Office of the General Counsel, National Labor Relations Board (Activity) and National Labor Relations Board Union (Union)

 6 FLRA No. 18
 
 OFFICE OF THE GENERAL COUNSEL,
 NATIONAL LABOR RELATIONS BOARD
 Activity
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Union
 
                                            Case No. O-AR-59
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR CORNELIUS J. PECK 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, THIS GRIEVANCE AROSE WHEN THE ACTIVITY
 PROMOTED CERTAIN EMPLOYEES WHO WERE GS-12 FIELD EXAMINERS TO GS-13
 NONSUPERVISORY FIELD EXAMINER POSITIONS.  IN DOING SO, THE ACTIVITY
 PASSED OVER FOR PROMOTION CERTAIN OTHER GS-12 FIELD EXAMINERS WHO HAD
 BEEN RECOMMENDED AND DECLARED ELIGIBLE FOR SUCH A PROMOTION AT AN
 EARLIER DATE THAN THE EMPLOYEES PROMOTED.  THE UNION ALLEGED THAT THE
 ACTIVITY VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY NOT
 FIRST PROMOTING THE EMPLOYEES WHO HAD BEEN RATED QUALIFIED THE LONGEST.
 THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH THE ARBITRATOR
 STATING THE ISSUES AS FOLLOWS:
 
    1.  WHETHER OR NOT A PROMOTION OF A GS-12 FIELD EXAMINER TO THE
 POSITION OF GS-13 FIELD
 
    EXAMINER MUST BE GIVEN TO THE GS-12 FIELD EXAMINER WHO HAS LONGEST
 BEEN RATED QUALIFIED IN THE
 
    REGION FOR THE POSITION OF GS-13 FIELD EXAMINER, OR WHETHER THE
 POSITION SHOULD BE FILLED UPON
 
    COMPETITIVE SELECTION CRITERIA.
 
    2.  WHETHER FEDERAL LAW OR REGULATIONS, PARTICULARLY THE FEDERAL
 PERSONNEL MANUAL,
 
    PRECLUDES THE AWARD OF THE POSITION OF GS-13 FIELD EXAMINER ON THE
 BASIS OF LENGTH OF
 
    QUALIFICATION FOR THE POSITION RATHER THAN COMPETITIVE CRITERIA.
 
    IN RESOLUTION OF THIS MATTER, THE ARBITRATOR FOUND THAT THE GS-13
 FIELD EXAMINER POSITIONS WERE REQUIRED TO BE FILLED COMPETITIVELY AND
 THAT, IN MAKING SELECTIONS FOR SUCH POSITIONS, THE ACTIVITY WAS
 PRECLUDED BY THE FEDERAL PERSONNEL MANUAL FROM GIVING CONTROLLING WEIGHT
 TO THE LENGTH OF TIME A PROMOTION CANDIDATE HAD BEEN RATED QUALIFIED IN
 THE REGION.  CONSEQUENTLY, THE ARBITRATOR RULED:
 
    A PROMOTION OF A GS-12 FIELD EXAMINER TO THE POSITION OF GS-13
 NONSUPERVISORY FIELD
 
    EXAMINER NEED NOT BE GIVEN TO THE GS-12 FIELD EXAMINER WHO HAS
 LONGEST BEEN RATED QUALIFIED IN
 
    THE REGION FOR THE POSITION OF GS-13 FIELD EXAMINER.
 
    ACCORDINGLY, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION 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.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
 AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL.  IN SUPPORT OF THIS
 EXCEPTION, THE UNION ARGUES THAT THE ARBITRATOR ERRED IN INTERPRETING
 AND APPLYING THE FEDERAL PERSONNEL MANUAL.  IT IS THE UNION'S POSITION
 THAT THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL MANUAL BECAUSE UNDER
 THE FEDERAL PERSONNEL MANUAL THE LENGTH OF TIME A FIELD EXAMINER HAS
 BEEN RATED QUALIFIED FOR THE POSITION OF GS-13 FIELD EXAMINER MAY
 PROPERLY BE THE CONTROLLING AND DETERMINATIVE FACTOR IN THE AGENCY'S
 COMPETITIVE SELECTION FOR THE POSITION OF GS-13 NONSUPERVISORY FIELD
 EXAMINER.
 
    THE AUTHORITY FINDS THAT THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE ARBITRATOR'S AWARD DEFICIENT.  THE UNION HAS NOT DEMONSTRATED IN
 WHAT MANNER THE ARBITRATOR'S AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL.  AS NOTED, THE ARBITRATOR DETERMINED THAT THE FEDERAL PERSONNEL
 MANUAL PRECLUDED GIVING CONTROLLING WEIGHT IN THE COMPETITIVE SELECTION
 FOR GS-13 NONSUPERVISORY FIELD EXAMINER POSITIONS TO THE LENGTH OF TIME
 A PROMOTION CANDIDATE HAD BEEN RATED QUALIFIED IN THE REGION.  FPM
 CHAPTER 335 HAS CONSISTENTLY PROVIDED FOR MANAGEMENT'S RIGHT TO SELECT
 OR NOT SELECT WITH RESPECT TO FILLING POSITIONS BY COMPETITIVE
 PROMOTION.  /3/ LIKEWISE, IT IS WELL ESTABLISHED THAT IN ACCORDANCE WITH
 THIS RIGHT MANAGEMENT RETAINS THE DISCRETION TO DECIDE WHICH CANDIDATE
 IT WILL SELECT FROM AMONG THOSE REFERRED FOR A GIVEN POSITION UNDER
 ESTABLISHED PROCEDURES.  /4/ THUS, CONTRARY TO THE POSITION OF THE
 UNION, THE ARBITRATOR COULD NOT HAVE PROPERLY REQUIRED THE AGENCY TO
 SELECT THE GS-12 FIELD EXAMINER WHO HAD BEEN RATED QUALIFIED THE
 LONGEST.  RATHER, IN DENYING THE GRIEVANCE, THE ARBITRATOR PROPERLY
 DETERMINED THAT SUCH AN ACTION WAS PRECLUDED BY THE FEDERAL PERSONNEL
 MANUAL.  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 AWARD IS BASED ON
 NONFACTS.  SPECIFICALLY, THE UNION MAINTAINS THAT THE ARBITRATOR FOUND
 THAT THE AGREEMENT PROVISION IN QUESTION DID NOT CONSTITUTE AN AGENCY
 MERIT PROMOTION PLAN, AND THE UNION ASSERTS THAT THIS IS A NONFACT.  THE
 UNION ALSO MAINTAINS THAT THE ARBITRATOR FOUND THAT THE CANDIDATES WERE
 NOT RATED IDENTICALLY, AND THE UNION ASSERTS THAT THIS IS A NONFACT.
 THUS, THE UNION ARGUES THAT THE ARBITRATOR'S AWARD IS BASED ON GROSS
 MISTAKES OF CENTRAL FACTS BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
 OBTAINED.
 
    PURSUANT TO SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL
 FIND AN ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE
 CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT
 IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
 BEEN REACHED.  IN THIS CASE, HOWEVER, THE UNION HAS FAILED TO
 DEMONSTRATE THAT THE AWARD IS DEFICIENT ON THIS GROUND.  AS HAS BEEN
 NOTED, THE ARBITRATOR PROPERLY DENIED THE GRIEVANCE BECAUSE THE FEDERAL
 PERSONNEL MANUAL PRECLUDES GIVING CONTROLLING WEIGHT IN THE SELECTION
 PROCESS TO THE LENGTH OF TIME A PROMOTION CANDIDATE HAS BEEN RATED
 QUALIFIED IN THE REGION.  THUS, IT WAS THE REQUIREMENTS OF THE FEDERAL
 PERSONNEL MANUAL THAT CLEARLY PROVIDED THE BASIS FOR THE ARBITRATOR'S
 AWARD, RATHER THAN ANY OF THE "NONFACTS" ASSERTED BY THE UNION IN ITS
 EXCEPTION.  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, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 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 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;
 
    (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 2425(1980), ARE IDENTICAL TO THE INTERIM
 REGULATIONS.
 
    /3/ SEE, E.G., LOCAL R4-97, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES AND NAVAL MINE ENGINEERING FACILITY, YORKTOWN, VIRGINIA, 5
 FLRA NO. 57(1981.
 
    /4/ SEE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO AND
 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
 LODGE # 2284, 2 FLRA NO.  37(1979).