48:0511(49)AR - - NFFE, Local 1636 and DOD, NG Bureau, Albuquerque, NM - - 1993 FLRAdec AR - - v48 p511



[ v48 p511 ]
48:0511(49)AR
The decision of the Authority follows:


48 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1636

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

ALBUQUERQUE, NEW MEXICO

(Agency)

0-AR-2421

_____

DECISION

September 13, 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 Don J. Harr 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 filed an opposition to the Union's exception.

The Arbitrator denied a grievance protesting the manner in which the Activity filled six newly created technician positions. The Arbitrator found that the grievance concerned an "examination, certification, or appointment" within the meaning of section 7121(c)(4) of the Statute and, therefore, was not arbitrable.

For the following reasons, we conclude that the Arbitrator's ruling that the grievance was not arbitrable is deficient. The award will be remanded to the parties for the purpose of requesting that the Arbitrator render a decision on the merits of the grievance.

II. Background and Arbitrator's Award

The grievant, a technician, filed a grievance over the manner in which the Agency filled six new technician positions at its facility located at Kirtland Air Force Base. The positions were created when the Agency's 150th Fighter Group converted from A-7 aircraft to F-16 aircraft. Because there were no technicians in the Agency's 150th Fighter Group with experience in working on F-16s, the Activity posted a vacancy announcement seeking qualified applicants for these positions. The grievant was found to be qualified and his name was placed on the selection certificate. However, the grievant was not selected.

As part of the grievance, the grievant claimed that one of the selected employees failed to meet the announced qualification requirements. The grievance was not resolved and was submitted to arbitration. The issues before the Arbitrator were:

1. Is the subject matter of the grievance clearly non-grievable, and therefore non-arbitrable, by law?

2. Did the Agency violate the [c]ollective [b]argaining [a]greement by the manner in which [it] filled six new technician positions . . . .

Award at 2.

The Arbitrator "dismissed" the grievance on the basis that it was not arbitrable. Id. at 6. In reaching that result, the Arbitrator rejected the Union's argument that "the arbitrability issue depend[ed] on the meaning of the statutory term 'classification of any position[]'" as used in section 7121(c)(5) of the Statute. Id. The Arbitrator found that the "controlling language" was that of section 7121(c)(4), which excludes from negotiated grievance procedures any grievance concerning an "examination, certification, . . . or appointment." Id. (emphasis in original). The Arbitrator concluded that because the grievance raised an issue that is excluded by section 7121(c)(4) of the Statute, the grievance was not arbitrable as a matter of law.

III. Positions of the Parties

A. Union's Exception

The Union contends that section 7121(c)(4) of the Statute does not preclude consideration of the grievance. According to the Union, that section governs only initial appointments to the Federal service, and does not govern actions affecting current Federal employees. In support of this position, the Union cites Department of Defense Dependents Schools--Pacific Region and Overseas Education Association, 31 FLRA 305 (1988) (OEA). The Union asserts that because the grievance in this case concerns a current Federal employee, the Arbitrator's decision is erroneous as a matter of law. The Union requests that the Authority vacate the award and remand the case to the Arbitrator for a hearing and decision on the merits.

B. Agency's Opposition

The Agency maintains that the Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122 of the Statute. The Agency also states that the Union failed to explain its argument regarding the arbitrability of the grievance before the Arbitrator and should not now be permitted to "raise the argument regarding [s]ection 7121(c)(4) before the Authority[.]" Opposition at 2. According to the Agency, the Union is attempting to relitigate the merits of the case before the Authority.

The Agency further asserts that the relief sought by the Union is excessive. In this regard, the Agency argues that even if the Authority finds that the grievance is arbitrable, "the [A]rbitrator couldn't substitute his judgement for that of the selecting official's in making the promotion decision . . . ." Id. The Activity additionally notes that the merits of this case have already been fully heard. Therefore, the Agency asserts that even if the Authority agrees with the Union's exception, the Authority should reject the Union's request for a hearing and, at most, order that the merits of the case be considered.

IV. Analysis and Conclusions

We find that the award is deficient because it is contrary to section 7121(c)(4) of the Statute. Accordingly, we will vacate the award and remand the case to the parties.

Section 7121(c)(4) provides that any grievance concerning an "examination, certification, or appointment" must be excluded from a negotiated grievance procedure under the Statute. The Authority has, in previous decisions, defined certain of the terms contained in that section and has found that they relate to the initial entry of an applicant into the Federal service. For example, in National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376 (1980) (National Council) the Authority addressed the meaning of the term "appointment" and concluded that "general usage of the term 'appointment' refers to the action which takes place at the time an individual is initially hired into the Federal service." Id. at 381. In National Council, the Authority applied the term "appointment" consistent with this general usage in finding that a grievance over the separation of a probationer was not precluded by section 7121(c)(4) of the Statute. The Authority adhered to this application of section 7121(c)(4) in United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 748 (1988), in concluding that a grievance concerning the temporary assignment of an employee was not precluded by the Statute. More recently, the Authority stated that it "will continue to adhere to this usage of the term 'appointment' in applying section 7121(c)(4)" in a case involving an agency's failure to convert teachers in temporary positions to permanent positions. U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 45 FLRA 1411, 1416 (1992).

As to the term "certification," the Authority has stated that it is "the process by which the Office of Personnel Management submits certificates of a list of eligibles from a register to appointing officers so that the eligibles may be considered for appointment." OEA, 31 FLRA at 310. Based on this definition, the Authority found that grievances relating to the eligibility of employees to be recertified as counselors were not precluded by section 7121(c)(4) of the Statute.

Consistent with the use of the terms "appointment" and "certification" to refer to the initial entry into Federal service, we find that term "examination" refers to this matter as well. Thus, we find that examination refers to a process by which an applicant's qualification for employment is determined before the applicant is considered as a candidate for appointment. See generally 5 U.S.C. Chapter 33, Subchapter I, entitled "Examination, Certification and Appointment."

In the instant case, the grievance concerns an action affecting a current Federal employee. It does not concern the initial entry of an applicant into the Federal service. Accordingly, we conclude that the Arbitrator improperly denied the grievance as not arbitrable. Therefore, we will vacate the award and remand the case to the parties for resubmissio