Lackland Air Force Base (Activity) and American Federation of Government Employees, Local 1367 (Union)

 5 FLRA No. 102
 
 LACKLAND AIR FORCE
 BASE
 Activity
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES
 LOCAL 1367
 UNION
 
                                            Case No. 0-AR-31
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR HAROLD R. AINSWORTH 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 ENTIRE RECORD BEFORE THE AUTHORITY, THIS MATTER
 AROSE WHEN THE ACTIVITY ISSUED AN AGENCYWIDE ANNOUNCEMENT OF A VACANCY
 AT THE ACTIVITY IN AN EQUAL EMPLOYMENT OPPORTUNITY SPECIALIST POSITION.
 THE GRIEVANT, AN EMPLOYEE AT THE ACTIVITY, APPLIED FOR THE POSITION.
 THE GRIEVANT WAS RANKED SIXTH AMONG THE CANDIDATES FOR THE POSITION, BUT
 ONLY THE TOP FIVE CANDIDATES WERE REFERRED TO THE SELECTING OFFICIAL.
 WHEN ADVISED OF THIS RESULT, THE GRIEVANT REQUESTED A COPY OF THE
 PROMOTION EVALUATION PATTERN (PEP) AND THE TRAINING, EXPERIENCE, AND
 EDUCATION RATING SCHEDULE THAT WERE USED IN THE EVALUATION OF CANDIDATES
 AND DISCOVERED THAT NO PEP HAD BEEN PREPARED.  ALTHOUGH A PEP WAS THEN
 PREPARED, THE GRIEVANT FILED A GRIEVANCE.  IN HER GRIEVANCE THE GRIEVANT
 CONTENDED THAT SHE WAS DENIED THE OPPORTUNITY TO COMPETE IN THE FINAL
 SELECTION PROCESS BECAUSE VIOLATIONS OF THE MERIT PROMOTION PLAN BY THE
 ACTIVITY IMPROPERLY EXCLUDED HER FROM THE GROUP OF FIVE CANDIDATES
 REFERRED TO THE SELECTING OFFICIAL. IN RESPONSE TO THE GRIEVANCE, THE
 ACTIVITY ADMITTED THAT THERE HAD BEEN VIOLATIONS OF THE MERIT PROMOTION
 PLAN.  HOWEVER, THE GRIEVANCE WAS DENIED BECAUSE THE ACTIVITY DETERMINED
 THAT IN ANY EVENT THE GRIEVANT WOULD NOT HAVE BEEN AMONG THE FIVE
 CANDIDATES WHO WERE REFERRED TO THE SELECTING OFFICIAL.  THEREAFTER, THE
 GRIEVANCE WAS SUBMITTED TO ARBITRATION.
 
    THE PARTIES DID NOT STIPULATE THE ISSUE TO BE RESOLVED BY THE
 ARBITRATOR.  INSTEAD, THE ARBITRATOR NOTED THAT THE POST-HEARING BRIEF
 OF THE UNION OUTLINED SEVEN ISSUES TO BE CONSIDERED.  THOSE ISSUES
 SPECIFIED THE ASSERTED VIOLATIONS BY THE ACTIVITY OF THE MERIT PROMOTION
 PLAN THAT THE UNION CONTENDED HAD DENIED THE GRIEVANT PROPER
 CONSIDERATION FOR PROMOTION.  THE ARBITRATOR VIEWED THE GRIEVANCE AS
 PRESENTING TWO BROAD ISSUES THAT HE CONSIDERED ENCOMPASSED ALL SEVEN
 ISSUES ADDRESSED BY THE UNION IN ITS BRIEF.  HE STATED THESE ISSUES TO
 BE WHETHER THE ACTIVITY WAS CORRECT IN ADVERTISING THE VACANCY
 AGENCYWIDE INSTEAD OF CONFINING THE AREA OF CONSIDERATION SOLELY TO THE
 ACTIVITY AND WHETHER THE FAILURE OF THE ACTIVITY TO PREPARE A PEP IN
 ADVANCE PREVENTED THE GRIEVANT FROM RECEIVING FULL CONSIDERATION OF HER
 QUALIFICATIONS FOR THE VACANCY.
 
    THE AREA OF CONSIDERATION WAS IN DISPUTE BECAUSE, AS WAS NOTED BY THE
 ARBITRATOR, THE GRIEVANT APPARENTLY WOULD HAVE BEEN AMONG THE FIVE
 CANDIDATES REFERRED TO THE SELECTING OFFICIAL IF THE VACANCY HAD NOT
 BEEN ANNOUNCED TO ALL AIR FORCE ACTIVITIES.  HOWEVER, THE ARBITRATOR
 FOUND IN THE CIRCUMSTANCES OF THE CASE THAT THE ACTIVITY'S ANNOUNCEMENT
 OF THE VACANCY AGENCYWIDE WAS PROPER AND CONSISTENT WITH THE
 REQUIREMENTS OF THE NEGOTIATED AGREEMENT, THE MERIT PROMOTION PLAN, AND
 THE FEDERAL PERSONNEL MANUAL.
 
    AS TO THE PEP ISSUE, THE ARBITRATOR OBSERVED THAT THE ACTIVITY
 ADMITTED THAT IT FAILED TO PREPARE A PEP UNTIL AFTER THE GRIEVANT HAD
 REQUESTED TO SEE IT.  FURTHERMORE, THE ARBITRATOR NOTED THAT THE
 NEGOTIATED AGREEMENT PROVIDED FOR THE PREPARATION OF A PEP.  HOWEVER,
 THE ARBITRATOR VIEWED THE DETERMINATIVE QUESTION TO BE "WHETHER THE
 FAILURE TO PREPARE A PEP PREVENTED THE GRIEVANT FROM RECEIVING THE
 PROPER CONSIDERATION THAT SHE WAS ENTITLED TO RECEIVE." IN THIS RESPECT,
 HE NOTED THAT A PEP IS ONLY A GENERAL STATEMENT IDENTIFYING EDUCATIONAL
 AND EXPERIENCE REQUIREMENTS WHILE THE TRAINING, EDUCATION, AND
 EXPERIENCE RATING SCHEDULE (TRAEX) GIVES SPECIFICS FOR EACH CANDIDATE,
 INCLUDING THE NUMBER OF POINTS EACH CANDIDATE HAS RECEIVED AS HIS OR HER
 RATING.  THUS, THE ARBITRATOR CONCLUDED THAT THE TRAEX IS THE REAL
 MEASURE BY WHICH CANDIDATES ARE EVALUATED FOR A VACANCY.  HE OBSERVED
 THAT A TRAEX HAD BEEN PREPARED IN THIS CASE AND THAT IT WAS USED TO
 EVALUATE THE CANDIDATES.  HE FURTHER OBSERVED THAT AFTER THE PEP WAS
 PREPARED, THE RATINGS OF THE CANDIDATES WERE NOT CHANGED BECAUSE THE
 TRAEX HAD BEEN USED FOR THE RATINGS AND THE PEP DID NOT CHANGE THE
 TRAEX.  ACCORDINGLY, THE ARBITRATOR RULED THAT THE ACTIVITY WAS IN ERROR
 IN NOT PREPARING A PEP IN ADVANCE, BUT THAT IT "DID NOT PREVENT THE
 GRIEVANT FROM RECEIVING A FULL CONSIDERATION OF HER QUALIFICATIONS FOR
 THE VACANCY." THEREFORE, AS HIS AWARD, THE ARBITRATOR DENIED THE
 GRIEVANCE.
 
    THE UNION HAS FILED AN EXCEPTION 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.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
 ARBITRATOR'S AWARD DENYING THE GRIEVANCE IS CONTRARY TO THE FEDERAL
 PERSONNEL MANUAL AND MUST BE SET ASIDE. THE SUBSTANCE OF THE UNION'S
 SUPPORT FOR ITS EXCEPTION IS THAT ASSERTEDLY THE PROMOTION ACTION FAILED
 TO CONFORM TO THE MERIT PROMOTION PLAN AND THE FEDERAL PERSONNEL MANUAL.
  THUS, THE UNION ASSERTS THAT THE ARBITRATOR'S AWARD IS CONTRARY TO THE
 FEDERAL PERSONNEL MANUAL BECAUSE THE ARBITRATOR FAILED TO AWARD THE
 CORRECTIVE ACTION MANDATED BY THE FEDERAL PERSONNEL MANUAL IN SUCH
 CIRCUMSTANCES.
 
    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 HAS NOT DEMONSTRATED IN ITS EXCEPTION
 THAT THIS AWARD IS CONTRARY TO REGULATION.  THAT IS, THE UNION HAS
 FAILED TO SHOW IN WHAT MANNER THE ARBITRATOR'S AWARD DENYING THE
 GRIEVANCE SUBMITTED TO HIM IS DEFICIENT AS CONTRARY TO THE FEDERAL
 PERSONNEL MANUAL.
 
    AS HAS BEEN NOTED, THE CONSISTENT EMPHASIS OF THE GRIEVANCE, THE
 UNION'S POST-HEARING BRIEF, AND NOW THE UNION'S EXCEPTION TO THE AWARD
 HAS BEEN THAT THERE WERE IMPROPRIETIES AND DEFICIENCIES IN THE PROMOTION
 ACTION WHICH UNFAIRLY PREVENTED THE GRIEVANT FROM TAKING THE REFERRAL
 LIST THAT SHE OTHERWISE WOULD HAVE MADE AND THEREFORE DENIED HER FULL
 CONSIDERATION FOR PROMOTION.  CONSEQUENTLY, THE RELIEF REQUESTED BY THE
 UNION FROM THE ARBITRATOR WAS THAT THE GRIEVANT BE GIVEN EITHER A
 RETROACTIVE PROMOTION WITH BACKPAY OR PRIORITY CONSIDERATION AND
 PROMOTION TO THE FIRST SIMILAR POSITION THAT BECOMES AVAILABLE AT THE
 ACTIVITY.  SIMILARLY, IN ITS EXCEPTION TO THE AWARD THE UNION REQUESTS
 THAT THE AUTHORITY ORDER THE GRIEVANT RETROACTIVELY PROMOTED WITH
 BACKPAY.  HOWEVER, IN RESPONSE TO THE GRIEVANCE AND THE UNION'S
 POST-HEARING BRIEF, AND WITH NO STIPULATION OF PRECISELY THE ISSUE TO BE
 RESOLVED, THE ARBITRATOR STATED THE GRIEVANCE IN TERMS OF WHETHER ANY
 MANAGEMENT ACTION DENIED THE GRIEVANT FULL CONSIDERATION FOR PROMOTION
 BECAUSE SUCH ACTION PREVENTED THE GRIEVANT FROM MAKING THE REFERRAL LIST
 THAT SHE OTHERWISE WOULD HAVE MADE.  THUS, THE ARBITRATOR QUESTIONED
 WHETHER THE GRIEVANT WAS UNFAIRLY PREVENTED FROM MAKING THE REFERRAL
 LIST BY THE ANNOUNCEMENT OF THE VACANCY TO ALL AIR FORCE ACTIVITIES AND
 DETERMINED THAT SHE WAS NOT BECAUSE HE FOUND SUCH ANNOUNCEMENT TO BE
 PROPER.  LIKEWISE, ALTHOUGH HE FOUND THE ACTIVITY ERRED IN NOT PREPARING
 A PEP IN ADVANCE, THE ARBITRATOR EXPRESSLY DETERMINED THAT SUCH ERROR
 "DID NOT PREVENT THE GRIEVANT FROM RECEIVING A FULL CONSIDERATION OF HER
 QUALIFICATIONS FOR THE VACANCY." FINDING NO MANAGEMENT ACTION THAT
 DENIED THE GRIEVANT FULL CONSIDERATION FOR PROMOTION, THE ARBITRATOR
 DENIED THE GRIEVANCE, THEREBY DENYING THE REQUESTED REMEDIES OF
 RETROACTIVE PROMOTION WITH BACKPAY OR PRIORITY CONSIDERATION AND FUTURE
 PROMOTION.
 
    IN CONTENDING THAT THIS AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL, THE UNION HAS ESSENTIALLY ARGUED THAT THE ARBITRATOR FAILED TO
 AWARD CORRECTIVE ACTION ASSERTEDLY MANDATED BY THE FEDERAL PERSONNEL
 MANUAL IN THE CIRCUMSTANCES OF THIS CASE.  HOWEVER, THE UNION HAS FAILED
 TO DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD RESOLVING THE
 GRIEVANCE SUBMITTED IS INCONSISTENT WITH THE FEDERAL PERSONNEL MANUAL.
 THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S AWARD DENYING THE
 GRIEVANCE ON THE BASIS THAT NO MANAGEMENT ACTION HAD PREVENTED THE
 GRIEVANT FROM RECEIVING FULL CONSIDERATION OF HER QUALIFICATIONS FOR THE
 VACANCY IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  THE UNION ALSO HAS
 NOT DEMONSTRATED THAT THE ARBITRATOR'S FAILURE TO GRANT THE REQUESTED
 CORRECTIVE ACTION OF RETROACTIVE PROMOTION OR PRIORITY CONSIDERATION AND
 PROMOTION IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  THE UNION HAS IN
 NO MANNER DEMONSTRATED THAT THE REQUESTED CORRECTIVE ACTION OF
 RETROACTIVE PROMOTION OR PRIORITY CONSIDERATION AND PROMOTION IS NOT
 ONLY AUTHORIZED BUT MANDATED BY THE FEDERAL PERSONNEL MANUAL DESPITE THE
 ARBITRATOR HAVING EXPRESSLY FOUND THAT THE GRIEVANT WAS NOT DENIED FULL
 CONSIDERATION OF HER QUALIFICATIONS FOR THE VACANCY.  THEREFORE, THE
 UNION'S 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.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 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 EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS WERE IN EFFECT, NO HARDSHIP
 OR INJUSTICE TO THE UNION RESULTS FROM CONSIDERATION OF THIS CASE UNDER
 THE AUTHORITY'S FINAL RULES AND REGULATIONS, 5 CFR PART 2425 (1980), AND
 THEREFORE THE FINAL RULES AND REGULATIONS WILL BE APPLIED.