49:1604(147)AR - - NFFE, Local 1164 and Army Corps of Engineers, New England Division - - 1994 FLRAdec AR - - v49 p1604
[ v49 p1604 ]
The decision of the Authority follows:
49 FLRA No. 147
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
NEW ENGLAND DIVISION
July 15, 1994
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 Lawrence E. Katz 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 improperly failed to give the grievant special consideration for repromotion to a GS-12 position after he returned from overseas. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
In 1987, the grievant was a GS-11 engineer. At that time, the Agency's career ladder for engineers allowed incumbents to advance, noncompetitively, only to the GS-11 level. However, engineers who accepted and completed a 3-year promotional assignment overseas at the GS-12 level were granted special consideration for repromotion when they returned to their GS-11 positions stateside. For example, if a GS-11 engineer accepted an overseas promotion to the GS-12 level, upon returning stateside he or she was entitled to priority consideration for future applicable GS-12 positions.
In October 1987, the grievant began an overseas promotional assignment in Japan at the GS-12 level in order to, in part, attempt to obtain a GS-12 position when he returned stateside. The grievant completed his overseas assignment satisfactorily. When he returned stateside in November 1990, there was no immediate GS-12 position available for the grievant. Therefore, he was placed in a GS-11 position and was put on the list for special consideration for repromotion to the GS-12 level.
On January 23, 1989, while the grievant was performing his overseas assignment, the Agency amended its career ladder for engineers so that positions up to the GS-12 level, rather than the GS-11 level, were included.(1) As a result, incumbent GS-11 engineers were promoted noncompetitively to the GS-12 level. As a result of the career ladder promotions to the GS-12 level, no GS-12 engineer positions have been filled through competitive procedures after the grievant returned stateside. Rather, Agency engineers moved from the GS-11 level to the GS-12 level pursuant to the career ladder.(2)
On October 14, 1992, the grievant filed a grievance challenging the Agency's failure to repromote him to a GS-12 position or to afford him special consideration for such a repromotion. The Agency denied the grievance and the matter was ultimately submitted to arbitration.
The Arbitrator stated the issues before him as follows:
Whether, under the facts and circumstances as found by the Arbitrator, the Agency denied the [g]rievant special consideration for repromotion to a GS-12 position after he returned from overseas?
If so, what shall be the remedy?
Award at 1.
Before the Arbitrator, the Agency contended that the grievant was entitled to special consideration for repromotion to the GS-12 level only if the selecting official chose to fill a particular vacancy through competitive procedures. The Agency maintained that because no GS-12 engineer positions had been filled through competitive procedures, there was no occasion for the grievant to be afforded special consideration. The Union asserted that the grievant was denied special consideration for repromotion to the GS-12 level, while less experienced engineers were competitively promoted to the GS-12 level.
The Arbitrator found, upon review of AR 690-950, that the regulation mandated that the Agency give special consideration for repromotion to an eligible employee before choosing to fill a vacancy by competition. The Arbitrator found that if the selecting official did not have a vacant position to fill, or did not choose to fill a vacancy through competitive procedures, the selecting official was not required to give an employee special consideration. The Arbitrator determined that the existence of a vacancy that the Agency has chosen to fill through competitive procedures is a "condition precedent" which must be satisfied before special consideration is given to any employee. Id. at 8. The Arbitrator stated that he recognized that the grievant felt that "he has been dealt with unfairly, in that the special consideration for repromotion which resulted from his three-year stint overseas has existed on paper only; it has not actually enabled him to secure a GS-12 position." Id. at 10. In this regard, the Arbitrator stated:
Unfortunately, there is nothing in the applicable regulations which prevented [the] Agency from expanding the career ladder program to the GS-12 level during [the grievant's] absence. Nor was there anything which prohibited [the] Agency from relying on that particular form of non-competitive procedure to the exclusion of the special consideration procedure which the grievant would have preferred.
Id. at 10-11.
As his award, the Arbitrator found that the Agency did not improperly deny the grievant his right to special consideration for repromotion to a GS-12 position after he returned from overseas.
III. Positions of the Parties
A. Union's Exception
The Union contends that the Arbitrator erred, as a matter of law, in his interpretation of AR 690-950. According to the Union, that regulation requires the Agency to give employees returning from overseas duty special consideration for repromotion prior to any decision to fill a vacancy by competitive procedures. The Union maintains that the Agency may exercise its discretion to effect a career ladder promotion only after the Agency has met its obligation under the mandatory special consideration section of the regulation.
B. Agency's Opposition
The Agency asserts that the Arbitrator's interpretation of its regulation regarding special consideration is correct. According to the Agency, the Arbitrator correctly found that the promotions of the incumbents to the GS-12 level of the career ladder were not accomplished under competitive procedures and, therefore, there was no requirement to first afford special consideration to the grievant. The Agency maintains that the Union's exception does not establish that the award is inconsistent with the Agency's regulation, but rather constitutes mere disagreement with the Arbitrator's findings and conclusions.
IV. Analysis and Conclusions
For the following reasons, we find that the Union's exception does not provide a basis on which to find the Arbitrator's award deficient. Accordingly, we will deny the exception.
Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 432 (1992), reconsideration denied, 44 FLRA 950 (1992); 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). We find that the Union has not shown that the Arbitrator's award conflicts with a governing Agency rule or regulation.
The Union claims that the award is deficient because, under AR 690-950, the Agency was required to afford the grievant special consideration for repromotion to a GS-12 position prior to promoting other employees to the GS-12 level. In relevant part, AR 690-950 provides that "[s]electing officials will give special consideration for repromotion to eligible employees before choosing to fill vacancies by competition." Award at 2. As noted above, the Arbitrator determined that the existence of a vacancy that the Agency has chosen to fill through competitive procedures is a "condition precedent" which must be satisfied before special consideration is given to any employee. Id. at 8. The Arbitrator found that the Agency has had no vacancies at the GS-12 level and concluded, therefore, that the Agency was not mandated by AR 690-950 to use special consideration to promote the grievant. Moreover, we note that a career ladder promotion does not constitute filling a vacancy by competition. Consequently, we find that the Union has not shown that under AR 690-950, the Agency was required to promote the grievant to the GS-12 level under special consideration or was precluded from effecting career ladder promotions without first promoting the grievant.
Accordingly, we find that the Union's contention that the award is contrary to AR 690-950 provides no basis on which to find the award deficient. Rather, in our view, the Union is merely disagreeing with the Arbitrator's conclusion that the Agency did not violate its regulations when it did not promote the grievant to the GS-12 level under the special consideration provision of the Agency's regulation. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 45 FLRA 411, 415-17 (1992).
The Union's exception is denied.
A. Army Regulation 690-950-1 (31 August 1987)
. . . .
Merit Placement and Outside Recruitment
. . . .
2-13. Exceptions to competitive procedures
a. Competitive procedures will not apply to the following:
. . . .
(4) Promotion resulting from special consideration for repromotion. (See para 2-14.)
. . . .
c. Competitive procedures need not apply to the actions listed below:
. . . .
(2) Promotion without current competition when an employee was selected earlier for a position classified at a lower grade for recruitment purposes, provided--
. . . .
(b) The promotion potential was made known to all potential applicants, and
(c) The recruitment plan was documented to show the intended career ladder.
2-14. Special consideration for repromotion
(1) Selecting officials will give special consideration for repromotion to eligible employees before choosing to fill vacancies by competition.
(If blank, the decision does not have footnotes.)
1. This temporary amendment was incorporated in the next revision of Army Regulation (AR) 690-950, which became effective on January 15, 1992. The relevant text of the regulation is set forth in the Appendix to this decision.
2. The Arbitrator noted that during the hearing, the grievant and the Union contended not only that the grievant was not afforded the required special consideration for repromotion, but also that he was not given fair consideration for a career ladder promotion. The Arbitrator found that this issue was beyond the scope of