40:0937(76)AR - - DOL, Mine Safety and Health Administration, Southeastern District and AFGE Local 2519 - - 1991 FLRAdec AR - - v40 p937
[ v40 p937 ]
The decision of the Authority follows:
40 FLRA No. 76
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 George V. Eyraud, Jr. 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 Arbitrator sustained a grievance alleging that the Agency violated the collective bargaining agreement in filling a vacancy. The Arbitrator ordered the Agency to remove the selectee from the position and rerun the selection action.
For the following reasons, we conclude that the portion of the award requiring the Agency to remove the selectee from the position is deficient. We will, however, deny the remainder of the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency posted a vacancy announcement for the position of Mine Safety and Health Specialist, GS-13. The announcement stated that the position was not in the bargaining unit. The announcement also stated:
Legal Requirements: The Federal Mine Safety and Health Amendments Act of 1977 states: "That, to the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be selected unless he has the basic qualification of at least five years practical mining experience . . . ."
Award at 9 (emphasis in original).
A Certificate of Eligibles for the position was issued containing the names of six applicants, including the grievant. The certificate did not contain the name of the employee who ultimately was selected (the selectee) for the position. On the date the certificate was issued, the selectee "filed a request for re-evaluation and her immediate supervisor . . . filed a request for review of classification strongly protesting the selection process." Id. The selectee's immediate supervisor was the selecting official for the vacancy.
Subsequently, the requirement for 5 years' practical mining experience was deleted as a qualification requirement for the position. A new vacancy announcement was not posted, however. An amended certificate was prepared containing the names of eleven applicants, including the selectee. The selecting official selected his assistant, the selectee, for the position.
The grievant filed a grievance alleging that the Agency's actions in filling the position violated various provisions in the parties' collective bargaining agreement. When the grievance was not resolved, it was submitted to arbitration.
Before the Arbitrator, the Agency conceded that "procedural errors were made in the selection process." Id. at 11. Among other things, the Agency conceded that applicants for the position should have been ranked by a qualified rating examiner and that the vacancy announcement erroneously stated that the position was outside the bargaining unit.(1) The Agency asserted, however, that its errors were "harmless." Id. at 12.
The Arbitrator concluded that the Agency violated two sections of Article 20 of the parties' collective bargaining agreement. First, the Arbitrator found that the Agency violated section 10(A)(1) by failing to submit the candidates' applications to a qualification rating examiner or a merit staffing evaluation panel.(2) Second, the Arbitrator found that the Agency violated section 11(B)(1) by failing to conduct interviews of the candidates.(3) The Arbitrator also concluded that although the Agency's failure to reannounce the vacancy after the requirement for 5 years' mining experience was deleted "may not be a direct violation" of the agreement, "it certainly leaves a great deal to be desired." Id. at 14. The Arbitrator stated that if other employees had "known of the lesser requirements for the position, most assuredly there would have been additional applicants for the job." Id.
Finally, the Arbitrator rejected the Agency's argument that "it has a right to determine qualifications . . . and that such matters are not arbitrable." Id. at 15. The Arbitrator stated that the matter before him did not "turn on management rights to set qualifications or determine qualifications of employees." Id. Instead, according to the Arbitrator, the matter involved the requirements of Article 20.
To remedy the violations of the parties' agreement, the Arbitrator directed the Agency to remove the selectee from the position "with a re-announcement of the position based on applicants at the time of the award." Id. at 16.
III. Agency's Exceptions
The Agency excepts to the award on four grounds.
First, the Agency asserts that the Arbitrator's award violates the Agency's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency claims that the Arbitrator improperly substituted his judgment for management's in determining that the selectee was not qualified for the disputed position.
Second, the Agency contends that the Arbitrator violated section 7105(a)(2)(A) of the Statute by determining that the disputed position is in the bargaining unit. The Agency asserts that only the Authority is authorized to make such determinations.
Third, the Agency contends that the Arbitrator's remedy is contrary to Federal Personnel Manual (FPM) Chapter 335, Appendix A, section A-4b and violates its right to make selections for appointments under section 7106(a)(2)(C) of the Statute. The Agency asserts that a selectee is entitled to be retained in a position pending corrective action unless it is specifically determined that he or she could not have been properly selected.
Finally, the Agency argues that the award is unclear and "does not give the [A]gency adequate direction as to what relief has been granted." Exceptions at 10.
IV. Union's Opposition
The Union claims that the Arbitrator did not determine the qualifications necessary to perform the work of the disputed position. The Union also contends that the Arbitrator did not resolve an issue concerning the bargaining unit status of the disputed position. The Union notes that after its CU petition was filed, the parties agreed that the position was in the unit.
Finally, the Union argues that the Arbitrator's remedy is not deficient. The Union contends that the Arbitrator properly ordered that the selectee be removed from the position because he found that she could not have been selected under the original vacancy announcement.
V. Analysis and Conclusions
A. Management's Rights to Assign Employees and Work
The Agency's argument that the award is deficient because it violates its rights to assign employees and assign work is misplaced. The Arbitrator did not determine that the selectee was not qualified for the disputed position and the award does not, in any way, restrict the Agency's rights to establish qualifications or determine whether employees possess required qualifications. In fact, the Arbitrator specifically stated that the dispute before him did not "turn on management's rights to set qualifications or determine qualifications of employees" but rather, "turns on Article 20 . . . which requires that the content of vacancy announcements set forth knowledge, skills, and abilities required and their relative importance." Award at 15. Accordingly, the Agency's exception provides no basis for finding the award deficient.
B. Bargaining Unit Status
Section 7105(a)(2)(A) of the Statute provides that the Authority shall "determine the appropriateness of units for labor organization representation under section 7112 . . . ." The Authority's jurisdiction under this provision is exclusive. As such, "factual disputes concerning the bargaining unit status of employees must be resolved by filing a clarification-of-unit petition with the Authority under section 2422.2(c) of our Rules and Regulations." U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 37 FLRA 71, 75 (1990). See also U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), motion for reconsideration granted sub nom. U.S. Small Business Administration and American Federation of Government Employees, Local 2532 and Council 228, 36 FLRA 155 (1990).
In this case, the Arbitrator did not resolve a dispute over the unit status of the disputed position. Prior to the arbitration hearing, the parties agreed that the disputed position was in the bargaining unit represented by the Union and, as a result of that agreement, the Union withdrew a CU petition it had filed with the Authority regarding the issue. We note, in this regard, that the Agency does not now assert that the disputed position is outside the unit. Accordingly, there was no issue regarding the unit status of the position to be resolved by the Arbitrator and the Agency's exception does not demonstrate that the award is deficient. Compare SBA, 32 FLRA at 854 ("There is no unit status question when the Authority has already determined that the grievant or the grievant's position is in the unit . . . .").
C. The Arbitrator's Remedy
Except with respect to its assertion that the award is ambiguous, the Agency does not except to the portion of the award requiring it to rerun the selection action. Moreover, it is well established that where an arbitrator finds that a selection action did not conform to applicable requirements of law or a collective bargaining agreement, the arbitrator may order that the action be rerun. For example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 143 (1990).
We agree with the Agency's argument that the portion of the award requiring the Agency to remove the selectee from the position is deficient, however. 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 [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." U.S. Department of Defense, Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, 39 FLRA 1225, 1236 (1991) (Delaware National Guard).
In this case, the Arbitrator made no finding that the selectee could not have been selected if the Agency had followed proper procedures. The Arbitrator found only that the Agency violated the parties' collective bargaining agreement by its actions in filling the vacancy. In the absence of the required finding that the selectee could not originally have been properly selected for the position, the award is deficient as contrary to FPM Chapter 335, Appendix A, section A-4b.(4) See Delaware National Guard, 39 FLRA at 1236. We will, therefore, modify the award to delete the requirement that the selectee be removed from the position.
D. The Arbitrator's Award Is Not Ambiguous
The Agency objects to the portion of the award requiring the Agency to "reannounce . . . the position based on applicants at the time of the award." Award at 16. The Agency claims that this portion of the award "is ambiguous and does not give the [A)gency adequate direction as to what relief has been granted."