Community Services Administration (Agency) and National Council of CSA Locals, American Federation of Government Employees, AFL-CIO (Union) 

 5 FLRA No. 32
 
 COMMUNITY SERVICES ADMINISTRATION
 Agency
 
 and
 
 NATIONAL COUNCIL OF CSA LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-158
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD /1/ OF
 ARBITRATOR SEYMOUR STRONGIN 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, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE AGENCY POSTED AND FILLED AT ITS REGIONAL OFFICES CERTAIN
 TEMPORARY POSITIONS AS SCHEDULE A EXCEPTED SERVICE POSITIONS UNDER THE
 AUTHORITY PROVIDED IN SECTION 213.3199(B) OF TITLE 5 OF THE CODE OF
 FEDERAL REGULATIONS.  /2/
 
    PRIOR TO POSTING THE POSITIONS AND BECAUSE OF THE NEED TO
 EXPEDITIOUSLY FILL THEM, THE AGENCY SECURED FROM THE UNION ITS AGREEMENT
 TO WAIVE THE NORMAL 10-DAY POSTING PERIOD AND IN ITS PLACE SUBSTITUTE A
 SHORTER POSTING PERIOD.  NOTICES WERE POSTED AND APPLICATIONS RECEIVED
 FROM AGENCY EMPLOYEES AND OTHERS.  THE AGENCY MADE ITS SELECTIONS AND
 FILLED THE POSITIONS PRIMARILY WITH APPLICANTS FROM OUTSIDE THE AGENCY.
 
    SUBSEQUENTLY, THE UNION FILED GRIEVANCES ON BEHALF OF NONSELECTED
 AGENCY EMPLOYEES IN ITS ATLANTA AND BOSTON REGIONAL OFFICES.  THE
 GRIEVANCES ALLEGED THAT FILLING THE VACANCIES WITH OUTSIDE APPLICANTS
 VIOLATED ARTICLE 12, SECTION 4(C)(3) OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT WHICH REQUIRES THAT COMPETITIVE MERIT PROCEDURES BE
 USED FOR TEMPORARY PROMOTIONS OF MORE THAN 60 DAYS.  THE GRIEVANCES ALSO
 ALLEGED THAT SCHEDULE A AUTHORITY WAS NOT PROPERLY EXERCISED BECAUSE ONE
 OF THE PRECONDITIONS TO ITS USE IN THESE CIRCUMSTANCES IS THAT THE
 POSITIONS FILLED BE THOSE FOR WHICH OTHER STAFFING RESOURCES OR
 AUTHORITIES ARE NOT AVAILABLE WITHIN THE AGENCY, A CONDITION WHICH
 ALLEGEDLY WAS NOT MET.  IN ADDITION, IN THE BOSTON GRIEVANCE THE UNION
 ALLEGED THAT THE AGENCY IMPROPERLY FAILED TO GRANT THE GRIEVANT
 VETERAN'S PREFERENCE POINTS AND THAT IT ERRONEOUSLY FAILED TO FORMALLY
 RANK THE APPLICANTS FOR THE POSITIONS.
 
    BOTH GRIEVANCES WERE SUBMITTED TO ARBITRATION.  IN DENYING THE
 GRIEVANCES, THE ARBITRATOR FOUND NO VIOLATION OF ARTICLE 12, SECTION
 4(C)(3) OF THE AGREEMENT SINCE THE COVERAGE OF THAT PROVISION WAS
 LIMITED TO "THE COMPETITIVE SERVICE FOR EMPLOYEES IN THE BARGAINING
 UNIT." THUS, BECAUSE THE POSITIONS AT ISSUE INVOLVED SCHEDULE A EXCEPTED
 SERVICE APPOINTMENTS, THE ARBITRATOR CONCLUDED ARTICLE 12, SECTION
 4(C)(3) OF THE PARTIES' AGREEMENT WAS NOT APPLICABLE.  AS TO THE UNION'S
 CONTENTION THAT ONE OF THE PRECONDITIONS TO THE USE OF THE SCHEDULE A
 APPOINTING AUTHORITY FOR TEMPORARY ORGANIZATIONS HAD NOT BEEN MET, I.E.,
 THAT OTHER STAFFING RESOURCES OR AUTHORITIES WITHIN THE AGENCY NOT BE
 AVAILABLE, THE ARBITRATOR OBSERVED THAT THERE WAS "AN ABSENCE OF
 GUIDANCE FROM THE PARTIES" AS TO HOW THIS CONDITION SHOULD BE APPLIED.
 THEREFORE HE FORMULATED AND APPLIED A "RULE OF REASON," DETERMINING THE
 PRECONDITION TO BE MET IF THE AGENCY COULD ONLY DETAIL INCUMBENT
 EMPLOYEES TO THE POSITIONS AT SERIOUS COST TO ITS OWN REGULAR
 OPERATIONS.  HOWEVER, THE ARBITRATOR FOUND THAT IN ANY EVENT THE UNION
 HAD FAILED TO OBJECT WHEN THE AGENCY INFORMED IT THAT THE SCHEDULE A
 AUTHORITY WOULD BE UTILIZED FOR THE POSITIONS, AND THEREFORE THAT THE
 SCHEDULE A APPOINTING AUTHORITY HAD BEEN PROPERLY UTILIZED.
 
    IN ADDITION, IN THE BOSTON GRIEVANCE THE ARBITRATOR ALSO FOUND THAT
 THE GRIEVANT WAS NOT ENTITLED TO VETERAN'S PREFERENCE POINTS UNDER THE
 AGENCY'S SELECTION PROCEDURES IN FILLING "TEMPORARY EMERGENCY-TYPE
 POSITIONS" LIKE THE ONES IN DISPUTE.  FINALLY, THE ARBITRATOR CONCLUDED
 THAT, UNDER THE CIRCUMSTANCES OF THE CASE, THE ABSENCE OF A FORMAL
 RANKING OF THE BOSTON APPLICANTS, EVEN ASSUMING THAT RANKING WAS
 REQUIRED IN FILLING TEMPORARY POSITIONS, WAS NOT PREJUDICIAL TO THE
 GRIEVANT.  THEREFORE, THE ARBITRATOR DENIED THE GRIEVANCES.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /3/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  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 ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD
 IS "CONTRARY TO LAW, RULE AND/OR REGULATION." IN SUPPORT OF THIS
 EXCEPTION, THE UNION CITES IN GENERAL TERMS TO VARIOUS STATUTORY AND
 REGULATORY PROVISIONS DEALING WITH THE SCHEDULE A APPOINTING AUTHORITY
 AND VETERANS' PREFERENCE RIGHTS AND REFERS TO TESTIMONY CONTAINED ON
 VARIOUS PAGES OF THE TRANSCRIPT OF THE ARBITRATION HEARING.
 
    THE UNION'S FIRST EXCEPTION, THAT THE AWARD IS CONTRARY TO LAW, RULE
 OR REGULATION, STATES IN GENERAL TERMS A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.
 HOWEVER, IN THIS CASE THE UNION DOES NOT DEMONSTRATE IN ITS EXCEPTION
 HOW THE AWARD IS CONTRARY TO LAW, RULE OR REGULATION.  THUS, OTHER THAN
 TO CITE IN GENERAL TERMS TO THE "RIGHTS OF (AGENCY) EMPLOYEES . . . TO
 MERIT PROMOTION AND A COMPETITIVE PROCESS" UNDER THE COLLECTIVE
 BARGAINING AGREEMENT, AND TO VARIOUS PROVISIONS OF THE FEDERAL PERSONNEL
 MANUAL AND TITLE 5 OF THE UNITED STATES CODE, THE UNION HAS NOT
 DEMONSTRATED HOW THE ARBITRATOR'S AWARD, DENYING THE GRIEVANCES OVER THE
 AGENCY'S FILLING OF CERTAIN TEMPORARY SCHEDULE A POSITIONS, IS CONTRARY
 TO ANY SPECIFIC LAWS OR REGULATIONS.  INSTEAD, IT IS CLEAR FROM THE
 UNION'S REFERENCES TO VARIOUS TESTIMONY IN THE HEARING RECORD AND TO
 CERTAIN FINDINGS MADE BY THE ARBITRATOR THAT THE UNION IS ATTEMPTING TO
 RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY.  SUCH
 ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT.  NATIONAL
 AERONAUTICS AND SPACE ADMINISTRATION AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2284, 3 FLRA NO. 35(1980).  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
 EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS
 THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY WHEN HE APPLIED A "RULE OF
 REASON" IN "THE ABSENCE OF ANY GUIDANCE FROM THE PARTIES" AS TO HOW ONE
 OF THE REGULATORY PRECONDITIONS TO USING SCHEDULE A AUTHORITY FOR
 FILLING TEMPORARY POSITIONS SHOULD BE INTERPRETED AND APPLIED.  INSTEAD,
 THE UNION ASSERTS, THE ARBITRATOR SHOULD ONLY HAVE APPLIED "RULES"
 REGARDING MERIT PROMOTION AND COMPETITIVE PROCEDURES.
 
    THE UNION'S SECOND EXCEPTION, THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY, STATES A GROUND UPON WHICH THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.  DEPARTMENT OF THE
 AIR FORCE, MCGUIRE AIR FORCE BASE AND LOCAL 1778, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, 3 FLRA NO. 38(1980).  HOWEVER, IN THIS CASE THE
 UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR IN ANY MANNER
 EXCEEDED HIS AUTHORITY WHEN, IN ADDRESSING ONE OF THE QUESTIONS BEFORE
 HIM OF WHETHER CERTAIN REGULATORY PRECONDITIONS HAD BEEN MET, HE
 FORMULATED A "RULE OF REASON" FOR APPLYING THE REGULATION IN THE ABSENCE
 OF OTHER GUIDANCE FROM THE PARTIES.  INSTEAD, THE UNION'S ARGUMENTS IN
 SUPPORT OF ITS EXCEPTION CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S
 REASONING AND CONCLUSION IN RESOLVING THE MATTER BEFORE HIM.  THIS DOES
 NOT CONSTITUTE A BASIS FOR FINDING AN AWARD DEFICIENT.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO AND SOCIAL
 SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS AND OFFICES, 4 FLRA NO.
 19(1980).  THEREFORE, THE UNION'S SECOND 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.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE MATTER BEFORE THE ARBITRATOR INVOLVED TWO SEPARATE GRIEVANCES
 WITH SIMILAR ISSUES.  THE ARBITRATOR'S AWARDS AS TO EACH OF THOSE
 GRIEVANCES HAVE BEEN ADDRESSED AS SINGLE AWARD BY THE UNION IN ITS
 EXCEPTIONS AND WILL BE SIMILARLY TREATED FOR PURPOSES OF THIS DECISION.
 
    /2/ 5 CFR 213.3199(B)(1980) PROVIDES THE AUTHORITY TO HIRE EMPLOYEES
 FOR THE SCHEDULE A EXCEPTED SERVICE TO FILL:
 
    POSITIONS AT GS-15 AND BELOW ON THE STAFFS OF TEMPORARY ORGANIZATIONS
 ESTABLISHED WITHIN
 
    CONTINUING AGENCIES WHEN ALL OF THE FOLLOWING CONDITIONS ARE MET:
 (1) THE TEMPORARY
 
    ORGANIZATION IS ESTABLISHED BY AN AUTHORITY OUTSIDE THE AGENCY,
 USUALLY BY LAW OR EXECUTIVE
 
    ORDER;  (2) THE TEMPORARY ORGANIZATION IS ESTABLISHED FOR AN INITIAL
 PERIOD OF 4 YEARS OR LESS
 
    AND, IF SUBSEQUENTLY EXTENDED, ITS TOTAL LIFE INCLUDING EXTENSION(S)
 WILL NOT EXCEED 4
 
    YEARS;  (3) THE WORK TO BE PERFORMED BY THE TEMPORARY ORGANIZATION IS
 OUTSIDE THE AGENCY'S
 
    CONTINUING RESPONSIBILITIES;  AND (4) THE POSITIONS FILLED UNDER THIS
 AUTHORITY ARE THOSE FOR
 
    WHICH OTHER STAFFING RESOURCES OR AUTHORITIES ARE NOT AVAILABLE
 WITHIN THE AGENCY.  AN AGENCY
 
    MAY USE THIS AUTHORITY TO FILL POSITIONS IN ORGANIZATIONS WHICH DO
 NOT MEET ALL OF THE ABOVE
 
    CONDITIONS OR TO MAKE APPOINTMENTS AND POSITION CHANGES IN A SINGLE
 ORGANIZATION DURING A
 
    PERIOD LONGER THAN 4 YEARS ONLY WITH PRIOR APPROVAL OF THE (OFFICE OF
 PERSONNEL MANAGEMENT).
 
    /3/ 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.