United States, Department of Defense, Alabama Air National Guard, Montgomery, Alabama (Agency) and Association of Civilian Technicians, Alabama Air Chapter (Union)

[ v58 p411 ]

58 FLRA No. 100







March 31, 2003


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Craig E. Overton filed by the Agency under § 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 sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by noncompetitively reassigning a supervisory employee to a bargaining unit position without posting a vacancy announcement.

      For the reasons that follow, we find that the Agency has established that the award is deficient because it impermissibly affects management's right to fill positions from any appropriate source, contrary to § 7106(a)(2)(C)(ii) of the Statute. Accordingly, we grant the Agency's exceptions and set aside the award.

II. Background and Arbitrator's Award

      The Agency noncompetitively reassigned a supervisory employee to a vacant position in the bargaining unit without posting a vacancy announcement. The Union filed a grievance alleging that the Agency's action violated Article 17, § 17-6 of the parties' agreement. [n1]  The grievance was unresolved and submitted to arbitration, where the issue before the Arbitrator was: "What shall be the disposition of the grievance, including remedy, if any?" Award at 2.

      The Arbitrator concluded that the Agency's "personnel action violated [Article 17 of] the [parties'] [a]greement, specifically the merit promotion procedures for filling bargaining unit vacancies." Id. at 17. In reaching this conclusion, the Arbitrator relied on § 17-6, finding that advertisement of the position was required and that no vacancy notice was advertised regarding the disputed position. According to the Arbitrator, even though 5 U.S.C. § 7106 indicates that the Agency may make selections for appointments from any appropriate source, the unilateral placement of the supervisor in the disputed position "without even considering anyone already in a bargaining unit position clearly and unambiguously violated" the parties' agreement. Id. at 16. The Arbitrator also rejected the Agency's contention that because reassignment would not be a promotion for the supervisor, it was excluded from the competitive procedures under § 17-4(h), which exempts a "position change from a position to a position having no higher promotion potential." In this regard, the Arbitrator determined that the exemptions apply only to the placement of bargaining unit employees in bargaining unit positions. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to rescind the reassignment of the supervisory employee. [n2] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award affects the Agency's right under § 7106(a)(2)(C)(ii) of the Statute to fill a position from any appropriate source. According to the Agency, the Authority has previously found that provisions similar to § 17-6 of the parties' agreement would "restrict management to filling vacancies through competitive procedures," and that such restrictions on management's right to select are not allowed. Exceptions at 2 (quoting ACT, Treasure State Chapter #57, 56 FLRA 1046, 1048 (2001) (ACT I)).

      The Agency also contends that, under the parties' agreement, it is required to advertise a vacancy in the bargaining unit only if it chooses to do so and that by electing not to announce the position in the instant case, the Agency properly exercised its right to fill the position through another appropriate source. [ v58 p412 ]

B.     Union's Opposition

      According to the Union, the Agency's citation to ACT I overlooks that, on reconsideration, the Authority clarified the decision to mean that mandatory use of competitive selection procedures violates the management right to select only if an appropriate source is precluded from consideration through the competitive selection process. See Opposition at 3 (citing ACT, Treasure State Chapter #57, 57 FLRA 53, 54 (2001) (ACT II)). In this regard, the Union asserts that it is undisputed that the supervisor is available for selection through competitive procedures under the parties' agreement.

      The Union also contends that the Agency's argument that the parties' agreement requires it to announce and use competitive procedures only if it chooses to do so was not raised before the Arbitrator and, therefore, should not be considered by the Authority pursuant to § 2429.5 of the Authority's Regulations.

IV.     Analysis and Conclusions

     The award is contrary to management's right to fill positions from any appropriate source.

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id

      In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine whether the award is deficient. Under Prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law within the meaning of § 7106(a)(2) of the Statute or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under Prong II, the Authority determines whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contract provision at issue.

      Pursuant to § 7106(a)(2)(C) of the Statute, management has the right in filling positions to select from among a group of properly ranked and certified candidates for promotion or from any other appropriate source. See ACT, Pa. State Council, 54 FLRA 552, 558 (1998). Consistent with this definition, the Authority has found management's right to select affected when an arbitrator, after finding that the agency violated the parties' agreement in filling a position, ordered the agency to vacate the position. See United States Dep't of Defense, The Adjutant Gen., Nat'l Guard Bureau, Tenn. Air Nat'l Guard, 56 FLRA 588, 591 (2000) (Tenn. Air Nat'l Guard). Here, as in Tenn. Air Nat'l Guard, the Arbitrator found that the Agency's action violated the parties' agreement in filling a position and ordered the Agency to rescind the reassignment. Consequently, we find that the award affects management's right to select, and evaluate the award under the BEP framework. See id.

      Under Prong I, the Authority determines whether Article 17 of the parties' agreement was negotiated pursuant to § 7106(b) of the Statute. See United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, Tex., 55 FLRA 523, 526 (1999). The Union asserts that Article 17 contains the applicable competitive procedures for selection and both the Union and the Agency rely on Authority case law concerning § 7106(b)(2). Thus, we construe the Union's assertion as a claim that Article 17 of the parties' agreement constitutes a procedure within the meaning of § 7106(b)(2) of the Statute.

      The Arbitrator construed Article 17 as precluding the Agency from making noncompetitive reassignments of nonunit employees. The Authority has found that contractual requirements that agencies use competitive procedures in filling vacancies are not procedures under § 7106(b)(2) if the requirements "prevent management from considering other applicants . . . or using any other appropriate source" in actually "filling such vacancies." ACT I, 56 FLRA at 1048 (quoting ACT, Del. Chapter, 3 FLRA 57, 59 (1980)); see also NAGE, Local R14-52, 9 FLRA 1042, 1043-44 (1982) (citing NFFE, Local 1451, 3 FLRA 392, 393-94 (1980)). Consistent with this precedent, Article 17, as interpreted and applied by the Arbitrator, does not constitute a procedure under § 7106(b)(2).

      The Union, relying on ACT II -- the decision on reconsideration of ACT I -- contends that the restriction on the noncompetitive reassignment of the supervisor in this case is permissible because the supervisor was available for selection through competitive procedures under the parties' agreement. However, for the following reasons, we conclude that the Union's reliance on ACT II is misplaced.

      The Authority held in ACT I that a disputed provision was not a procedure because it restricted the agency to filling vacancies through competitive procedures. 56 FLRA at 1048. According to the Authority, a requirement that management use "competitive procedures -- not only as the initial, but also as the only source of candidates in some circumstances -- is not a . . . procedure." Id. The Authority stated that the provision [ v58 p413 ] did not "preserve management's right to ultimately select from a different source, including noncompetitive reassignment." Id.

      The union requested reconsideration of ACT I on the ground that the Authority's statement regarding the "different source" was in error because a "noncompetitive reassignment" is not a "source." ACT II, 57 FLRA at 53. The Authority denied the union's request, stating that the provision was not a procedure under § 7106(b)(2) "[w]hether or not noncompetitive reassignment procedures themselves constitute `sources[.]'" Id. at 54. The Authority emphasized that the provision precluded both the use of a particular procedure -- noncompetitive reassignment -- as well as "selection of the individuals who are available only through that procedure." Id.

      Contrary to the Union's claim, the Authority did not hold in ACT II that precluding noncompetitive reassignment is permissible unless reassignment candidates are not available through competitive procedures. In fact, the Authority emphasized that the disputed provision was not a procedure because, whether or not noncompetitive reassignment was a "source," the provision precluded both a particular procedure and particular individuals. The Authority also left undisturbed the statement in ACT I that requiring management to use competitive procedures "as the only source of candidates in some circumstances -- is not a . . . procedure." 56 FLRA at 1048. In this regard, whether or not particular individuals are available only through noncompetitive reassignments, there is no dispute that individuals available through that procedure constitute an appropriate source. See NFFE, Local 33, 47 FLRA 765, 773-74 (1993). As such, precluding noncompetitive reassignments has the direct effect of also precluding selection of the individuals who are available for noncompetitive reassignment.

      Based on the foregoing, we conclude that, whether or not the supervisor could have applied for the disputed position, the Arbitrator's interpretation and application of Article 17 as precluding the noncompetitive reassignment of the supervisor renders Article 17 unenforceable as a procedure unde § 7106(b)(2) . [n3]  Thus, we find that the award does not satisfy prong I of the BEP framework, and is deficient as contrary to § 7106 of the Statute. [n4] 

V.     Decision

      The award is set aside.