Naval Plant Representative Office, Dallas, Texas and American Federation of Government Employees, Local Union 3548

 



[ v02 p308 ]
02:0308(38)AR
The decision of the Authority follows:


 2 FLRA No. 38
 
 NAVAL PLANT REPRESENTATIVE OFFICE,
 DALLAS, TEXAS
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL UNION 3548
 
                                            FLRC No. 78A-157
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER AROSE AS THE RESULT
 OF AN ANNOUNCEMENT POSTED BY THE NAVAL PLANT REPRESENTATIVE OFFICE (THE
 ACTIVITY) FOR A VACANCY IN A GRADE GS-12 POSITION.  THE GRIEVANT BID ON
 THE VACANCY AND HE WAS RATED AS HIGHLY QUALIFIED ALONG WITH THREE OTHER
 EMPLOYEES.  THE GRIEVANT FILED A GRIEVANCE WHEN HE WAS NOT SELECTED FOR
 THE POSITION.  AS PART OF HIS GRIEVANCE, THE GRIEVANT CLAIMED THAT THE
 SELECTION FOR THE POSITION HAD BEEN IMPROPER BECAUSE OF THE SELECTING
 OFFICIAL'S PARTIALITY IN FAVOR OF THE EMPLOYEE WHO WAS PROMOTED.  THE
 GRIEVANT ALLEGED THAT THE SELECTING OFFICIAL HAD SOLICITED AND ACCEPTED
 GRATUITIES AND FAVORS FROM THIS EMPLOYEE TO THE EXTENT THAT THE OFFICIAL
 COULD NOT MAKE A PROPER SELECTION.  THUS, THE GRIEVANT CLAIMED THAT HIS
 PROMOTIONAL OPPORTUNITIES HAD BEEN PREJUDICED BY THIS RELATIONSHIP
 BETWEEN THE SELECTING OFFICIAL AND THE SELECTED EMPLOYEE.  THE ACTIVITY
 FORMALLY INVESTIGATED THE GRIEVANT'S ALLEGATIONS AND EXONERATED FROM ANY
 MISCONDUCT BOTH THE SELECTING OFFICIAL AND THE EMPLOYEE SELECTED.
 THEREAFTER, THE GRIEVANT WAS REMOVED FROM THE FEDERAL SERVICE FOR
 "(K)NOWINGLY MAKING FALSE AND MALICIOUS STATEMENTS WITH INTENT TO HARM
 OR DESTROY THE REPUTATION OF OTHERS."
 
    THE GRIEVANCE DISPUTING THE SELECTION WAS ULTIMATELY SUBMITTED TO
 ARBITRATION WITH THE UNION REQUESTING THE ARBITRATOR TO FIND THAT THE
 ACTIVITY HAD VIOLATED THE PARTIES' NEGOTIATED AGREEMENT AND THE
 ACTIVITY'S MERIT PROMOTION PLAN IN ITS SELECTION FOR THE POSITION IN
 QUESTION.  THE UNION ALSO REQUESTED THE ARBITRATOR TO FIND THAT THE
 GRIEVANT WAS UNJUSTLY REMOVED FORM THE FEDERAL SERVICE.  IN THIS RESPECT
 THE ARBITRATOR RULED THAT THE CIVIL SERVICE COMMISSION WAS THE PROPER
 FORUM TO DISPUTE THE REMOVAL AND THAT HE WAS WITHOUT AUTHORITY TO RULE
 ON THE JUST CAUSE OF THE GRIEVANT'S REMOVAL.  HOWEVER, THE ARBITRATOR
 ALSO CONCLUDED THAT THERE WAS "NO DOUBT THAT THE REMOVAL OF THE GRIEVANT
 WAS DUE TO THE WORDS HE USED IN HIS WRITTEN GRIEVANCE, AND THERE IS
 LANGUAGE IN THE AGREEMENT AS WELL AS THE EXECUTIVE ORDER THAT GOVERNS
 THE RELATIONSHIP BETWEEN THE PARTIES WHEN AN EMPLOYEE FILES A
 GRIEVANCE." THUS, THE ARBITRATOR STATED THE ISSUES TO BE WHETHER THE
 ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND REGULATIONS IN ITS
 SELECTION AND WHETHER THE ACTIVITY VIOLATED THE AGREEMENT, THE ORDER, OR
 REGULATIONS IN ITS DISCIPLINE OF THE GRIEVANT FOR THE WORDS HE USED IN
 HIS WRITTEN GRIEVANCE.
 
                            ARBITRATOR'S AWARD
 
    WITH RESPECT TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE
 SELECTING OFFICIAL HAD THE RIGHT TO SELECT ANY NAME FROM THE HIGHLY
 QUALIFIED LIST AND CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE THE
 AGREEMENT OR APPLICABLE REGULATIONS IN ITS SELECTION IN THIS CASE.  WITH
 RESPECT TO THE SECOND ISSUE, THE ARBITRATOR WAS OF THE OPINION THAT
 FEDERAL SECTOR ARBITRATION IS A CREATURE OF THE FEDERAL GOVERNMENT AND
 CONSEQUENTLY COMMUNICATIONS MADE IN THE COURSE OF A GRIEVANCE PROCEDURE
 ARE ABSOLUTELY PRIVILEGED.  ALTHOUGH THE ARBITRATOR FOUND ON THIS BASIS
 THAT THE ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND THE EXECUTIVE
 ORDER IN DISCIPLINING THE GRIEVANT FOR THE WORDS HE USED IN HIS WRITTEN
 GRIEVANCE, THE ARBITRATOR HELD THAT HE HAD NO AUTHORITY TO RULE ON
 WHETHER THE GRIEVANT SHOULD BE RETURNED TO HIS JOB SINCE THAT AUTHORITY
 IS RESERVED TO THE CIVIL SERVICE COMMISSION.
 
    THEREFORE, AS HIS AWARD THE ARBITRATOR FOUND AND ORDERED AS FOLLOWS:
 
    1.  THERE WAS NO SUBSTANTIAL AND MATERIAL VIOLATION OF THE AGREEMENT
 WHEN THE EMPLOYER
 
    SELECTED (THE EMPLOYEE THAT IT DID) FOR THE PROMOTION . . .
 
    2.  THE EMPLOYER VIOLATED THE AGREEMENT AND THE EXECUTIVE ORDER WHEN
 THE EMPLOYER REMOVED
 
    THE GRIEVANT FROM SERVICE FOR THE WORDS USED IN HIS GRIEVANCE.  THE
 EMPLOYER WILL IMMEDIATELY
 
    OFFER TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS REMOVAL.
 
                            APPEAL OF THE AWARD
 
    BOTH THE AGENCY AND THE UNION FILED PETITIONS 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.
 
    ON MAY 21, 1979, THE AUTHORITY DENIED THE UNION'S PETITION FOR REVIEW
 OF PARAGRAPH 1 OF THE ARBITRATOR'S AWARD BECAUSE THE PETITION FAILED TO
 MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE AMENDED RULES FOR
 ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD.  /1/ AT THE SAME TIME, PURSUANT TO SECTION 2411.32 OF THE AMENDED
 RULES, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR
 AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT PARAGRAPH 2
 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  /2/ NEITHER
 PARTY FILED A BRIEF.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (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 GROUNDS 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 PARAGRAPH 2 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL.  SINCE THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR
 PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED IN THIS CASE,
 AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT /3/ 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 CIVIL SERVICE
 COMMISSION REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD IN THIS
 CASE.  THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
 FOLLOWS:
 
    THE GRIEVANT IN THIS CASE ALLEGED INITIALLY THAT THE AGENCY VIOLATED
 THE
 
    PARTIES' NEGOTIATED AGREEMENT BY PROMOTING AN EMPLOYEE OTHER THAN THE
 GRIEVANT WHEN FILLING A
 
    POSITION.  SPECIFICALLY, THE GRIEVANT ALLEGED THAT THE SELECTION WAS
 IMPROPER BECAUSE THE
 
    SELECTING OFFICIAL HAD ACCEPTED GRATUITIES AND FAVORS FROM THE
 EMPLOYEE WHO WAS SELECTED WHICH
 
    THEREBY UNFAIRLY