44:0905(73)AR - - AFGE Local 916 and Air Force, Tinker AFB, OK - - 1992 FLRAdec AR - - v44 p905
[ v44 p905 ]
The decision of the Authority follows:
44 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
TINKER AIR FORCE BASE, OKLAHOMA
April 23, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mark R. Sherman filed by 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 did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the grievant was entitled to a promotion. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievance in this case is one of a series of grievances that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, concerning the Agency's failure to promote various wage grade employees who participated in, or were affected by, the Agency's implementation of its vocational technical (Vo-Tech) training program. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 692 (1991).
The grievant was first employed by the Agency in January, 1984, as a Wage Grade 5 (WG-5) in the job series 5439, performing inspection work on aircraft components. By February, 1985, the grievant had attained the target grade of WG-8. At this point, the grievant had to attain a promotion to the WG-9 level competitively. It had been common practice for the grievant's co-workers and their predecessors at WG-8 to "routinely" progress to WG-9 within a matter of months after attaining WG-8 status. Award at 4. However, in order for employees to move from WG-8 to WG-9 it was crucial that they meet the following two criteria: (1) certification after completing specialized inspection training; and (2) working alone in the performance of the relevant journeyman inspection work. With regard to the latter criterion, management commonly affixed an "N" stamp to the work. An "N" stamp on an inspected part signified the accountability of the employee to whom it was issued.
In the second half of 1986, just days before the grievant was scheduled to finish a course that would result in his certification, management discontinued the grievant's training. At about this time, the grievant and his co-workers began training less senior employees from the Agency's Vo-Tech program. Many of the Vo-Tech employees were promoted to the WG-9 level while the grievant and his co-workers were not. In August 1989, the grievance in this matter was filed along with a number of other similar grievances. The grievance alleged that the grievant should have been promoted to the WG-9 level. Sometime prior to the filing of the grievance, the grievant was transferred to another job series. When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator framed the issue as follows:
Was the Agency's failure to promote the Grievant . . . from WG-8 to WG-9 a violation of any laws, rules, regulations or provisions of the Master Labor Agreement and if so, what is the proper remedy?
Id. at 2.
The Arbitrator stated that "in order for the [g]rievant to succeed in his claim he must demonstrate that he is entitled to promotion for one of two reasons: (1) because he profiled successfully in competitive procedures as specified in Article 12 of the [parties' agreement] and the Merit Principles; or (2) because he had performed the grade-controlling duties of a higher graded position for 30 or more consecutive days as specified in Article 13 of the [parties' agreement]." Id. at 16.
The Arbitrator first found that it was clear that the grievant was required to compete for WG-9 status, and that he had not been successful on those occasions when he had competed for WG-9 positions. With regard to the second criterion for promotion, the Arbitrator noted that in virtually all of the other job series 5439 grievances cited by the Union, the grievance was sustained on the basis of a factual determination that the individual had performed grade-controlling duties of a higher graded position for 30 or more consecutive days. However, the Arbitrator found that in this case the Union had offered no probative evidence to substantiate the claim that the grievant had ever performed WG-9 grade-controlling duties. The Arbitrator noted that the parties had stipulated that the appropriate certification and working alone were crucial to the performance of WG-9 duties. Finding that the grievant did not have the certification and that there was no evidence that he had ever worked alone performing journeyman work, the Arbitrator concluded that management had not breached the parties' agreement in failing to promote the grievant.
The Arbitrator then turned to the question of whether any other laws, rules, or regulations were violated. The Arbitrator found that the general directives contained in Air Force regulations and in the parties' agreement admonished the Agency to: (1) treat employees fairly (Air Force Regulations 40-101, 102 and 701); (2) work cooperatively to improve the quality of the work environment (section 10.01 of the parties' agreement); (3) use the skills of bargaining unit employees to the maximum extent possible (section 12.01 of the parties' agreement); and (4) refrain from harming morale by requiring employees to train higher-graded employees (section 18.01 of the parties' agreement). The Arbitrator concluded that these regulations do not specifically deal with an obligation to promote an employee who has no automatic or competitive entitlement to be promoted. Because the Arbitrator found, as noted above, that the grievant, unlike many of his co-workers, could not show that he had performed WG-9 work for 30 or more consecutive days, the Arbitrator concluded that these general provisions afforded no protection to the grievant. The Arbitrator also concluded that in the absence of specific and substantive violations of rules, regulations, or the parties' agreement, the Back Pay Act could not be a basis for relief.
The Arbitrator found that "[w]hile the discontinuation of [the grievant's] training may have been 'unjustified' and 'unwarranted,' it was not done in contravention of any explicit provision the Union could point to, nor did it directly 'result in the withdrawal, reduction or denial of pay allowances and differentials.'" Id. at 17-18. The Arbitrator concluded that while "there was both mismanagement and injustice" present on the part of management, "none of the Agency's actions constituted a transgression that would permit [the] grievance to be sustained." Id. at 18.
III. Union's Exceptions
The Union contends that the Arbitrator exceeded his authority, and that the award violates law, regulation and the parties' agreement. The Union argues that by concluding that the grievant did not perform higher-graded duties and that the Agency had violated no laws, rules, or regulations, the award does not draw its essence from the parties' agreement or the regulations.
The Union disputes the Arbitrator's conclusion that the Agency did not violate any laws, rules, or regulations even though the Arbitrator found that the discontinuation of the grievant's training was "unjustified and unwarranted" and that there was both "mismanagement and injustice" present on the part of management. The Union contends that the Agency violated Air Force Regulation 40-101 (AFR 40-101), which states that employees are to be treated fairly. The Union asserts that taking the grievant out of training two days prior to completion of training so that other employees could take the grievant's training slot, be trained by the grievant, and then be promoted over the grievant, was "patently unfair . . . ." Exceptions at 2.
The Union also contends that the Agency's action of taking the grievant out of training was a prohibited personnel practice under the merit system principles set forth in to 5 U.S.C. § 2301. The Union cites to twelve arbitrator awards involving related Vo-Tech issues, and asserts that those awards found that the Agency violated AFR 40-101 and committed a prohibited personnel practice.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.
We reject the Union's contention that the Arbitrator's failure to award the grievant a promotion is inconsistent with AFR 40-101, which requires that employees be treated fairly. The Union argues that the Arbitrator should have awarded the grievant a promotion because the Arbitrator found that the discontinuation of the grievant's training was "unjustified and unwarranted" and that there was both "mismanagement and injustice" present on the part of management. However, the Union has not shown that the Arbitrator erred in concluding that, despite the general admonishments in AFR 40-101 to treat employees fairly, under the parties' agreement an employee must be qualified by actual work experience or training to be considered for promotion to the WG-9 level. We find that the Union fails to establish, in the circumstances of this case, that the cited regulation requires the awarding of a promotion to a grievant who is not otherwise qualified for the work required of the position. Accordingly, we conclude that the Union fails to establish that the Arbitrator's award is inconsistent with AFR 40-101.
To the extent that the Union relies on merit systems principles in asserting that the grievant should be promoted, the Authority has consistently held that merit system principles are hortatory and are not self-executing and that, alone, they may not form a basis of legal action. U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 462-63 (1991); Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, AFL-CIO, Local 1364, 35 FLRA 754, 762 (1990). Thus, we have held that because merit systems principles are not self-executing, they cannot independently authorize or serve as the basis for an arbitration remedy. Id. Accordingly, such an assertion provides no basis for finding an award deficient. See U.S. Department of the Army, Army Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 40 FLRA 236, 240-42 (1991).
The Union also contends that the award fails to draw its essence from the collective bargaining agreement. To demonstrate that