U.S. Army Armament Research and Development Command, Chemical Systems Laboratory Support, Product Assurance Directorate (Edgewood Arsenal) (Activity) and National Federation of Federal Employees, Local 178 (Union)  

 3 FLRA No. 45
 
 U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT
 COMMAND, CHEMICAL SYSTEMS
 LABORATORY SUPPORT, PRODUCT
 ASSURANCE DIRECTORATE (EDGEWOOD
 ARSENAL)
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 178
 Union
 
                                            Case No. 0-AR-1
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR ROBERT J. ABLES FILED BY THE UNION.
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT, A GS-12 ENGINEERING
 TECHNICIAN, SOUGHT TO HAVE HIS QUALIFICATIONS RATING UPGRADED FROM
 ENGINEERING TECHNICIAN TO THAT OF A PROFESSIONAL ENGINEER (GENERAL
 ENGINEER) BASED UPON HIS CERTIFICATION BY THE STATE OF CALIFORNIA, IN
 OCTOBER 1975, AS A PROFESSIONAL ENGINEER.  IN MAY 1976 THE GRIEVANT
 FILED THE NECESSARY PAPERS WITH THE ACTIVITY REQUESTING THAT HIS
 QUALIFICATIONS BE UPGRADED.  HOWEVER, BECAUSE THE GRIEVANT'S SUBMISSION
 WAS LOST AND HE HAD TO RESUBMIT IT, THE GRIEVANT'S REQUEST FOR THE
 PROFESSIONAL RATING WAS NOT APPROVED BY THE ACTIVITY UNTIL JUNE 1977.
 SUBSEQUENTLY, WHEN THE ACTIVITY SUBMITTED THE REQUEST TO A HIGHER AGENCY
 LEVEL FOR FINAL APPROVAL, IT WAS DISCOVERED THAT IN DECEMBER 1976 THE
 CIVIL SERVICE COMMISSION HAD CHANGED ITS QUALIFICATIONS REQUIREMENTS FOR
 THE GENERAL ENGINEER POSITION TO THE EFFECT THAT THE GRIEVANT'S
 CALIFORNIA CERTIFICATION AS A PROFESSIONAL ENGINEER NO LONGER QUALIFIED
 HIM FOR THE GENERAL ENGINEER RATING.  THUS, AS A RESULT, THE GRIEVANT
 DID NOT RECEIVE THE GENERAL ENGINEER RATING.
 
    THE ACTIVITY, TAKING THE POSITION THAT THE GRIEVANT DESERVED THE
 PROFESSIONAL RATING SINCE HE WOULD HAVE RECEIVED IT PRIOR TO THE CHANGES
 IN THE QUALIFICATIONS STANDARDS BY THE CIVIL SERVICE COMMISSION HAD THE
 ACTIVITY NOT LOST HIS FIRST REQUEST, INITIATED ACTION TO CONVINCE THE
 CIVIL SERVICE COMMISSION TO GRANT THE GRIEVANT'S APPLICATION FOR A
 QUALIFICATIONS UPGRADE OR TO WAIVE THE REQUIREMENTS SO THAT THE GRIEVANT
 COULD BE RATED AS A PROFESSIONAL ENGINEER.  THE CIVIL SERVICE
 COMMISSION, HOWEVER, DENIED THE EFFORTS TAKEN BY THE ACTIVITY ON BEHALF
 OF THE GRIEVANT, NOTING THAT QUALIFICATION REQUIREMENTS HAD TO BE
 APPLIED UNIFORMLY.  THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR, IN THE OPINION ACCOMPANYING HIS AWARD, NOTED THAT THE
 CIVIL SERVICE COMMISSION HAD ADVISED THE ACTIVITY:
 
    IF A GRIEVANCE CONCERNING A QUALIFICATION DETERMINATION IS FILED
 UNDER A GRIEVANCE
 
    PROCEDURE WHICH PROVIDES FOR UNRESOLVED GRIEVANCES TO GO TO
 ARBITRATION, THERE IS NOT BAR TO
 
    THE ARBITRATOR RENDERING A DECISION ON QUALIFICATIONS.  HIS DECISION,
 HOWEVER, MUST BE
 
    CONSISTENT WITH THE COMMISSION'S (QUALIFICATION STANDARDS AND THE
 COMMISSION'S) INTERPRETATION
 
    OF THOSE STANDARDS IN ORDER TO BE LEGALLY IMPLEMENTABLE.
 
    THUS, THE ARBITRATOR CONCLUDED THAT BASED ON THE "FINDINGS ALREADY
 MADE BY THE CIVIL SERVICE COMMISSION THAT (THE GRIEVANT) IS NOT
 QUALIFIED TO BE A PROFESSIONAL ENGINEER," THE GRIEVANCE COULD NOT BE
 SUSTAINED.  AS HIS AWARD, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF THE ARBITRATOR'S AWARD BASED UPON THE EXCEPTIONS DISCUSSED BELOW.
 THE AGENCY FILED AN OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY, 44 F.R. 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 THE PRESENT CASE EXCEPT
 THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
 WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    THE UNION'S EXCEPTIONS TO THE ARBITRATOR'S AWARD AS SET FORTH IN ITS
 PETITION FOR REVIEW ARE THAT THE ARBITRATOR FAILED "TO INTERPRET
 DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL CORRECTLY," THAT HE
 MISINTERPRETED REGULATIONS OF THE CIVIL SERVICE COMMISSION, THAT HE
 FAILED "TO INTERPRET THE GRIEVANCE PROCEDURES OF THE CONTRACT" BY
 "ERRONEOUSLY INTERPRET(ING) THE MEANING OF THE GRIEVANCE AND THE REMEDY
 SOUGHT (CONCERNING) A SATISFACTION OF THE GRIEVANCE," AND THAT THE AWARD
 VIOLATES "THE LAW CONCERNING THE RETROACTIVE APPLICATION OF
 REGULATIONS."
 
    WITH RESPECT TO THESE EXCEPTIONS, THE UNION HAS NOT PRESENTED FACTS
 AND CIRCUMSTANCES SUFFICIENT TO WARRANT AUTHORITY ACCEPTANCE OF THE
 UNION'S PETITION FOR REVIEW ON ANY OF THE GROUNDS ADVANCED BY THE UNION.
  IN EFFECT, THE UNION'S PETITION IS BOTTOMED ON THE ARBITRATOR'S
 REASONED DETERMINATION IN THIS CASE TO APPLY THE "AUTHORITATIVE
 PRECEDENT" OF THE CIVIL SERVICE COMMISSION.  AS THE ARBITRATOR STATED IN
 HIS OPINION:  "(T)HIS GRIEVANCE TURNS ON QUALIFICATIONS FOR PLACEMENT IN
 A JOB AND IT ALREADY HAS BEEN DETERMINED BY THE CIVIL SERVICE COMMISSION
 IN THIS DISPUTE THAT (THE GRIEVANT) DOES NOT HAVE QUALIFICATIONS FOR A
 PROFESSIONAL ENGINEER UNDER EXISTING REQUIREMENTS . . . "
 
    IN TWO CASES ARISING UNDER EXECUTIVE ORDER 11491, /1/ THE CIVIL
 SERVICE COMMISSION ADVISED THE FEDERAL LABOR RELATIONS COUNCIL THAT
 
    PROVIDED A QUALIFICATIONS ISSUE WERE OTHERWISE PROPERLY BEFORE THE
 ARBITRATOR, WE WOULD
 
    KNOW OF NO BAR TO HIS RENDERING A DECISION ON IT.  HIS DECISION
 WOULD, OF COURSE, HAVE TO BE
 
    CONSISTENT WITH THE CONTROLLING QUALIFICATIONS STANDARDS OF THE
 COMMISSION IN ORDER TO BE
 
    LEGALLY IMPLEMENTABLE.
 
    AS PREVIOUSLY INDICATED, THE ARBITRATOR APPLIED THE COMMISSION'S
 DETERMINATION REGARDING THE GRIEVANT'S QUALIFICATIONS TO THE MATTER
 BEFORE HIM AND DENIED THE GRIEVANCE.  IN DOING SO HE NOTED THROUGHOUT
 HIS OPINION THE INEQUITIES INVOLVED IN THIS CASE, IN WHICH IT WAS
 CONCEDED BY THE ACTIVITY/AGENCY THAT THE GRIEVANT WOULD HAVE HAD HIS
 QUALIFICATIONS UPGRADED BY THE ACTIVITY PRIOR TO THE COMMISSION'S CHANGE
 IN THE QUALIFICATION REQUIREMENTS HAD THE GRIEVANT'S INITIAL REQUEST NOT
 BEEN LOST.  HOWEVER, THE ARBITRATOR ALSO CORRECTLY NOTED THAT BECAUSE OF
 THE CIVIL SERVICE COMMISSION'S DETERMINATION WITH RESPECT TO THE
 GRIEVANT'S QUALIFICATIONS IN THIS CASE, THERE WAS NO BASIS UPON WHICH HE
 COULD SUSTAIN THE GRIEVANCE.  IN ITS PETITION FOR REVIEW, THE UNION IS
 SEEKING, AS IT DID BEFORE THE ARBITRATOR, TO OBTAIN A RESULT DIFFERENT
 FROM THE ONE RENDERED BY THE CIVIL SERVICE COMMISSION.  HOWEVER, WHILE
 THE AUTHORITY SHARES THE VIEWS STATED BY THE ACTIVITY/AGENCY IN ITS
 SUBMISSION TO THE CIVIL SERVICE COMMISSION AND THE CONCERNS STATED BY
 THE ARBITRATOR WITH RESPECT TO THE APPARENT INEQUITIES IN THIS CASE, IN
 LIGHT OF THE DECISION MADE BY THE CIVIL SERVICE COMMISSION WITH RESPECT
 TO THE GRIEVANT'S QUALIFICATIONS AND THE CITED COUNCIL CASES THAT
 QUALIFICATIONS DECISIONS MUST BE CONSISTENT WITH COMMISSION
 QUALIFICATIONS DETERMINATIONS, THE UNION'S EXCEPTIONS DO NOT PROVIDE A
 BASIS FOR ACCEPTANCE OF ITS PETITION FOR REVIEW UNDER SECTION 2411.32 OF
 THE AMENDED RULES.  /2/
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
 FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
 OF THE AMENDED RULES OF PROCEDURE.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1980.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS AND
 NAVAL AIR REWORK FACILITY, NORFOLK, VIRGINIA (ABLES, ARBITRATOR), 5 FLRC
 951, 955 (FLRC NO.  77A-11 (DEC. 20, 1977), REPORT NO. 140) QUOTING
 DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2047, AFL-CIO (DISTEFANO,
 ARBITRATOR), 4 FLRC 280, 286 (FLRC NO. 74A-99 (APR. 27, 1975), REPORT
 NO. 104).
 
    /2/ THIS CASE WAS FILED WITH THE AUTHORITY PRIOR TO THE EFFECTIVE
 DATE OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT.
 1191).  THEREFORE, IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL
 SERVICE REFORM ACT OF 1978 (92 STAT. 1224), THIS CASE WAS DECIDED SOLELY
 ON THE BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE STATUTE HAD NOT
 BEEN ENACTED.  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS OF THE STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE.