American Federation of Government Employees, Local 2814 (Union) and Federal Railroad Administration, Department of Transportation (Activity) 

 3 FLRA No. 21
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2814
 Union
 
 and
 
 FEDERAL RAILROAD ADMINISTRATION,
 DEPARTMENT OF TRANSPORTATION
 Activity
 
                                            FLRC NO. 78A-104
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
 REVIEW OF THE AWARD OF ARBITRATOR JACOB SEIDENBERG FILED WITH THE
 FEDERAL LABOR RELATIONS COUNCIL.  /1/
 
    ACCORDING TO THE AWARD, THE GRIEVANT WAS HIRED AS A MANAGEMENT
 ANALYST AT THE GRADE LEVEL OF GS-13.  THEREAFTER, HE RECEIVED ADDITIONAL
 DUTIES AND RESPONSIBILITIES AND REQUESTED THAT HIS POSITION DESCRIPTION
 BE AMENDED TO REFLECT THESE ADDITIONAL DUTIES.  AS A RESULT OF THIS
 REQUEST, A DESK AUDIT WAS CONDUCTED OF THE GRIEVANT'S POSITION FROM
 WHICH IT WAS FOUND THAT THE GRIEVANT WAS PERFORMING DUTIES AT A GRADE
 LEVEL OF GS-14.  THE ACTIVITY DETERMINED THAT A NEW POSITION AT THE
 GS-14 GRADE LEVEL EXISTED.  THE ACTIVITY ALSO DETERMINED THAT THIS NEW
 POSITION HAD RESULTED FROM PLANNED MANAGEMENT ACTION AND CONSEQUENTLY
 WAS REQUIRED TO BE FILLED THROUGH COMPETITIVE PROCEDURES.  ALTHOUGH THE
 GRIEVANT WAS TEMPORARILY PROMOTED TO THE POSITION DURING THE SELECTION
 PROCESS, HE WAS NOT SELECTED FOR THE POSITION AND THEREAFTER WAS
 REASSIGNED TO ANOTHER POSITION AT GS-13.
 
    THE GRIEVANT FAILED A GRIEVANCE PROTESTING THE FILLING OF THE GS-14
 POSITION UNDER COMPETITIVE PROCEDURES.  HE CONTENDED THAT HE WAS
 ENTITLED TO A NONCOMPETITIVE CAREER PROMOTION UNDER THE FEDERAL
 PERSONNEL MANUAL BECAUSE THE GS-14 POSITION WAS THE RESULT OF AN
 ACCRETION OF ADDITIONAL DUTIES AND RESPONSIBILITIES THAT WAS NOT THE
 RESULT OF PLANNED MANAGEMENT ACTION.  THE GRIEVANCE WAS ULTIMATELY
 SUBMITTED TO ARBITRATION ON THE FOLLOWING STIPULATED ISSUE:
 
    WAS THE POSITION OF GS-14 MANAGEMENT ANALYST ADVERTISED UNDER FRA
 ANNOUNCEMENT NO. 77-212MM
 
    THE RESULT OF PLANNED MANAGEMENT ACTION?
 
    IN ITS POST-HEARING BRIEF SUBMITTED TO THE ARBITRATOR, THE ACTIVITY
 ELABORATED ON THIS ISSUE.  IT EXPLAINED THAT THE ARBITRATOR WAS TO
 RESOLVE "WHETHER OR NOT THE SET OF CIRCUMSTANCES PRESENTED BY THE
 PARTIES FITS INTO THE CATEGORY OF 'ACCRETION' OR 'PLANNED MANAGEMENT
 ACTION.'" THE ACTIVITY ALSO STATED THAT:
 
    IF THE ARBITRATOR RESOLVES THE ISSUE IN FAVOR OF "ACCRETION," THEN
 THE GRIEVANT WAS DUE
 
    CAREER PROMOTION.  IF THE ARBITRATOR FINDS IN FAVOR OF "PLANNED
 MANAGEMENT ACTION," THEN
 
    MANAGEMENT WAS CORRECT IN USING COMPETITIVE PROMOTION PROCEDURES.
 
    THE ARBITRATOR FOUND THAT THE GRIEVANT'S ORIGINAL POSITION HAD BEEN
 UPGRADED THROUGH THE ACCRETION OF ADDITIONAL DUTIES AND RESPONSIBILITIES
 THAT WAS NOT THE RESULT OF PLANNED MANAGEMENT ACTION AND THAT THE
 GRIEVANT WAS ENTITLED TO A NONCOMPETITIVE CAREER PROMOTION.  THEREFORE,
 HE ORDERED THE GRIEVANT RETROACTIVELY PROMOTED WITH BACKPAY TO THE GS-14
 MANAGEMENT ANALYST POSITION AS OF THE DATE THAT IT WAS OFFICIALLY
 CLASSIFIED.
 
    AS PREVIOUSLY STATED, THE AGENCY FILED A PETITION FOR REVIEW OF THE
 ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL.  THE
 COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW ON THE AGENCY'S
 EXCEPTIONS THAT THE AWARD VIOLATES APPROPRIATE REGULATION, SPECIFICALLY
 THE FEDERAL PERSONNEL MANUAL, AND VIOLATES THE BACK PAY ACT OF 1966 (5
 U.S.C.  5596).  THE COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY
 OF THE AWARD PENDING DETERMINATION OF THE APPEAL. THIS CASE WAS PENDING
 BEFORE THE COUNCIL ON DECEMBER 31, 1978.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE 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 FEDERAL LABOR RELATIONS COUNCIL, 5
 C.F.R.PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THIS CASE EXCEPT
 THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
 WORK "COUNCIL" APPEARS IN SUCH RULES.  SECTION 2411.37(A) OF THE AMENDED
 RULES 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.
 
    IN ACCORDANCE WITH ESTABLISHED PRACTICE, THE COUNCIL HAD REQUESTED
 FROM THE CIVIL SERVICE COMMISSION ITS INTERPRETATION OF APPLICABLE LAW
 AND CIVIL SERVICE REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD
 IN THIS CASE.  THE OFFICE OF PERSONNEL MANAGEMENT (OPM) (THE SUCCESSOR
 AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE MATTERS)
 REPLIED IN RELEVANT PART AS FOLLOWS:
 
    THE BASIC FACTS IN THIS CASE ARE AS FOLLOWS:  THE GRIEVANT HAD BEEN
 HIRED IN 1975 AS A GS-13 MANAGEMENT ANALYST.  THE GRIEVANT LATER
 RECEIVED ADDITIONAL DUTIES AND RESPONSIBILITIES FOR WHICH HE REQUESTED
 AN AMENDMENT OF HIS ORIGINAL POSITION DESCRIPTION.  A DESK AUDIT OF THE
 GRIEVANT'S POSITION WAS CONDUCTED IN 1977 WHICH REVEALED THAT HE WAS
 PERFORMING DUTIES AT THE GS-14 LEVEL.  THE AGENCY SUBSEQUENTLY DECIDED
 TO FILL THE GS-14 POSITION UNDER COMPETITIVE PROMOTION PROCEDURES.
 MEANWHILE, THE GRIEVANT WAS REASSIGNED TO A NEW GS-13 MANAGEMENT ANALYST
 POSITION, ALTHOUGH HE WAS TEMPORARILY PROMOTED TO THE GS-14 POSITION
 UNTIL IT WAS PERMANENTLY FILLED.
 
    AT THE ARBITRATION, THE GRIEVANT ALLEGED THAT THE AGENCY IMPROPERLY
 DENIED HIM A CAREER PROMOTION TO THE POSITION OF GS-14 MANAGEMENT
 ANALYST AS REQUIRED BY THE FEDERAL PERSONNEL MANUAL /2/ AND APPLICABLE
 AGENCY REGULATIONS.  SPECIFICALLY, THE GRIEVANT AND THE UNION ALLEGED
 THAT SINCE HIS FORMER GS-13 POSITION HAD BEEN RECONSTITUTED IN THE
 HIGHER GRADE DUE TO THE ACCRETION OF ADDITIONAL DUTIES AND NOT DUE TO
 PLANNED MANAGEMENT ACTION, HE WAS ENTITLED TO A NONCOMPETITIVE CAREER
 PROMOTION TO THE POSITION OF GS-14 MANAGEMENT ANALYST PURSUANT TO FPM
 CHAPTER 335, SUBCHAPTER 4-2.
 
    THE ARBITRATOR FOUND THAT THE GRIEVANT'S ORIGINAL POSITION HAD BEEN
 UPGRADED THROUGH THE ACCRETION OF ADDITIONAL DUTIES AND
 RESPONSIBILITIES, RATHER THAN AS THE RESULT OF PLANNED MANAGEMENT
 ACTION.  THE ARBITRATOR CONCLUDED THAT THE AGENCY HAD IMPROPERLY DENIED
 THE GRIEVANT A NONCOMPETITIVE CAREER PROMOTION TO WHICH HE WAS ENTITLED
 BY FPM CHAPTER 335, SUBCHAPTER 4-2D.  ACCORDINGLY, HE ORDERED THE
 GRIEVANT PROMOTED TO THE POSITION OF GS-14 MANAGEMENT ANALYST
 RETROACTIVE TO THE DATE OF THE DESK AUDIT, WITH APPROPRIATE BACKPAY.
 
    IF, AS THE GRIEVANT CLAIMS, HE WAS ENTITLED TO A NONCOMPETITIVE
 PROMOTION, HIS REASSIGNMENT BY THE AGENCY TO ANOTHER GS-13 POSITION,
 OTHER THAN FOR REASONS UNRELATED TO THE UPGRADING OF THE POSITION, WOULD
 CONSTITUTE A REDUCTION-IN-RANK.  HOWEVER, UNLIKE THE COUNCIL'S DECISION
 IN SCOTT AFB, /3/ THIS CASE DID NOT INVOLVE AN UPGRADING WHICH OCCURRED
 WITHOUT A SIGNIFICANT CHANGE IN DUTIES AND RESPONSIBILITIES FOR WHICH AN
 AGENCY MUST PROVIDE AN EXCEPTION TO COMPETITIVE PROMOTION PROCEDURES TO
 ALLOW A PROMOTION UNDER FPM CHAPTER 335, SUBCHAPTER 4-3B.  RATHER, FPM
 SUPPLEMENT 752-1, S-1-4C(2) PROVIDES THAT A REDUCTION-IN-RANK DOES NOT
 INCLUDE:
 
    REASSIGNMENT FROM A POSITION WHICH IS KNOWN TO WARRANT UPGRADING . .
 . WHEN THE UPGRADING
 
    IS THE RESULT OF THE ADDITION OF NEW DUTIES-- I.E., WHEN THERE IS A
 SIGNIFICANT CHANGE IN JOB
 
    CONTENT.
 
    IN THIS CASE, THE ARBITRATOR SPECIFICALLY FOUND THAT THE GRIEVANT'S
 ORIGINAL GS-13 POSITION HAD BEEN UPGRADED BY THE ADDITION OF NEW DUTIES.
  THUS, IT WAS NOT A REDUCTION IN RANK FOR THE AGENCY TO REASSIGN THE
 GRIEVANT TO ANOTHER GS-13 POSITION FOR WHICH HE WAS QUALIFIED.
 
    FPM CHAPTER 335, SUBCHAPTER 4-2D., ON WHICH THE ARBITRATOR RELIED IN
 HIS OPINION AND AWARD IN THIS CASE, PROVIDES IN PERTINENT PART, AS
 FOLLOWS:
 
    (1) AN AGENCY MAY MAKE A CAREER PROMOTION OF AN EMPLOYEE WHOSE
 POSITION IS RECONSTITUTED IN
 
    A HIGHER GRADE BECAUSE OF THE ACCRETION OF ADDITIONAL DUTIES AND
 RESPONSIBILITIES IF THE
 
    ACCRETION WAS NOT THE RESULT OF PLANNED MANAGEMENT ACTION.
 
    AS A GENERAL RULE, THIS PROVISION OF THE FPM CANNOT BE THE BASIS FOR
 A REQUIREMENT THAT AN AGENCY PROMOTE AN INDIVIDUAL TO A HIGHER LEVEL
 POSITION THROUGH NONCOMPETITIVE CAREER PROMOTION.  THUS, MANAGEMENT
 RETAINS THE RIGHT TO ASSIGN AN INDIVIDUAL FROM A POSITION WHICH IS KNOWN
 TO WARRANT UPGRADING AS THE RESULT OF AN ADDITION OF NEW DUTIES.
 HOWEVER, AN AGENCY IS NOT PRECLUDED FROM PROMOTING AN INDIVIDUAL
 NONCOMPETITIVELY IF, AS THE ARBITRATOR DETERMINED IN THIS CASE, THERE
 WAS A SIGNIFICANT CHANGE IN JOB CONTENT DUE TO AN ACCRETION OF DUTIES
 WHICH WAS NOT THE RESULT OF PLANNED MANAGEMENT ACTION.
 
    THE ONLY CIRCUMSTANCE UNDER WHICH AN AGENCY MAY BE REQUIRED TO
 PROMOTE A PARTICULAR PERSON AND TO ACCORD THAT PERSON BACKPAY IS WHEN A
 FINDING HAS BEEN MADE BY AN ARBITRATOR OR OTHER COMPETENT AUTHORITY THAT
 THE INDIVIDUAL WOULD HAVE BEEN PROMOTED AT A CERTAIN TIME BUT FOR AN
 ADMINISTRATIVE ERROR, OR THE VIOLATION OF A COMMISSION OR AGENCY
 REGULATION, OR OF A PROVISION IN A NEGOTIATED AGREEMENT.  THIS PRINCIPLE
 HAS BEEN SET FORTH IN A SERIES OF COMPTROLLER GENERAL DECISIONS DEALING
 WITH RETROACTIVE PROMOTION, ALL NUMBERED B-180010, AND ISSUED ON AND
 AFTER OCTOBER 31, 1974.  THUS, EVEN THOUGH THE ARBITRATOR FACTUALLY
 DETERMINED THAT THE HIGHER GRADED POSITION HAD BEEN RECONSTITUTED AT THE
 HIGHER GRADE AS A RESULT OF AN ACCRETION OF HIGHER LEVEL DUTIES AND NOT
 AS A RESULT OF PLANNED MANAGEMENT ACTION, THE AGENCY'S RIGHT TO SELECT
 OR NONSELECT A PARTICULAR PERSON CANNOT BE ABRIDGED UNLESS THE
 ARBITRATOR FOUND A DIRECT CAUSAL CONNECTION BETWEEN THE AGENCY'S
 VIOLATION(S) AND THE FAILURE TO SELECT THAT EMPLOYEE.  /4/
 
    IN THIS CASE, IT IS CLEAR WHETHER THE REQUIRED "BUT FOR" RELATIONSHIP
 EXISTS.  WHILE IT MAY BE INFERRED FROM HIS AWARD THAT THE ARBITRATOR
 BELIEVED THE GRIEVANT WOULD HAVE BEEN PROMOTED TO THE HIGHER GRADED
 POSITION NONCOMPETITIVELY, HE DID NOT ADDRESS THIS ISSUE DIRECTLY IN HIS
 OPINION.  THE AGENCY MAINTAINS ON PAGE 5 OF ITS PETITION FOR REVIEW AND
 STAY OF THE ARBITRATOR'S AWARD THAT "(M)ANAGEMENT DOES NOT, NOR HAS IT
 EVER, CONCEDED THAT THE GRIEVANT WOULD HAVE BEEN PROMOTED UNDER THE
 CIRCUMSTANCES PRESENTED IN THIS CASE." IN SUPPORT OF THIS CONTENTION,
 THE AGENCY NOTED THAT MANAGEMENT CHOSE TO REASSIGN THE GRIEVANT TO
 ANOTHER POSITION ONCE IT WAS DETERMINED HE WAS PERFORMING HIGHER GRADED
 DUTIES, AND THAT THE GRIEVANT WAS NOT SELECTED FOR THE POSITION WHEN IT
 WAS ADVERTISED UNDER COMPETITIVE PROMOTION PROCEDURES.  HOWEVER, THE
 PARTIES JOINTLY STIPULATED AT THE ARBITRATION HEARING THAT THE ISSUE
 BEFORE THE ARBITRATOR WAS WHETHER THE GS-14 MANAGEMENT ANALYST POSITION
 WAS THE RESULT OF PLANNED MANAGEMENT ACTION.  MOREOVER, THE AGENCY'S
 CONTENTION THAT IT WOULD NOT HAVE PROMOTED THE GRIEVANT IN ANY CASE IS
 CONTRADICTED BY ITS OWN STATEMENT ON PAGE 1 OF ITS POST-HEARING BRIEF,
 WHICH PROVIDES AS FOLLOWS:
 
    "WHAT IS, THEREFORE, BEFORE THE ARBITRATOR TO RESOLVE IS WHETHER OR
 NOT THE SET OF
 
    CIRCUMSTANCES PRESENTED BY THE PARTIES FITS INTO THE CATEGORY OF
 'ACCRETION' OR 'PLANNED
 
    MANAGEMENT ACTION.' IF THE ARBITRATOR RESOLVES THE ISSUE IN FAVOR OF
 'ACCRETION' THEN THE
 
    GRIEVANT WAS DUE CAREER PROMOTION.  IF THE ARBITRATOR FINDS IN FAVOR
 OF 'PLANNED MANAGEMENT
 
    ACTION' THEN MANAGEMENT WAS CORRECT IN USING COMPETITIVE PROMOTION
 PROCEDURES"
 
    IN VIEW OF THE ARBITRATOR'S FAILURE TO MAKE A SPECIFIC "BUT FOR"
 FINDING, AND THE DISCREPANCY IN THE STATED POSITION OF THE AGENCY IN
 THIS REGARD, WE ARE UNABLE TO DETERMINE WHETHER OR NOT THERE WAS A
 DIRECT, CAUSAL CONNECTION BETWEEN THE ERROR OR VIOLATION FOUND BY THE
 ARBITRATOR AND THE AGENCY'S FAILURE TO PROMOTE THE GRIEVANT
 NONCOMPETITIVELY TO THE HIGHER GRADED POSITION.  IF, IN THE
 CIRCUMSTANCES OF THIS CASE, IT IS DETERMINED THAT THE NECESSARY "BUT
 FOR" RELATIONSHIP DOES EXIST, IMPLEMENTATION OF THE ARBITRATOR'S AWARD
 OF RETROACTIVE PROMOTION WITH BACKPAY WOULD NOT VIOLATE APPLICABLE LAW
 AND COMMISSION REGULATIONS.
 
    IN ACCORDANCE WITH THIS INTERPRETATION BY OPM OF APPLICABLE LAW AND
 CIVIL SERVICE REGULATIONS AND PURSUANT TO SECTION 2411.37(A) OF THE
 RULES, THE AUTHORITY CONCLUDES THAT IN THE CIRCUMSTANCES OF THIS CASE,
 THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION WITH BACKPAY TO THE
 GRIEVANT IS NOT VIOLATIVE OF APPLICABLE LAW OR COMMISSION REGULATIONS.
 AS NOTED BY OPM,
 
    (I)F, IN THE CIRCUMSTANCES OF THIS CASE, IT IS DETERMINED THAT THE
 NECESSARY "BUT
 
    FOR" RELATIONSHIP DOES EXIST, IMPLEMENTATION OF THE ARBITRATOR'S
 AWARD OF RETROACTIVE
 
    PROMOTION WITH BACKPAY WOULD NOT VIOLATE APPLICABLE LAW AND
 COMMISSION REGULATIONS.
 
    IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE AUTHORITY FINDS
 THAT THE ARBITRATOR MADE THE NECESSARY DETERMINATION THAT, BUT FOR THE
 ACTIVITY'S UNWARRANTED ACTION OF PROCEEDING AS IF THE ACCRETION OF
 DUTIES WERE THE RESULT OF PLANNED MANAGEMENT ACTION, THE ACTIVITY WOULD
 HAVE GRANTED THE GRIEVANT A NONCOMPETITIVE CAREER PROMOTION.  IN THIS
 RESPECT THE AUTHORITY NOTES THE CONTEXT AND PARAMETERS OF THE ISSUE
 STIPULATED AND SUBMITTED TO THE ARBITRATOR.  THE ISSUE SUBMITTED TO THE
 ARBITRATOR QUESTIONED WHETHER THE GS-14 POSITION WAS THE RESULT OF
 PLANNED MANAGEMENT ACTION.  AS EMPHASIZED BY OPM IN ITS RESPONSE AND AS
 PREVIOUSLY NOTED, THE ACTIVITY EXPLAINED TO THE ARBITRATOR IN ITS
 POST-HEARING BRIEF THAT CENTRAL TO THE DISPOSITION OF THE GRIEVANCE WAS
 THE ARBITRATOR'S DETERMINATION OF WHETHER THIS WAS AN ACCRETION OF
 DUTIES AND RESPONSIBILITIES THAT WAS OR WAS NOT THE RESULT OF PLANNED
 MANAGEMENT ACTION.  IN THAT BRIEF, THE ACTIVITY WENT ON TO MAKE THE
 CLEAR STATEMENT THAT "IF THE ARBITRATOR RESOLVES THE ISSUE IN FAVOR OF
 'ACCRETION,' THE GRIEVANT WAS DUE CAREER PROMOTION," THUS CONCEDING THAT
 IT WOULD HAVE GRANTED THE GRIEVANT NONCOMPETITIVE CAREER PROMOTION IN A
 CASE OF AN ACCRETION OF DUTIES AND RESPONSIBILITIES THAT WAS NOT THE
 RESULT OF PLANNED MANAGEMENT ACTION.  WITH THESE STIPULATIONS BY THE
 PARTIES, ONCE THE ARBITRATOR DETERMINED THAT THE GS-14 POSITION WAS THE
 RESULT OF AN ACCRETION OF DUTIES AND RESPONSIBILITIES THAT WAS NOT THE
 RESULT OF PLANNED MANAGEMENT ACTION, THE DISPOSITION OF THE GRIEVANCE
 HAD BEEN SPECIFIED TO THE EFFECT THAT THE GRIEVANT WAS ENTITLED TO A
 NONCOMPETITIVE CAREER PROMOTION.  IN ORDERING THE GRIEVANT RETROACTIVELY
 PROMOTED WITH BACKPAY TO THE GS-14 POSITION IN THESE CIRCUMSTANCES, IT
 IS MANIFEST THAT THE ARBITRATOR FOUND THAT BUT FOR THE ACTIVITY'S
 UNWARRANTED ACTION OF PROCEEDING IN THIS CASE AS IF THE POSITION
 ACCRETION HAD BEEN THE RESULT OF PLANNED MANAGEMENT ACTION, THE ACTIVITY
 WOULD HAVE GRANTED THE GRIEVANT A NONCOMPETITIVE CAREER PROMOTION TO THE
 GS-14 POSITION.
 
    FOR THESE REASONS, THE ARBITRATOR'S AWARD DOES NOT VIOLATE APPLICABLE
 LAW OR COMMISSION REGULATIONS.  ACCORDINGLY, PURSUANT TO SECTION
 2411.37(B) OF THE AMENDED RULES, THE ARBITRATOR'S AWARD IS SUSTAINED AND
 THE STAY OF THE AWARD PREVIOUSLY GRANTED IS VACATED.  /5/
 
    ISSUED, WASHINGTON, D.C., MAY 8, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, IN MATTERS
 SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION
 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 FED.REG. 36040), WHICH
 TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.5 OF THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 FED.REG. 44741).  THE
 AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
 FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7135(B)).
 
    /2/ ALL REFERENCES TO FPM MATERIALS DISCUSSED IN THIS LETTER PERTAIN
 TO PROVISIONS OF THE FPM IN EFFECT AT THE TIME OF THE ACTION GIVING RISE
 TO THIS GRIEVANCE AS WELL AS THE ARBITRATOR'S AWARD.
 
    /3/ DEFENSE COMMERCIAL COMMUNICATIONS OFFICE AND 1400 AIR BASE WING,
 SCOTT AIR FORCE BASE, AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL UNION NO. R7-23 (ROBERTS, ARBITRATOR), FLRC NO. 75A-87, COUNCIL
 REPORT NO. 121.
 
    /4/ SEE, E.G., THE COUNCIL'S DECISION IN TOOELE ARMY DEPOT, TOOELE,
 UTAH AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2185 (LINN, ARBITRATOR), FLRC NO. 75A-104, COUNCIL REPORT NO. 108.
 
    /5/ 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.