Veterans Administration Hospital, Dallas, Texas and American Federation of Government Employees, Local 2347 

 2 FLRA No. 9
 
 VETERANS ADMINISTRATION HOSPITAL,
 DALLAS, TEXAS
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2437
 
                                            FLRC No. 78A-120
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY FILLED A VACANCY FOR THE POSITION OF PAINTER, WG-9, FROM A
 CIVIL SERVICE CERTIFICATE OF ELIGIBLES WITHOUT POSTING THE VACANCY.  THE
 UNION CONTENDED THAT THE GRIEVANT AND OTHER INTERESTED ACTIVITY
 EMPLOYEES DID NOT KNOW OF THE VACANCY AND CONSEQUENTLY COULD NOT BID ON
 IT AND THAT THE GRIEVANT WAS QUALIFIED AS A PAINTER AND COULD HAVE
 FILLED THE POSITION.  A GRIEVANCE WAS FILED WHICH WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    ACCORDING TO THE ARBITRATOR, THE ISSUE BEFORE HIM WAS:
 
    DID THE HOSPITAL VIOLATE THE AGREEMENT IN FILLING A WG-9 PAINTER
 VACANCY WITHOUT ANNOUNCING
 
    THE VACANCY ON THE STATION?  IF THE ANSWER IS "YES" WHAT WILL BE THE
 REMEDY?
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED ARTICLE XI,
 SECTION 7(A) AND (C)(1) OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 /1/ BY NOT POSTING THE VACANCY SINCE ALL INTERESTED EMPLOYEES HAD THUS
 NOT BEEN GIVEN "FULL AND FAIR CONSIDERATION" FOR ADVANCEMENT.
 
    ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
 
    THE HOSPITAL WILL IMMEDIATELY OFFER TO:
 
    1.  VACATE THE WG-9 POSITION AND ORDER A NEW PERSONNEL ACTION FOR
 WG-9 PAINTER.
 
    2.  POST THE VACANCY FOR 10 CALENDAR DAYS ON 2 OFFICIAL BULLETIN
 BOARDS ON THE STATION AND
 
    ACCEPT APPLICATIONS FOR CONSIDERATION FROM THE EMPLOYEES THAT WERE ON
 THE STATION ON FEBRUARY
 
    26, 1978.
 
    3.  IF THERE ARE NOT 3 OR MORE HIGHLY QUALIFIED CANDIDATES ON THE
 PROMOTION CERTIFICATE,
 
    THE HOSPITAL MAY ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A CIVIL
 SERVICE CERTIFICATE OF
 
    ELIGIBLES AND MANAGEMENT MAY MAKE A SELECTION FROM THE COMBINED LIST
 OF HIGHLY QUALIFIED
 
    CANDIDATES ON THE PROMOTION CERTIFICATE, IF THERE ARE ANY, AND THE
 HIGHLY QUALIFIED CANDIDATES
 
    ON THE CIVIL SERVICE CERTIFICATE OF ELIGIBLES.
 
                     AGENCY'S APPEAL TO THE AUTHORITY
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
 PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
 APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT THE
 AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.  /2/ THE UNION FILED A
 BRIEF ON THE MERITS.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES PROVIDED:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
 THAT THE AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.  SINCE THE CIVIL
 SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
 CONCERNING THE MATTERS INVOLVED HEREIN, AND SINCE UNDER SECTION 902(B)
 OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST
 BE RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
 AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE
 SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE
 MATTERS INVOLVED HEREIN) AN INTERPRETATION OF THE RELEVANT CIVIL SERVICE
 COMMISSION REGULATIONS AS THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS
 CASE.  THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
 FOLLOWS:
 
    THIS CASE INVOLVED A GRIEVANCE OVER MANAGEMENT'S FAILURE TO POST A
 VACANCY ANNOUNCEMENT FOR
 
    A WG-9 PAINTER POSITION, IN ACCORD WITH A CONTRACT PROVISION.  THE
 ARBITRATOR FOUND THAT THE
 
    VETERANS ADMINISTRATION HAD VIOLATED THE CONTRACT PROVISION BY NOT
 POSTING , AND HAD FILLED
 
    THE POSITION BY REQUESTING A CERTIFICATE OF ELIGIBLES FROM THE CIVIL
 SERVICE COMMISSION AND
 
    SELECTING AN INDIVIDUAL FROM THE CERTIFICATE FOR THE POSITION.
 
    AT ISSUE HEREIN IS THE THREE-PART ARBITRATION AWARD REQUIRING THE
 VETERANS ADMINISTRATION
 
    TO:  (1) VACATE THE POSITION AND ORDER A NEW PERSONNEL ACTION TO FILL
 THE POSITION;  (2) POST A
 
    VACANCY ANNOUNCEMENT FOR THE POSITION SO VACATED IN ACCORDANCE WITH
 CONTRACTUAL
 
    PROVISIONS;  AND (3) "ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A
 CIVIL SERVICE CERTIFICATE
 
    OF ELIGIBLES" ONLY IF POSTING THE VACANCY YIELDS LESS THAN THREE
 HIGHLY QUALIFIED CANDIDATES,
 
    AND THEN SELECT OR NOT SELECT FROM THE COMBINED LISTS OF HIGHLY
 QUALIFIED CANDIDATES.
 
    FROM THE STANDPOINT OF CIVIL SERVICE COMMISSION RULES AND REGULATIONS
 IN EFFECT AT THE
 
    TIME, TWO ISSUES ARISE IN THIS CASE:  (1) WHETHER AS PART OF AN
 ARBITRATION AWARD IN A
 
    CHALLENGED PROMOTION ACTION AN EMPLOYEE MAY BE REMOVED FROM A
 POSITION IN ADVANCE OF OTHER
 
    CORRECTIVE ACTION TO BE TAKEN;  AND (2) WHETHER AN ARBITRATION AWARD
 MAY LIMIT THE USE OF A
 
    CIVIL SERVICE CERTIFICATE OF ELIGIBLES IN FILLING VACANCIES.  THESE
 ISSUES RELATE TO PART 1
 
    AND PART 3 OF THE ARBITRATOR'S AWARD, RESPECTIVELY.  THE PORTIONS OF
 PARTS 1 AND 2 OF THE
 
    ARBITRATOR'S AWARD WHICH ORDER THAT THE PROMOTION ACTION BE RERUN AND
 THAT MANAGEMENT FULFILL
 
    ITS CONTRACTUAL POSTING OBLIGATION, DO NOT CONFLICT WITH CIVIL
 SERVICE COMMISSION RULES OR
 
    REGULATIONS IN EFFECT AT THE TIME OF THE FILLING OF THE POSITION, OR
 OF THE AWARD.
 
    THE FIRST ISSUE, REGARDING WHETHER THE ARBITRATOR MAY ORDER THE
 POSITION HEREIN TO BE
 
    VACATED, MUST BE ANSWERED IN THE NEGATIVE.  FPM CHAPTER 335-6-4B
 STATES THAT AN ERRONEOUSLY
 
    PROMOTED EMPLOYEE "MAY BE RETAINED IN THE POSITION ONLY IF
 RECONSTRUCTION OF THE PROMOTION
 
    ACTION SHOWS THAT HE COULD HAVE BEEN SELECTED HAD THE PROPER
 PROCEDURE BEEN FOLLOWED AT THE
 
    TIME THE ACTION WAS TAKEN." AN EMPLOYEE, THEREFORE, SHOULD NOT BE
 REMOVED FROM A POSITION IN
 
    ADVANCE OF CORRECTIVE ACTION BEING TAKEN UNLESS IT HAS BEEN
 DETERMINED BY AN ARBITRATOR OR
 
    OTHER COMPETENT AUTHORITY THAT THE EMPLOYEE/INCUMBENT COULD NOT
 PROPERLY HAVE BEEN SELECTED
 
    FOR THE POSITION.  MANY CASES DECIDED BY THE FEDERAL LABOR RELATIONS
 COUNCIL REFLECT AND APPLY
 
    THIS WELL-ESTABLISHED PRINCIPLE BASED ON FPM REGULATIONS.  (DEFENSE
 MAPPING AGENCY,
 
    HYDROGRAPHIC CENTER, DEPARTMENT OF DEFENSE AND AFGE LOCAL 3407 FLRC
 75A-33;  ADJUTANT GENERAL,
 
    STATE OF NEW HAMPSHIRE AND GRANITE STATE CHAPTER, ASSOCIATION OF
 TECHNICIANS, FLRC
 
    76A-95;  COMMUNITY SERVICES ADMINISTRATION AND NATIONAL COUNCIL OF
 CSA LOCALS AFGE, FLRC
 
    76A-154.) IN THE IMMEDIATE CASE, THERE IS NO FINDING THAT THE
 INCUMBENT COULD NOT HAVE BEEN
 
    PROPERLY CONSIDERED FOR THE POSITION.  IN FACT, UNDER THE
 CIRCUMSTANCES OF THIS CASE, ANY SUCH
 
    FINDING WOULD HAVE VIOLATED APPLICABLE REGULATION, SPECIFICALLY CIVIL
 SERVICE RULE 7.1 WHICH
 
    MAINTAINED AGENCY DISCRETION IN THE FILLING OF VACANCIES AND
 PROVIDED:
 
    IN HIS DISCRETION, AN APPOINTING OFFICER MAY FILL ANY POSITION IN THE
 COMPETITIVE SERVICE
 
    EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL SERVICE REGISTER OR BY
 NON-COMPETITIVE
 
    SELECTION OF A PRESENT OR FORMER FEDERAL EMPLOYEE, IN ACCORDANCE WITH
 CIVIL SERVICE
 
    REGULATIONS.
 
    THUS, THE PART OF THE AWARD ORDERING THAT THE INCUMBENT BE REMOVED
 VIOLATED APPLICABLE
 
    CIVIL SERVICE COMMISSION RULES AND REGULATIONS.
 
    THE SECOND ISSUE RAISED HEREIN REGARDING WHETHER THE USE OF A
 CERTIFICATE OF ELIGIBLES MAY
 
    BE LIMITED, IS MORE COMPLEX.  IT WOULD APPEAR THAT, AS WRITTEN, THE
 ARBITRATION AWARD VIOLATES
 
    CIVIL SERVICE RULES AND REGULATIONS, AND THE QUESTION POSED IN THIS
 ISSUE THEREFORE MUST ALSO
 
    BE ANSWERED IN THE NEGATIVE.
 
    THE POSSIBLE CONFUSION WHICH EXISTS GOES TO THE PART OF THE
 ARBITRATION AWARD WHICH STATES
 
    THAT "IF THERE ARE NOT 3 OR MORE HIGHLY QUALIFIED CANDIDATES ON THE
 PROMOTION CERTIFICATE, THE
 
    HOSPITAL MAY ENLARGE THE AREA OF CONSIDERATION TO INCLUDE A CIVIL
 SERVICE CERTIFICATE OF
 
    ELIGIBLES . . . " WHILE IT IS NOT DIRECTLY STATED, THE ARBITRATOR
 APPEARS TO BE EQUATING THE
 
    USE OF A CERTIFICATE OF ELIGIBLES WITH ENLARGING THE AREA OF
 CONSIDERATION.  IF THE ARBITRATOR
 
    MEANT MERELY TO LIMIT THE AREA OF CONSIDERATION (REGARDING WHICH A
 CERTIFICATE OF ELIGIBLES
 
    HAS NOT RELEVANCE SINCE IT IS AN ADDITIONAL SOURCE OF CANDIDATES, NOT
 PART OF AN AREA OF
 
    CONSIDERATION, AND NEITHER IMPACTS UPON NOR IS IMPACTED BY THE AREA
 OF CONSIDERATION), HIS
 
    AWARD IN PART 3 WOULD NOT VIOLATE COMMISSION RULES AND REGULATIONS.
 IN OTHER WORDS, AREA OF
 
    CONSIDERATION IS A TERM OF ART WITH RESPECT TO FILLING POSITIONS FROM
 WITHIN.  THE SCOPE OF
 
    THE AREA OF CONSIDERATION MAY BE LIMITED OR EXPANDED BY CONTRACTUAL
 PROVISION.  RULE 7.1,
 
    CITED ABOVE, HOWEVER, WILL RETAIN TO MANAGEMENT THE RIGHT TO TURN TO
 ALL ALTERNATE SOURCES, IN
 
    THIS CASE A CERTIFICATE OF ELIGIBLES, /3/ TO FILL POSITIONS.  IF,
 HOWEVER, THROUGH
 
    MISUNDERSTANDING OR INTENT, THE ARBITRATOR MEANT TO LIMIT
 MANAGEMENT'S RIGHT TO USE ALTERNATE
 
    STAFFING METHODS IN MAKING SELECTIONS, PART 3 OF THE AWARD CLEARLY
 VIOLATES CIVIL SERVICE
 
    RULES AND REGULATIONS.
 
                                CONCLUSION
 
    BASED UPON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE FIND THAT THE PORTION OF PART 1 OF THE ARBITRATOR'S AWARD
 WHICH DIRECTS THE ACTIVITY TO "(V)ACATE THE WG-9 POSITION" VIOLATES
 APPROPRIATE REGULATIONS AND THEREFORE MUST BE SET ASIDE.  ACCORDINGLY,
 PURSUANT TO SECTION 2411.37(B) OF THE RULES OF PROCEDURE, WE MODIFY PART
 1 OF THE ARBITRATOR'S AWARD BY STRIKING THE FOLLOWING WORDS:  "VACATE
 THE WG-9 POSITION AND." AS SO MODIFIED, PART 1 OF THE AWARD IS
 SUSTAINED.
 
    IN ADDITION, BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF
 PERSONNEL MANAGEMENT AND PURSUANT TO SECTION 2411.37(B) OF THE RULES OF
 PROCEDURE, WE MODIFY PART 3 OF THE ARBITRATOR'S AWARD BY ADDING THERETO
 THE FOLLOWING SENTENCE:  "NOTHING IN THIS AWARD SHALL LIMIT THE
 HOSPITAL'S RIGHT TO USE ALTERNATE STAFFING METHODS IN MAKING SELECTION."
 AS SO MODIFIED, PART 3 OF THE AWARD IS SUSTAINED.  /4/ THE STAY
 PREVIOUSLY GRANTED IS VACATED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ACCORDINGLY TO THE ARBITRATOR, ARTICLE XI, SECTION 7(A) AND
 (C)(1) PROVIDES, IN RELEVANT PART:
 
    ARTICLE XI
 
    7.  PROMOTIONS:
 
    A.  POLICY:  THE UNION AND THE HOSPITAL AGREE THAT THE PURPOSES AND
 INTENT OF THE PROMOTION
 
    POLICY ARE TO ENSURE THAT EMPLOYEES OF THE VA ARE GIVEN FULL AND FAIR
 CONSIDERATION FOR
 
    ADVANCEMENT AND TO ENSURE SELECTION FROM AMONG THE BEST QUALIFIED
 CANDIDATES.
 
   .          .          .          .
 
 
    C.  PROMOTION ANNOUNCEMENTS
 
    (1) IN ORDER TO ASSURE ALL INTERESTED EMPLOYEES CONSIDERATION FOR
 PROMOTION, THE HOSPITAL
 
    SHALL POST LOCAL VACANCIES ON THE TWO OFFICIAL BULLETIN BOARDS FOR
 TEN CALENDAR DAYS.
 
    /2/ THE AGENCY REQUESTED, AND THE AUTHORITY GRANTED, PURSUANT TO
 SECTION 2411.47(F) OF THE RULES OF PROCEDURE, A STAY OF THE AWARD
 PENDING DETERMINATION OF THE APPEAL.
 
    /3/ IN ADDITION TO RULE 7.1, FPM CHAPTER 330, SUBCHAPTER 1-1 STATED,
 IN PART:
 
    AN APPOINTING OFFICER MAY CHOOSE THE METHOD TO BE USED FOR FILLING A
 COMPETITIVE POSITION
 
    EXCEPT WHEN THAT CHOICE IS LIMITED BY STATUTE OR THE CIVIL SERVICE
 REGULATIONS.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.