Department of Defense, 375 Air Base Group, Scott Air Force Base, Illinois (Activity) and National Association of Government Employees, Local R7-23 (Union)

 5 FLRA No. 10
 
 DEPARTMENT OF DEFENSE, 375 AIR BASE
 GROUP, SCOTT AIR FORCE BASE, ILLINOIS
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R7-23
 Union
 
                                            Case No. 0-AR-57
 
                                DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR GLADYS W. GRUENBERG FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD THIS CASE AROSE BY REASON OF A
 GRIEVANCE FILED BY THE UNION ALLEGING THAT THE ACTIVITY VIOLATED A
 SETTLEMENT AGREEMENT REACHED IN A PRIOR GRIEVANCE WHEREBY THE GRIEVANT
 WAS TO BE GIVEN "PRIORITY CONSIDERATION FOR PROMOTION TO THE NEXT FOUR
 AVAILABLE VACANCIES FOR WHICH SHE MEETS QUALIFICATION STANDARDS." THE
 UNION CONTENDED THAT THE ACTIVITY HAD IMPROPERLY RESTRICTED THE
 GRIEVANT'S PRIORITY CONSIDERATION TO POSITIONS WITHOUT PROMOTION
 POTENTIAL.  THE UNION ALSO SOUGHT, PRIMARILY UNDER REGULATIONS
 PERTAINING TO HANDICAPPED OR DISABLED EMPLOYEES, A LATERAL TRANSFER FOR
 THE GRIEVANT OR RETRAINING SO SHE COULD QUALIFY FOR OTHER POSITIONS.
 
    ON THE BASIS OF AGENCY REGULATIONS, THE ARBITRATOR FOUND UNDER THE
 SETTLEMENT AGREEMENT THAT THE GRIEVANT WAS ENTITLED TO PRIORITY
 CONSIDERATION ONLY FOR GS-5 POSITIONS WITHOUT PROMOTION POTENTIAL
 BECAUSE THIS WAS ORIGINALLY THE TYPE OF POSITION FOR WHICH SHE ALLEGEDLY
 DID NOT RECEIVE PROPER CONSIDERATION.  IN ADDITION, THE ARBITRATOR RULED
 THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO TRAIN THE GRIEVANT SO AS TO
 QUALIFY HER FOR HIGHER LEVEL POSITIONS.  THE ARBITRATOR FOUND THAT THE
 GRIEVANT WAS NOT HANDICAPPED OR DISABLED WITHIN THE MEANING OF
 DISABILITY REGULATIONS AND THEREFORE WAS NOT ENTITLED TO SPECIAL
 CONSIDERATION FOR REASSIGNMENT.  THE ARBITRATOR FURTHER FOUND THAT THE
 AGREEMENT PROVISION CONCERNING SAFETY AND HYGIENE WAS INAPPLICABLE TO
 THE GRIEVANT'S EMOTIONAL PROBLEMS AND THEREFORE PROVIDED NO BASIS FOR
 HER LATERAL TRANSFER REQUEST.  HOWEVER, FINDING THAT THE TERMS OF THE
 SETTLEMENT AGREEMENT HAD NOT BEEN COMPLETELY CARRIED OUT, THE ARBITRATOR
 AWARDED THE GRIEVANT TWO ADDITIONAL PRIORITY REFERRALS TO GS-5 POSITIONS
 WITHOUT UPWARD MOBILITY, BUT DENIED THE GRIEVANT'S REQUESTS FOR
 REASSIGNMENT BECAUSE OF PHYSICAL OR MENTAL IMPAIRMENT AND FOR RETRAINING
 SO SHE COULD QUALIFY FOR OTHER POSITIONS.
 
    THE UNION HAS FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    THE UNION DOES NOT TAKE EXCEPTION TO THE ARBITRATOR'S AWARD OF TWO
 ADDITIONAL PRIORITY REFERRALS, BUT ARGUES INSTEAD THAT THE AWARD DOES
 NOT GO "FAR ENOUGH." THUS, IN ITS FIRST EXCEPTION THE UNION CONTENDS
 THAT THE ARBITRATOR WAS IN ERROR IN INTERPRETING SPECIFIED REGULATIONS
 AS LIMITING THE GRIEVANT'S RIGHT TO PRIORITY REFERRALS TO ONLY DEAD END
 GS-5 POSITIONS RATHER THAN INCLUDING POSITIONS WHICH MAY HAVE FUTURE
 PROMOTIONAL OPPORTUNITIES.  IN SUPPORT OF THIS EXCEPTION, THE UNION
 MAINTAINS THAT THE FEDERAL PERSONNEL MANUAL REQUIREMENT /3/ THAT AN
 EMPLOYEE "MUST BE CONSIDERED FOR THE NEXT APPROPRIATE VACANCY TO MAKE UP
 FOR THE CONSIDERATION LOST" DOES NOT EXPRESSLY LIMIT PRIORITY
 CONSIDERATION TO POSITIONS WITHOUT PROMOTION POTENTIAL.  THE UNION
 FURTHER MAINTAINS THAT THE AGENCY REGULATION /4/ ON WHICH THE ARBITRATOR
 RELIED ONLY STATES THAT THE REFERRAL IS TO BE TO A "GRADE NO HIGHER THAN
 THAT FOR WHICH DENIED PROPER CONSIDERATION." THUS, THE UNION ARGUES THAT
 APPLICABLE REGULATIONS DO NOT PRECLUDE PRIORITY CONSIDERATION TO ALL
 GS-5 POSITIONS REGARDLESS OF PROMOTION POTENTIAL.  MOREOVER, THE UNION
 ASSERTS THAT THE GRIEVANT MUST BE GRANTED PRIORITY CONSIDERATION TO ALL
 GS-5 POSITIONS BECAUSE FUTURE PROMOTION POTENTIAL IS AN IMPONDERABLE FOR
 WHICH THERE IS NO GUARANTEE.
 
    THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1)
 OF THE STATUTE IF THE AWARD IS CONTRARY TO "LAW, RULE, OR REGULATION."
 HOWEVER, IN THIS CASE THE UNION DOES NOT DEMONSTRATE IN ITS EXCEPTION
 THAT THIS AWARD IS CONTRARY TO ANY OF THE CITED REGULATIONS.  /5/ THE
 UNION, BY MERELY ARGUING THAT ITS POSITION ON PRIORITY CONSIDERATION IS
 NOT EXPRESSLY PRECLUDED BY THE CITED REGULATIONS, HAS NOT DEMONSTRATED
 IN WHAT MANNER THE ARBITRATOR'S AWARD LIMITING THE GRIEVANT'S PRIORITY
 CONSIDERATION TO POSITIONS WITHOUT PROMOTION POTENTIAL IS INCONSISTENT
 WITH THESE REGULATIONS.  AS WAS NOTED, THE ARBITRATOR IN HER AWARD
 SPECIFICALLY APPLIED THE CITED REGULATIONS TO THE FACTS OF THIS CASE AND
 DETERMINED THAT THE GRIEVANT'S PRIORITY CONSIDERATION EXTENDED ONLY TO
 POSITIONS WITHOUT PROMOTION POTENTIAL BECAUSE THAT WAS THE TYPE OF
 POSITION FOR WHICH SHE ALLEGEDLY DID NOT RECEIVE PROPER CONSIDERATION.
 THE ARBITRATOR EXPRESSLY REJECTED PRIORITY CONSIDERATION FOR THE
 GRIEVANT TO UPWARD MOBILITY POSITIONS BECAUSE THE ARBITRATOR RECOGNIZED
 THAT PROMOTIONS IN THESE POSITIONS TO THE TARGET GRADES WERE
 NONCOMPETITIVE.  THUS, THE UNION IS SEEKING TO HAVE ITS OWN REMEDY
 SUBSTITUTED FOR THE ONE FORMULATED BY THE ARBITRATOR, BUT DOES NOT SHOW
 THAT THE CITED REGULATIONS, IN THE CIRCUMSTANCES OF THIS CASE, WOULD
 REQUIRE THE REMEDY DESIRED BY THE UNION OR THAT THE ARBITRATOR'S AWARD
 IS IN ANY MANNER CONTRARY TO THOSE REGULATIONS.  THEREFORE, THE UNION'S
 FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER
 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR WAS IN
 ERROR IN FINDING THE GRIEVANT NOT ENTITLED TO REASSIGNMENT BECAUSE OF
 PHYSICAL OR MENTAL IMPAIRMENT.  IN SUPPORT OF THIS EXCEPTION, THE UNION
 ARGUES THAT THE ARBITRATOR MISCONSTRUES THE MEANING OF THE TERMS
 "HANDICAPPED" AND "DISABILITY" IN THE APPLICABLE CIVIL SERVICE
 REGULATIONS /6/ AND PLACES TOO RESTRICTIVE AN INTERPRETATION ON THOSE
 REGULATIONS.  THE UNION ARGUES THAT "(I)T IS CLEAR FROM A READING OF
 THESE REGULATIONS" THAT THEY APPLY TO THE GRIEVANT.
 
    LIKEWISE, IN ITS THIRD EXCEPTION, THE UNION CONTENDS THAT THE
 ARBITRATOR ERRED IN FINDING MANAGEMENT UNDER NO OBLIGATION TO RETRAIN
 THE GRIEVANT AS PROVIDED IN THESE SAME REGULATIONS GOVERNING DISABLED
 EMPLOYEES.  IN SUPPORT OF THIS EXCEPTION, THE UNION ARGUES THAT THE
 MANDATE OF THE REGULATIONS REQUIRES AGENCIES TO RETRAIN DISABLED
 EMPLOYEES.
 
    ALTHOUGH THE UNION'S SECOND AND THIRD EXCEPTIONS, WHICH IN ESSENCE
 CONTEND THAT THE AWARD IS CONTRARY TO REGULATIONS, STATE A GROUND ON
 WHICH THE AUTHORITY MAY FIND AN AWARD DEFICIENT, THE UNION HAS NOT
 DEMONSTRATED THAT THE ARBITRATOR'S AWARD IS CONTRARY TO THE CITED
 REGULATIONS.  AS HAS BEEN NOTED, THE ARBITRATOR IN HER AWARD
 SPECIFICALLY CONSIDERED THE CITED REGULATIONS.  SHE DETERMINED ON THE
 BASIS OF THE EVIDENCE BEFORE HER, INCLUDING THE GRIEVANT'S PHYSICAL AND
 MENTAL CONDITION ACCORDING TO THE LETTERS OF HER DOCTORS AND INCLUDING
 THE GRIEVANT'S OWN TESTIMONY THAT SHE WAS NOT HANDICAPPED OR DISABLED,
 THAT THE GRIEVANT WAS NOT HANDICAPPED OR DISABLED WITHIN THE MEANING OF
 THESE REGULATIONS.  THEREFORE, IT WAS THE ARBITRATOR'S FINDING THAT THE
 GRIEVANT WAS NOT ENTITLED TO SPECIAL CONSIDERATION FOR REASSIGNMENT OR
 RETRAINING PURSUANT TO THESE REGULATIONS.  THE UNION'S EXCEPTIONS TO
 THIS AWARD ARE SUPPORTED SOLELY BY ITS VIEW THAT THE APPLICATION OF
 THESE REGULATIONS TO THE GRIEVANT IS "CLEAR FROM A READING OF THESE
 REGULATIONS." HOWEVER, THE UNION HAS FAILED TO SHOW IN WHAT MANNER THE
 AWARD IS CONTRARY TO THE REGULATIONS.  INSTEAD, THE UNION'S EXCEPTIONS,
 BY REPEATING THE SAME ARGUMENTS THAT WERE MADE TO THE ARBITRATOR, ARE AN
 ATTEMPT TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY
 BY DISPUTING THE ARBITRATOR'S FINDINGS REGARDING THE GRIEVANT'S PHYSICAL
 AND MENTAL CONDITION AND THEREFORE PROVIDE NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 1923, AFL-CIO AND SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS
 AND OFFICES, 4 FLRA NO. 19(1980).  IN THESE CIRCUMSTANCES, THE UNION'S
 SECOND AND THIRD EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    IN ITS FOURTH EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR ERRED
 IN FINDING THAT THE LABOR AGREEMENT PROVISION CONCERNING SAFETY AND
 HYGIENE DID NOT APPLY.  IN SUPPORT OF THIS EXCEPTION, THE UNION ARGUES
 THAT THE ARBITRATOR ATTEMPTED TO SECOND GUESS THE PARTIES' INTENT IN
 NEGOTIATING THIS PROVISION.
 
    THIS EXCEPTION REPRESENTS A DISAGREEMENT WITH THE ARBITRATOR'S
 INTERPRETATION AND APPLICATION OF THE PROVISION OF THE LABOR AGREEMENT
 BEFORE HER.  SUCH AN EXCEPTION DOES NOT CONSTITUTE A GROUND FOR FINDING
 AN AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  UNITED STATES ARMY MISSILE MATERIEL
 READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO.  60(1980).
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ THE UNION REFERS TO PROVISIONS OF FPM CHAPTER 335 AS IN EFFECT
 DURING THE PERIOD IN QUESTION IN THIS CASE.
 
    /4/ BOTH THE ARBITRATOR AND THE UNION CITE THIS REGULATION AS AIR
 FORCE REGULATION 40-300.
 
    /5/ IN VIEW OF THIS FINDING, IT IS NOT NECESSARY THAT THE AUTHORITY
 DECIDE WHETHER THE AGENCY REGULATION CITED BY THE UNION CONSTITUTES A
 "RULE, OR REGULATION" WITHIN THE MEANING OF SECTION 7122(A)(1) OF THE
 STATUTE.
 
    /6/ BOTH THE ARBITRATOR AND THE UNION CITE TO FPM CHAPTER 306 AND FPM
 SUPPLEMENT 831-1 CONCERNING HANDICAPPED AND DISABLED EMPLOYEES.