United States, Department of the Army Corps of Engineers, Portland District (Agency) and United Power Trades Organization (Union)

[ v61 p599 ]

61 FLRA No. 115

UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
PORTLAND DISTRICT
(Agency)

and

UNITED POWER
TRADES ORGANIZATION
(Union)

0-AR-3961

_____

DECISION

May 16, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William F. Reeves 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 Agency filed a supplemental submission to the Union's opposition and the Union filed a supplemental submission to the Agency's submission.

      In the award, the Arbitrator determined that the Agency could choose an applicant from the Student Career Experience Program (SCEP) for a training program only if no other appropriate source applicants were available. For the reasons that follow, we grant the Agency's contrary to regulation exception and set the award aside.

II.      Background and Arbitrator's Award

      In February of 1998 the parties entered into a Regional Hydropower Trainee Program Agreement (MOU). Award at 4. Under the terms of this MOU, the parties agreed that the apprenticeship training program (training program) "shall comply with the requirements of ER 1130-2-510 and EP 1130-2-510." [n1]  The ER, specifically Chapter 5, 1130-2-510, establishes the training program for hydropower trainees. As relevant here, the ER states that "[s]pecific guidance on training procedures, tests, schedules, and curriculum are provided in Chapter 5 of EP 1130-2-510." See Chapter 5.2 of ER 1130-2-510, Award at 4. Chapter 5 of EP 1130-2-510 states in pertinent part:

5.1. Purpose. This chapter establishes procedures for the Corps of Engineers apprenticeship training program for hydropower trainees for advancement to journeyman status as power plant operators, mechanics, electricians, or electronic mechanics. Guidance for establishing training beyond the apprenticeship program is also included.
. . . .
5.3 Selection of Trainees. The vacancies will be filled from any appropriate source, e.g., OPM register, merit promotion action, reassignments, change to lower grade, Veterans' Readjustment Act, Handicap authority, etc. Single-Agency Qualification Standard for Hydroelectric Power Plant Trainee (Army) has been issued by the U.S. Civil Service Commission. Physical requirements are included in the above standard. All candidates, including current Federal employees, must meet these standards. Human Resources will prepare a list of eligible candidates for selection by the MSC Commander or his/her designate.

Award at 4-5.

      The Union filed a grievance alleging a violation of the MOU and OPM Regulations based on the Agency's failure to require all trainees to meet OPM testing requirements. The matter was not resolved and went to arbitration. The parties submitted a stipulated record to the Arbitrator, and briefs, instead of a hearing.

      The Arbitrator noted that the dispute centers on whether the Agency can consider candidates in the SCEP as a source to fill vacancies in the training program. Accordingly, the Arbitrator framed the issue in pertinent part as follows:

[D]oes the Agency violate the Regional Hydropower Trainee Program Agreement by not requiring an SCEP participant to pass the OPM standard test before employing the SCEP participant [ v61 p600 ] as a trainee in the Power Plant Training Program?
If so, what is the proper remedy?

Award at 6.

      The Arbitrator found that under the MOU, applicants for the training program are required to meet the "Single-Agency Qualification Standard." Id. at 13. The Arbitrator determined that in order to meet the Single-Agency Qualification Standard for the training program, a candidate must take and pass the Office of Personnel Management (OPM) Trades Apprenticeship Examination. Id. at 5, 15. However, the Arbitrator also noted that under OPM regulations, SCEP participants are not required to pass such an exam in order to qualify for these hydropower trainee positions. See 5 C.F.R. § 213.3202(b)(15). Accordingly, the Arbitrator found the MOU inconsistent with OPM regulations to the extent that the MOU requires testing of SCEP participants.

      In addressing this inconsistency, the Arbitrator fashioned an award that, in his view, required the Agency to comply with the MOU without violating OPM regulations. More particularly, the Arbitrator found that the "Agency can avoid creating a conflict between the [MOU] and the CFR [OPM regulations] simply by selecting . . . trainees from an `appropriate source' other than the SCEP." Award at 14. He further determined that where the only appropriate source available to fill a vacancy in the training program was a SCEP participant, then the Agency could fill its trainee position with the SCEP participant without requiring the SCEP applicant to pass OPM's test. Id. The Arbitrator concluded by stating that "the Agency has failed to prove it is precluded in all cases from following the terms of the [MOU] by 5 CFR 213.3202(b)(15)." Id. In reaching that conclusion, the Arbitrator noted specifically that the Agency "did not argue the application or effect of 5 USC § 7106(a)(2)(C)(ii)." Id. n.10.

III.      Positions of the Parties

A. Agency's Exceptions

      The Agency argues that the "preclusion of an appropriate source . . . is clearly and indisputably an interference with a reserved management right that, under 5 U.S.C. § 7106(a), cannot be bargained away." Exceptions at 5 (citing Air Force Logistics Command, AFLC Hq., AFLC/DPCE, 32 FLRA 261, 266 (1988) (emphasis in original)). With respect to the issue of whether it raised its § 7106(a)(2)(C)(ii) claim before the Arbitrator, the Agency states:

On page 14, in footnote 10, the Arbitrator acknowledges that section 7106 may affect the viability of his Award. However, he stated that "I specifically have not addressed whether the Agency's right to make a selection from an appropriate source" under section 7106 "can be affected by" an agreement. His recognition that the [S]tatute is potentially applicable, while declining to discuss it, is a remarkable abdication of his legal duties. FLRA law is clear that arbitration awards will be reversed when they impair reserved rights. . . . The Award is contrary to law, the Arbitrator recognized the issue but declined to address it, and the Award must be reversed.

Exceptions at 6 n.7.

      Additionally, the Agency argues that the award is contrary to 5 C.F.R. § 213.3202(b)(11) and (15). In this respect, the Agency argues that the regulation does not "allow excluding SCEP participants from selection as power plant trainees." Exceptions at 10. It argues that the award would place SCEP participants as "an acceptable source only as a last resort" and, thereby, would "take away a key component of a government-wide program - the ability to noncompetitively convert from the SCEP to a term, career-conditional or career position." Id. 10, 11. Accordingly, the Agency contends that the award, by limiting its ability to place SCEP participants in trainee positions, is contrary to 5 C.F.R. § 213.3202(b)(11) and (15).

      Moreover, the Agency argues that the Arbitrator's interpretation of the EP is inconsistent with its own interpretation. It contends that the EP was "effectively revise[d]" by qualification standards it published in 1997 and 2002, and states that "Army units do not get to pick which qualification standards to apply[.]" Exceptions at 11. It contends that it has interpreted the EP not to require such testing for SCEP participants because their education and job training already surpasses what is necessary under the OPM test. Additionally, the Agency argues that the EP only requires applicants to meet the physical requirements of the Single-Agency Qualification Standard, not any test requirements. Id. at 12.

      Furthermore, the Agency argues that the Arbitrator has precluded it from hiring SCEP participants even if they have passed the OPM Trades Apprenticeship Examination. Exceptions at 13. Accordingly, the Agency argues that "[s]ince the Award fails to allow consideration of candidates who qualified even as the qualifications are defined in the Award, except as a last [ v61 p601 ] resort, the Award is internally inconsistent and contrary to law." Id. at 13.

      Finally, the Agency submitted a reply after the Union had filed its opposition. In the reply, the Agency generally argues that the issue of "the right `to make selections for appointments from any appropriate source'" was raised below. Agency's Supplemental Submission at 1.

B.      Union's Opposition

      The Union requests that the "Authority strike or ignore" the Agency's reply to its opposition. Union's Supplemental Submission at 1. It contends that Authority Regulations do not allow for an "opposition to an opposition." Id. In the alternative, the Union requests the opportunity to respond to the Agency's submission. Id. at 2.

      The Union argues that the Agency raised for the first time in its exceptions a claim that the Arbitrator's award affects its right to make selections under § 7106(a)(2)(C). It argues that this issue should have been presented to the Arbitrator during the hearing, not for the first time on exception, and that the Authority should not consider the argument at this stage in the proceeding. Opposition at 3 (citing 5 C.F.R. 2429.5; United States Dep't of Veterans Affairs, Medical Ctr., Coatesville, Pa., 56 FLRA 829, 834 (2000)). The Union also argues that the Agency never raised the issue that its EP was amended by policy changes to the Arbitrator and, as such, this argument is barred by 5 C.F.R. § 2429.5. Opposition at 6.

      The Union argues that under 5 C.F.R. § 213.3202(b)(15) "students may be evaluated by either agency-developed standards or by the OPM qualification requirements for the target position." Opposition at 5. It contends that the Agency has determined that it will require applicants to pass an OPM test under its own standards, not OPM requirements. Id. at 5-6. Accordingly, it contends that the Agency has set up its own standards consistent with 5 C.F.R. § 213.3202(b)(15). It also argues that to the extent the Agency contends the MOU was misinterpreted, the Arbitrator is entitled to deference in his interpretation of the parties' agreement. Id. (citing United States Dep't of the Army, United States Army Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 49 FLRA 950 (1994)).

IV.     Preliminary Issues

A.      The Authority Will Not Review the Agency's Supplemental Submission

      The Authority's Regulations do not provide for the filing of supplemental submissions. However, § 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. See, e.g., National Association of Government Employees, Local R3-77, 59 FLRA 937, 940 (2004); AFGE, Local 2004, 55 FLRA 6, 9 (1998).

      The Agency's supplemental submission challenges the Arbitrator's statement that:

The Agency did not argue the application or effect of 5 USC § 7106(a)(2)(C)(ii). Thus, I specifically have not addressed whether the Agency's right to make a selection from an appropriate source (including the SCEP) can be affected by the application, or interpretation, of a provision in the CBA.

Award at 14 n.10.

      As the Agency's supplemental submission challenges a portion of the award, the Agency had the opportunity to fully address this issue when it filed its exceptions. To the extent the Authority has granted leave to file additional submissions under § 2429.26, we note that the Authority has done so only in circumstances where issues were first raised after a party had submitted its brief to an arbitrator. See, e.g., Cong. Research Employees Ass'n, IFPTE, Local 75, 59 FLRA 994, 999 (2004). Here, as the Union's opposition "does not raise [new] matters that the Agency did not have the opportunity to address in its exceptions[,]" the Agency should have raised this argument in its exceptions. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 52 FLRA 622, 625 (1996). Accordingly, review of the Agency's supplemental submission is denied. [ v61 p602 ]

B.      The Agency's Management's Rights Argument is Barred by 5 C.F.R. § 2429.5. [n2] 

      The Agency does not dispute that it did not raise to the Arbitrator any arguments regarding its rights under § 7106(a)(2)(C)(ii). See, e.g., Award at 14 n.10. In addition, the Agency does not claim that it raised this matter before the Arbitrator. As the Agency failed to raise this issue before the Arbitrator, we dismiss this exception pursuant to 5 C.F.R. § 2429.5. United States Dep't of Transportation, FAA, 61 FLRA 54, 56 (2005).

V.     Analysis and Conclusion

The Award Is Contrary To Regulation

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      The Agency argues that the Arbitrator's decision to limit its selection of SCEP participants for a trainee position is contrary to 5 C.F.R. § 213.3202(b)(11) and (15). For the following reasons, we agree that the award is contrary to regulation.

      At the outset, we reject the Union's claim that that the award does not enforce an Agency-developed standard as the Agency regulation recognizes that the standard was issued by the "U.S. Civil Service." Award at 4; EP 1130-2-510, § 5-3. Moreover, OPM regulations require that "each agency shall comply with the qualification standards and regulations" issued by OPM as well as the "provisions of any agreement develop[ed] between OPM and the agency in connection with delegation of a specific authority." 5 C.F.R. § 250.101. Here, as there is no evidence that the Agency has been delegated specific authority, we reject the Union's argument.

      Additionally the award directly conflicts with OPM Regulation. In this respect, despite the fact that 5 C.F.R. § 213.3202(b)(15) states "[a]ny OPM test requirements are waived" for SCEP participants, the award dictates that the Agency must hire from any other appropriate source before considering SCEP candidates. As the OPM regulation places SCEP candidates on an equal footing with other appropriate source candidates, the Arbitrator's award, by imposing a condition -- the absence of a candidate from other appropriate sources -- is contrary to regulation.

VI.      Decision  [n3] 

      The Agency's supplemental submission is dismissed. The Agency's contrary to regulation exception is granted and the award is set aside.



Footnote # 1 for 61 FLRA No. 115 - Authority's Decision

   The parties do not identify what the terms "ER" and "EP" signify, although it is apparent that the terms refer to certain Agency regulations or publications. See, e.g., Opposition at 2.


Footnote # 2 for 61 FLRA No. 11