions Were Properly Filed

We reject the Union's claim that the Department of Defense does not have standing to file exceptions because it is not the employer, as defined in the parties' collective bargaining agreement, and because it was not a party to the arbitration proceeding. First, there is nothing in the record before us that indicates the exceptions were not authorized by the Agency. Second, although the exceptions were filed on behalf of the Department of Defense, the exceptions were filed by the Director of Personnel, Office of Technician Personnel, Departments of the Army and the Air Force, National Guard Bureau. Exceptions at 1. The Authority has long held that national headquarters of agencies may file exceptions on behalf of their organizational elements. See, for example, Puget Sound Naval Shipyard and Bremerton Metal Trades Council, 33 FLRA 56, 58 (1988). Finally, nothing in our Rules and Regulations requires exceptions to be filed solely by a party's representative at an arbitration hearing. Accordingly, a party is free to designate different representatives for different purposes. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 36 FLRA 304, 308-9 (1990). Accordingly, the Agency's exceptions properly are before us.

B. The Arbitrator Did Not Exceed His Authority

Contrary to the Agency's claim, the Arbitrator did not exceed his authority by ruling on matters not before him. An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990). The grievance filed in this case originally concerned one Fabric Worker WG-3105-09 position. The Union, however, amended its original grievance to allege a number of additional violations.

In addition, the Arbitrator stated that one of the issues before him was whether the Agency violated the parties' collective bargaining agreement by simultaneously publishing civilian and AGR vacancy announcements. There is no indication in the record that the parties stipulated the issues to be resolved by the Arbitrator. In the absence of such a stipulation, an arbitrator's formulation of the issues is accorded substantial deference. For example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832 (1990). The award is directly responsive to the issues as the Arbitrator framed them. Consequently, we find that the Agency has not demonstrated that the Arbitrator's award relates to matters which were not submitted to arbitration or encompasses persons who were not included in the grievance. Accordingly, the Agency's assertion that the Arbitrator exceeded his authority provides no basis for finding the award deficient.

C. The Award Does Not Abrogate Section 7106(a)(2)(C) of the Statute

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.

We also noted in U.S. Customs Service, that an arbitrator's award is deficient if it fails to draw its essence from the parties' agreement. We encouraged the parties to set forth plainly and precisely the arrangements to which they have agreed for employees adversely affected by the exercise of management's rights. We held that when a party establishes that the arbitrator's enforcement of the agreement does not represent a plausible interpretation of the agreement, we will find the award deficient. In such a circumstance, however, the award will be found deficient because it fails to draw its essence from the agreement, not because it conflicts with management's rights. Id. at 317-18.

Applying that approach in this case, we find that the Agency has not established that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute. Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's right to select applicants from a source outside the bargaining unit.

Although neither party submitted a copy of Article XXI, Section 10, it appears from the record before us that Article XXI, Section 10 precludes the Agency from soliciting and considering for selection applicants from outside the bargaining unit before bargaining unit applicants are solicited and considered. As noted by the Agency, such a restriction on the solicitation and consideration of applicants for vacant positions directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. See Department of the Treasury. See also National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990).

In our view, however, such a restriction constitutes an arrangement for employees adversely affected by the exercise of management's right to select under section 7106(a)(2)(C)(ii) of the Statute. As noted by the Agency, AGR personnel are military personnel. Thus, to the extent that AGR personnel are selected for bargaining unit vacancies, the positions in question change from civilian to military, thereby reducing opportunities for advancement and promotion for bargaining unit employees. Consequently, we find that the Arbitrator enforced a provision of the parties' collective bargaining agreement that constitutes an arrangement for employees adversely affected by the exercise of management's right to select.

Further, we find that Article XXI, Section 10, as interpreted and applied by the Arbitrator, does not abrogate the Agency's right to select from any appropriate source. In U.S. Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Customs Service, 37 FLRA at 314. The Arbitrator's award does not preclude the Agency from exercising its right to solicit and consider applicants for vacant positions from any appropriate source. Rather, the award only requires the Agency to comply with Article XXI, Section 10 of the parties' agreement by first soliciting and considering bargaining unit applicants before soliciting and considering nonbargaining unit applicants.

Based on the above, we reject the Agency's contention that the award is deficient because it interferes with management's right to select under section 7106(a)(2)(C) of the Statute.

D. The Award Is Not Deficient Because It Is Inconsistent with ANGR 35-03

In our decision in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Fort Campbell), we held that where an arbitrator's award conflicts with agency rules or regulations, such conflict will provide a basis for finding the award deficient under section 7122(a)(1) of the Statute when such rules or regulations govern the disposition of the matter resolved by the arbitration award and the rules or regulations do not conflict with provisions of an applicable collective bargaining agreement. In so holding, however, we noted that a provision that has become part of a collective bargaining agreement takes precedence over agency rules and regulations with respect to matters to which they both apply.

According to the Agency, the Agency regulation involved in this case, ANGR 35-03, requires concurrent solicitation and consideration of civilian technician and AGR applicants for vacant bargaining unit positions. The Arbitrator found, however, that Article XXI, Section 10 of the parties' collective bargaining agreement requires that bargaining unit applicants be solicited and considered for selection for vacant bargaining unit positions before AGR or other nonbargaining unit applicants are solicited and considered. Although we find that the Arbitrator's award conflicts with ANGR 35-03, ANGR 35-03 is inconsistent with a provision of the parties' collective bargaining agreement which governs the same matter. Consequently, consistent with Fort Campbell, we conclude that Article XXI, Section 10 takes precedence over the conflicting requirements of ANGR 35-03. Therefore, we reject the Agency's claim that the award is deficient because it is inconsistent with ANGR 35-03.

E. The Portion of the Award Requiring the Agency To Rescind All Promotion Selections Is Inconsistent With Government-Wide Regulations

Where an arbitrator determines that an agency violated proper procedures in filling a vacant position, including procedures contained in a collective bargaining agreement, the incumbent employee is entitled under Federal Personnel Manual (FPM) Chapter 335, appendix A, section A-4b to be retained in the position pending corrective action unless it is specifically determined that the incumbent originally could not have been properly selected. See, for example, American Federation of Government Employees, Local 1960 and Department of the Navy, Development Center, 26 FLRA 250 (1987). In this case, the Arbitrator made no findings that the individuals selected for the positions in question could not have been selected if the Agency had followed the procedures set out in Article XXI, Section 10 of the parties' collective bargaining agreement. The Arbitrator found only that the Agency had violated Article XXI, Section 10 by simultaneously soliciting and considering AGR personnel with bargaining unit employees for vacant bargaining unit positions. Therefore, in the absence of the required showing that the selections were defective, the award is deficient to this extent as contrary to FPM Chapter 335, appendix A, section A-4. Compare U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1189 (1990) (award denying union's request that incumbent be removed from a disputed position was not inconsistent with FPM chapter 335, appendix A, section A-4b). We note, however, that the Agency is obligated to comply with the balance of the award requiring the Agency to (1) publish only civilian job announcements for each vacancy; (2) comply with the negotiated areas of consideration described in the parties' agreement; (3) reannounce each job vacancy correctly; and (4) make selections properly in accordance with the provisions of the parties' agreement.

F. Summary

In sum, we find that the Agency's exceptions are properly filed. We reject the Agency's exceptions that the award is deficient because: (1) the Arbitrator exceeded his authority; (2) the award is incon