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

 7 FLRA No. 87
 
 GENERAL COUNSEL OF THE NATIONAL
 LABOR RELATIONS BOARD
 Activity
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Union
 
                                            Case No. O-AR-33
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR RAYMOND L. BRITTON FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER CONCERNS THE
 ACTIVITY'S FILLING OF A PARTICULAR POSITION.  THREE ACTIVITY EMPLOYEES
 APPLIED FOR THE POSITION AND ONE OF THEM WAS SELECTED.  THE TWO
 EMPLOYEES WHO WERE NOT SELECTED FILED GRIEVANCES CLAIMING THAT THE
 SELECTION FAILED TO CONFORM TO THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  THE GRIEVANCES WERE NOT RESOLVED AND WERE ULTIMATELY
 SUBMITTED TOGETHER TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUE TO BE WHETHER MANAGEMENT'S REFUSAL TO
 SELECT ONE OF THE TWO GRIEVANTS VIOLATED THE CLERICAL PROMOTION
 PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  AFTER
 REVIEWING THE EVALUATIONS OF THE CANDIDATES MADE BY THE ACTIVITY DURING
 THE SELECTION PROCESS, THE ARBITRATOR CONCLUDED THAT THE CANDIDATES'
 QUALIFICATIONS HAD NOT BEEN PROPERLY ASSESSED BY THE ACTIVITY IN
 ACCORDANCE WITH THE AGREEMENT.  HE DETERMINED THAT THE QUALIFICATIONS OF
 THE SELECTED EMPLOYEE WERE NOT SUPERIOR TO THOSE OF ONE OF THE
 GRIEVANTS.  THE ARBITRATOR DETERMINED THAT, INSTEAD, THE QUALIFICATIONS
 OF EACH WERE SUFFICIENTLY ALIKE TO BE PROPERLY CONSIDERED AS
 "EQUIVALENT" WITHIN THE MEANING OF THE PARTIES' AGREEMENT.
 CONSEQUENTLY, HE RULED THAT HE WAS REQUIRED TO FOLLOW THE MANDATE OF THE
 AGREEMENT:  "WHERE QUALIFICATIONS OF CANDIDATES ARE EQUIVALENT, AGENCY
 SENIORITY SHALL PREVAIL." ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR
 SUSTAINED THE GRIEVANCE OF THE ONE GRIEVANT HE DETERMINED TO BE
 EQUIVALENT TO THE SELECTED EMPLOYEE;  HE DIRECTED THAT THE ACTIVITY
 RERUN THE PROMOTION ACTION AS BETWEEN THE SELECTED EMPLOYEE AND THE
 SUCCESSFUL GRIEVANT;  AND HE ORDERED THAT THE PROMOTION BE AWARDED TO
 THE CANDIDATE WITH THE GREATER AGENCY SENIORITY AND THAT THE CANDIDATE
 SO SELECTED BE MADE WHOLE.
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND THE RULES AND REGULATIONS OF THE
 AUTHORITY APPLICABLE AT THAT TIME.  /2/ THE UNION HAS FILED AN
 OPPOSITION.  IN ADDITION, THE OFFICE OF PERSONNEL MANAGEMENT (OPM) HAS
 FILED A BRIEF AS AN AMICUS CURIAE.  /3/
 
    THE EXCEPTION BEFORE THE AUTHORITY FOR DECISION ALLEGES THAT THE
 ARBITRATOR'S AWARD IS DEFICIENT AS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL (FPM), SPECIFICALLY CHAPTER 335 WHICH PROVIDES FOR MANAGEMENT'S
 RIGHT TO SELECT.  /4/ IN SUPPORT OF THIS EXCEPTION, THE AGENCY POINTS
 OUT THAT THE PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 WHICH THE ARBITRATOR ENFORCED REQUIRES THAT MANAGEMENT INVOKE SENIORITY
 AS THE BASIS FOR SELECTION WHENEVER CANDIDATES POSSESS EQUIVALENT
 QUALIFICATIONS.  IT IS ARGUED THAT SUCH A REQUIREMENT VIOLATES FPM
 CHAPTER 335 BECAUSE IT CONTRAVENES MANAGEMENT'S RIGHT TO DECIDE, WITHOUT
 INTERFERENCE, WHETHER TO SELECT OR NOT TO SELECT A PARTICULAR CANDIDATE
 FOR PROMOTION FROM AMONG THOSE CANDIDATES REFERRED FOR A GIVEN POSITION
 UNDER ESTABLISHED PROCEDURES.  CONSEQUENTLY, IT IS ASSERTED THAT THE
 ARBITRATOR'S AWARD ENFORCING THAT PROVISION IS DEFICIENT AS CONTRARY TO
 FPM CHAPTER 335.
 
    IN OPPOSITION THE UNION PRINCIPALLY DISPUTES THAT THE SENIORITY
 PROVISION OF THE PARTIES' AGREEMENT VIOLATES FPM CHAPTER 335.  THE UNION
 ARGUES THAT THE AWARD ENFORCES THAT PROVISION IN A MANNER FULLY
 CONSISTENT WITH THE FPM.  IT CLAIMS THAT SENIORITY IS NOT THE SOLE BASIS
 FOR SELECTION, BUT INSTEAD BECOMES THE DETERMINATIVE FACTOR ONLY AFTER
 MANAGEMENT'S EVALUATION HAS FAILED TO DIFFERENTIATE THE CANDIDATES.
 
    FOR THE REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE
 ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO THE FEDERAL
 PERSONNEL MANUAL.  AS WAS NOTED, THE ARBITRATOR'S AWARD DIRECTS
 MANAGEMENT TO RERUN THE PROMOTION ACTION AS BETWEEN THE SELECTED
 EMPLOYEE AND THE SUCCESSFUL GRIEVANT AND DIRECTS THAT THE PROMOTION BE
 AWARDED TO THE CANDIDATE WITH THE GREATER SENIORITY.  HOWEVER, THE
 AUTHORITY HAS HELD THAT FPM CHAPTER 335 CLEARLY PROVIDES FOR
 MANAGEMENT'S RIGHT TO SELECT OR NOT TO SELECT WITH RESPECT TO FILLING
 POSITIONS BY COMPETITIVE PROMOTION.  OFFICE OF THE GENERAL COUNSEL,
 NATIONAL LABOR RELATIONS BOARD AND NATIONAL LABOR RELATIONS BOARD UNION,
 6 FLRA NO. 18(1981).  LIKEWISE THE AUTHORITY HAS HELD 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.  OFFICE OF THE GENERAL COUNSEL, SUPRA.
 BECAUSE THE ARBITRATOR'S AWARD COMPELS THE ACTIVITY TO SELECT FOR
 PROMOTION THE CANDIDATE WITH THE GREATER SENIORITY, THE AWARD DENIES
 MANAGEMENT ITS RESERVED DISCRETION TO MAKE THE ACTUAL SELECTION DECISION
 AND CONSEQUENTLY IS CONTRARY TO FPM CHAPTER 335.
 
    ACCORDINGLY, THE ARBITRATOR'S AWARD IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                       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/ THE AGENCY'S EXCEPTIONS WERE FILED AT THE TIME THE AUTHORITY'S
 TRANSITION RULES AND REGULATIONS WERE IN EFFECT.
 
    /3/ THE UNION OPPOSES THE AUTHORITY'S GRANTING OF OPM'S REQUEST TO
 FILE A BRIEF AS AN AMICUS CURIAE AND PARTICULARLY DISPUTES THE
 OBSERVATION IN THE AUTHORITY'S ORDER GRANTING OPM'S REQUEST THAT THERE
 WAS NO OBJECTION TO THE REQUEST.  AT THE TIME OF THE AUTHORITY'S ORDER,
 THE UNION HAD NOT YET FILED ITS OBJECTION, BUT NEVERTHELESS THAT
 OBJECTION PROVIDES NO BASIS FOR FINDING THAT OPM'S REQUEST WAS
 IMPROVIDENTLY GRANTED.
 
    /4/ PURSUANT TO THE AUTHORITY'S TRANSITION RULES AND REGULATIONS, 5
 CFR PART 2400, THIS WAS THE ONLY EXCEPTION TO THE ARBITRATOR'S AWARD
 ACCEPTED BY THE AUTHORITY FOR REVIEW.