53:1626(144)AR - - Defense Commissary Agency, Fort Lee, Virginia and NAGE Local R4-45 - - 1998 FLRAdec AR - - v53 p1626



[ v53 p1626 ]
53:1626(144)AR
The decision of the Authority follows:


53 FLRA No. 144

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

FORT LEE, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

0-AR-3023

_____

DECISION

March 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator David F. Sweeney 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by selecting a part-time employee to fill a vacant full-time produce worker position without following the competitive procedures of the negotiated merit promotion plan.

For the reasons explained below, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitration Award

The grievant is a part-time employee in the produce department at the commissary, which employs both full-time and part-time employees. In the spring 1997, a full-time position became vacant. The Agency did not post an announcement of the vacancy or notify the Union that a vacancy existed, pursuant to the negotiated merit promotion plan set forth in Article 37 of the parties' collective bargaining agreement.(1) Instead, the Agency selected another part-time employee to fill the vacant position. The Agency contended that the posting and notice were not required because the selection action constituted a change in work schedule without an increase in the grade level of the selected employee and not a promotion.

The Union filed a grievance alleging that the grievant was not given "full and fair consideration for a full-time (change in work schedule) appointment[.]" Award at 3. The Arbitrator stated the issue as:

Did the Agency follow appropriate and required procedures in filling the vacant position of full-time produce worker in June, 1997? If not, what should the remedy be?

Id. at 7.

The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by selecting the employee without following the competitive procedures of the negotiated merit promotion plan set forth in Article 37 of the agreement. The Arbitrator did not determine whether the filling of the full-time vacancy with a part-time employee constituted a "promotion" under Office of Personnel Management regulations. Rather, noting that the parties' agreement did not define the term "promotion," the Arbitrator examined the agreement and determined the circumstances that the parties intended would be subject to "the bidding process." Id.

The Arbitrator noted that, by its wording, Section 1 of Article 37 states that the purpose of the merit promotion plan is "to insure that employees are given full and fair consideration for advancement." Id. The Arbitrator found that the vacant full-time position presented an opportunity for part-time employees to gain an increase in salary and benefits and, thus, advance. Thus, the Arbitrator found that, consistent with the purposes of Article 37, the Agency was required to follow the procedures in that Article in filling the vacancy.

As an award, the Arbitrator sustained the grievance. The Arbitrator found that he was without authority to either appoint the grievant to the position or to "declare the position vacant." Id. at 9. The Arbitrator directed the Agency to "give notice" to all eligible employees, to provide them an "opportunity to bid for the [position] and to know what criteria are used[.]" Id. at 9-10. The Arbitrator stated that if the position is filled by someone other than the original selectee, then the other employees would have an opportunity file a grievance. The Arbitrator referred to the award as a "pyrrhic" victory. Id. at 10.

III. Positions of the Parties

A. Agency's Exceptions

In its exceptions, the Agency challenges the Arbitration award as contrary to law, as failing to draw its essence from the parties' collective bargaining agreement, and as based on a nonfact.

First, the Agency contends that the Arbitrator's finding that Article 37 applies to the selection action conflicts with the definition of the term "promotion" set forth in 5 C.F.R. § 210.102(b)(11)(i). Exceptions at 4. The Agency asserts that this definition applies to Article 37 and that the "essence" of the definition is that there must be an increase in grade level of the selected employee. Id. at 5. Thus, the Agency asserts that Article 37 could not apply because the selected employee had no increase in her grade level.

Second, the Agency contends that the Arbitrator's finding that Article 37 applies to the selection action conflicts with the requirements of 5 C.F.R. § 335.103(c). That regulatory provision sets forth the requirements of an agency merit promotion plan. The Agency asserts that 5 C.F.R. § 335.103(c) does not require that such a plan apply to a "change in work schedule from part-time to full-time" where, as here, there is no increase in the grade level of the selected employee. Id. at 6.

Third, the Agency contends that the Arbitrator's construction of Article 37 in a manner that conflicts with the definition of the term "promotion" set forth in the regulations described above was not reasonable. Id. at 6. The Agency asserts that the parties' intended to apply Article 37 consistent with those regulatory provisions and that the contract implicitly incorporated these regulations.

Fourth, the Agency contends that the Arbitrator's enforcement of Article 37 excessively interferes with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to assign employees and work and to determine its personnel. In this connection, the Agency argues that the award would prevent management "from changing the number of hours an employee works, on a temporary or permanent basis," unless it does so under the competitive procedures in the negotiated merit promotion plan. Id. at 10.

Finally, the Agency contends that the Arbitrator erroneously found that the change in work schedule for the selected employee constituted a promotion. The Agency asserts that the Arbitrator would have reached a different result but for that error.

B. Union's Opposition

The Union contends that the Arbitrator correctly found that Article 37 of the parties' agreement applies to the selection of an employee for a vacant full-time position.

Further, the Union contends that the Arbitrator's enforcement of the agreement did not interfere with a management right. The Union disputes the Agency's contention that the award would prevent management from changing the number of hours an employee works, unless it does so under the competitive procedures in the negotiated merit promotion plan. Rather, the Union argues that the award would require the agency to apply those procedures whenever the filling of a vacant position would constitute an opportunity for "advancement" within the meaning of Section 1, Article 37 of the parties' agreement.

Finally, the Union contends that the award is not based on a nonfact because the Arbitrator did not find that the selected employee was promoted.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law

Where a party's exception involves an award's consistency with law, the Authority must review the questions of law raised by the arbitrator's award and the party's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In this case, the Agency's allegations of legal error are based on a misinterpretation of the award, as well as a misinterpretation of the limits that law and regulation place on the interpretation of the collective bargaining agreement.

1. The Award Is Not Contrary to 5 C.F.R. § 210.102(b)(11)(I)

Section 210.102(b)(11)(i) defines the term "promotion" as "a change of an employee . . . [t]o a higher grade[.]" We find no merit in the Agency's contention that the Arbitrator's finding that Article 37 applies to the selection action conflicts with the definition of the term "promotion" set forth in that section. First, the Agency's contention is based on a misinterpretation of the award. The Arbitrator did not find, as claimed by the Agency, that the selection action constituted a promotion under the regulations. Rather, the Arbitrator held that the competitive procedures in the negotiated merit promotion plan were applicable to the process of selecting an employee to fill a "vacant" position that involved "advancement" for the employee. Award at 8. Second, there is nothing in section 210.102(b) that prevents the parties from agreeing to apply the competitive procedures in the negotiated merit promotion plan to such selections, including selecting a part-time employee to fill a full-time position. Therefore, we conclude that the award is not inconsistent with section 210.102(b).

2. The Award Is Not Contrary to 5 C.F.R. § 335.103(c)

Section 335.103(c) requires that competitive procedures apply to all promotions under 5 C.F.R. § 335.102 and to certain other personnel actions. Section 335.103(c) also provides that competitive procedures are applicable to certain enumerated personnel actions at the agency's discretion.

We find no merit in the Agency's contention that the Arbitrator's finding that Article 37 applies to the selection action conflicts with the requirements of section 335.103(c). As discussed with respect to section 210.102(b), above, the Agency has not demonstrated, and no reason is apparent, that competitive procedures in the negotiated merit promotion plan are limited to those personnel actions referenced in section 335.103(c). Rather, section 335.103(c) sets out the personnel actions that agencies must fill through merit promotion. The parties are free to add to that list through negotiations.

3. The Award Is Not Contrary to Management's Rights Under Section 7106(a)(2)(A) and (B)

We find no merit in the Agency's contention that the Arbitrator's enforcement of Article 37 excessively interferes with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to assign employees and work and to determine its personnel. The Agency argues that the award prevents management from changing the number of hours an employee works, unless it does so under competitive procedures. However, by its terms, the award merely requires the Agency to provide notice of the position and an opportunity for employees to apply and know the selection criteria. Therefore, the award does not affect management's rights and we need not apply the Authority's test for evaluating whether an arbitration award impermissibly affects a management right. U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997).

Accordingly, we deny these exceptions.

B. The Award Draws Its Essence from the Collective Bargaining Agreement

The Agency contends that Arbitrator's finding that Article 37 applies to the selection action unreasonably fails to recognize the parties' intent to implicitly incorporate the regulatory definition of the term "promotion" into the contract. We construe this argument as a claim that the award fails to draw its "essence" from the contract. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Agency's claim that the Arbitrator's interpretation was unreasonable, even if true, would not satisfy the standard for overturning an Arbitrator's interpretation of a collective bargaining agreements. This standard requires that the objecting party establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. Id. Since the Agency's claim does not meet any of these criteria, we deny this exception.

C. The Award Is Not Based on a Nonfact

The Agency asserts that the award is based on a nonfact, on the ground that the Arbitrator erroneously found that a change in work schedule constituted a promotion. To establish that an award is based on a nonfact, the appealing party must establish that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Ba