47:0254(18)AR - - AFGE, Local 1815 and Army Aviation Center, Fort Tucker, AL - - 1993 FLRAdec AR - - v47 p254
[ v47 p254 ]
The decision of the Authority follows:
47 FLRA No. 18
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
March 31, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Linda S. Byars 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 filed an opposition to the Union's exception.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to convert the grievant's temporary position to a permanent one. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
In 1989 the grievant was selected for a temporary Supply Clerk position through competitive procedures under a job opportunity announcement (JOA) which stated: "[i]f this position becomes permanent, no further competition will be required." Award at 7. In May 1991, the grievant's supervisors requested that the grievant's temporary position be converted to a permanent position. The Agency denied the request because there were employees listed on the Department of Defense "Stopper List."(1) In October 1991, as a result of a reduction-in-force (RIF), a displaced employee was assigned to the Supply Clerk position, and the grievant was returned to her previous position.
A grievance was filed over the Agency's failure to convert the grievant's temporary position to a permanent one. When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:
Was the Agency's failure to convert the [g]rievant's temporary position to a permanent one a violation of the part[ies'] agreement as stated on the JOA?
Award at 7.
The Arbitrator denied the grievance. The Arbitrator found that the JOA constituted a "negotiated . . . agreement" and that the JOA addressed the conversion of temporary positions to permanent ones without further competition. Id. However, the Arbitrator also found that the JOA "did not address noncompetitive considerations." Id. at 8. Therefore, according to the Arbitrator, the noncompetitive placement of the displaced employee in the grievant's position did not violate the parties' agreement. The Arbitrator also noted that, "[a]lthough the Agency could have attempted to clear the Stopper List [in May 1991] and convert the [g]rievant if no one on the Stopper List wanted the position, the Agency's failure to take this action is not a violation of the parties' agreement." Id. at 9-10. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the award is contrary to Department of Defense (DoD) Regulation 1400.20-1-M, Chapter 4, Section A, paragraphs 2 through 10, which "prescribe when and under what conditions an activity must stop its recruiting actions (including temporary promotions) and 'clear' the Stopper List." Exception at 2. The Union contends that, as the Agency was obligated by the DoD Regulation to "'clear' the stopper list" in 1989, when the grievant was selected for the temporary position, there was "no requirement to again 'clear' the stopper list" in May 1991, when the request was made to convert the grievant's position to permanent status. Id. at 2. According to the Union, "[h]ad the [A]rbitrator been made aware of these regulatory operations . . . a different award would have been forthcoming." Id. at 3.
The Agency asserts that, as the applicability of the DoD regulation was not raised before the Arbitrator, the Union is precluded from raising the issue in its exception.
IV. Analysis and Conclusions
Section 7122(a) of the Statute provides that an arbitration award is deficient if it conflicts with a governing agency rule or regulation. 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). The Union argues, in this connection, that the Agency violated the procedures outlined in DoD Regulation 1400.20-1-M, Chapter 4, Section A, paragraphs 2 through 10, and that, by sustaining the Agency action, the award conflicts with the regulation.(2)
Under section 2425.2(d) of the Authority's Rules and Regulations, an exception must be a self-contained document which includes all pertinent documents. In this case, the Union has failed to provide a complete copy of the relevant portions of the regulation on which it relies.(3) As such, the Union has not supported its claim that the award is deficient as inconsistent with the regulation. See American Federation of Government Employees, Local 2094 and U.S. Department of Veterans Affairs, Manhattan Medical Center, 44 FLRA 1192 (1992). Accordingly, we will deny the Union's exception.