The Adjutant General, State of Oklahoma, Air National Guard (Agency) and American Federation of Government Employees, Will Rogers Air National Guard, Local 3953 (Union) 

 8 FLRA No. 23
 
 THE ADJUTANT GENERAL,
 STATE OF OKLAHOMA, AIR
 NATIONAL GUARD
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 WILL ROGERS AIR NATIONAL
 GUARD LOCAL 3953
 Union
 
                                            Case No. 0-AR-146
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JAMES B. GILES FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7122(A)) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR PART 2425).  THE UNION DID NOT FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE CONCERNED THE
 ELIGIBILITY OF CANDIDATES FOR PROMOTION AND PLACEMENT.  SPECIFICALLY, HE
 STATED THAT
 
    (T)HE MAIN ISSUE REVOLVED AROUND THE QUESTION OF WHETHER MANAGEMENT
 HAS VIOLATED THE
 
    COLLECTIVE BARGAINING AGREEMENT BY SELECTING AN APPLICANT WHO DID NOT
 MEET THE MANDATORY AND
 
    SELECTIVE FACTOR QUALIFICATIONS.
 
    THE ARBITRATOR DETERMINED THAT A CERTAIN AFSC RATING WAS A MINIMUM
 QUALIFICATION REQUIREMENT FOR APPOINTMENT TO THE FULL PERFORMANCE LEVEL
 OF THE POSITION IN DISPUTE AND THAT THE INDIVIDUAL SELECTED FOR THE
 POSITION CLEARLY DID NOT MEET THIS MANDATORY REQUIREMENT.  ACCORDINGLY,
 THE ARBITRATOR MADE THE FOLLOWING AWARD:
 
    IT IS THE CONCLUSION OF THIS ARBITRATOR THAT THE POSITION OF
 METALLIZING EQUIPMENT OPERATOR
 
    MUST BE VACATED AND
 
    THE FOLLOWING OPTION BE LEFT TO MANAGEMENT:  (A) REOPEN
 
    THE OPPORTUNITY FOR ELIGIBLE AND QUALIFIED PERSONNEL TO BID FOR THE
 FULL PERFORMANCE POSITION
 
    OF METALLIZING EQUIPMENT OPERATOR, OR, IF MANAGEMENT CONSIDERS THIS
 TO BE A FRUITLESS STEP (B)
 
    ANNOUNCE, INSTEAD, A TRAINEE POSITION, GIVING THE APPROPRIATE
 REDUCTION IN RATING AND
 
    SPECIFYING THE MANDATORY QUALIFICATIONS AND THE SELECTIVE FACTORS FOR
 THE TRAINEE, THIS TO
 
    FOLLOW OMD SUPPLEMENT 1-1 TO TPP 911, 6(A).
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY HAS
 SUBMITTED A COPY OF THE LETTER THE PARTIES SENT TO THE FEDERAL MEDIATION
 AND CONCILIATION SERVICE REQUESTING A PANEL OF ARBITRATORS.  IN THAT
 LETTER THE DISPUTE BETWEEN THE PARTIES WAS DESCRIBED AS FOLLOWS:
 
    A BRIEF STATEMENT OF THE NATURE OF THE ISSUE TO BE DECIDED FOLLOWS:
 
    ISSUE:  DOES THE ACTIVITY HAVE THE RIGHT UNDER THE PARTIES'
 COLLECTIVE BARGAINING
 
    AGREEMENT TO INCLUDE APPROPRIATE SELECTIVE PLACEMENT FACTORS AND HAVE
 THEM USED AS MANDATORY
 
    QUALIFICATIONS IN DETERMINING ELIGIBILITY OF CANDIDATES FOR PROMOTION
 AND MERIT PLACEMENT.
 
    ON THE BASIS OF THIS DESCRIPTION, THE AGENCY MAINTAINS THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY FRAMING AND DECIDING AN ISSUE WHICH
 WAS NEITHER SPECIFICALLY INCLUDED OR NECESSARILY AROSE FROM THE
 STATEMENT OF THE ISSUE AS CONTAINED IN THE FMCS LETTER.
 
    HOWEVER, THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  THE AGENCY HAS FAILED TO ESTABLISH THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY BY DETERMINING AN ISSUE THAT WAS NOT INCLUDED IN
 THE SUBJECT MATTER SUBMITTED TO ARBITRATION. THE SOLE BASIS OF THE
 AGENCY'S EXCEPTION IS THAT THE FMCS LETTER CONSTITUTED THE COMPLETE
 AGREEMENT BETWEEN THE PARTIES AS TO THE ISSUE TO BE ARBITRATED AND THAT
 THE LETTER SET FORTH THE ISSUE IN PRECISE LANGUAGE SO AS TO CONFINE AND
 CIRCUMSCRIBE THE ARBITRATOR'S AUTHORITY TO THAT ISSUE ALONE.  THE
 AUTHORITY DISAGREES. THE FMCS LETTER WAS CAST IN LANGUAGE SUFFICIENTLY
 IMPRECISE AS NOT TO EXPRESSLY CONFINE AND CIRCUMSCRIBE THE ISSUE MARKED
 OUT FOR THE ARBITRATOR'S CONSIDERATION.  THE LETTER DOES NOT FORMULATE
 THE PRECISE ISSUE SUBMITTED TO ARBITRATION TO WHICH THE ARBITRATOR .
 CONSEQUENTLY WOULD HAVE BEEN LIMITED.  RATHER, THE LETTER BY ITS OWN
 TERMS ONLY CONSTITUTED A "BRIEF STATEMENT OF THE NATURE OF THE ISSUE TO
 BE DECIDED." THEREFORE, THE AGENCY FAILS TO DEMONSTRATE THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING THAT THE MAIN ISSUE
 BETWEEN THE PARTIES REVOLVED AROUND THE QUESTION OF WHETHER MANAGEMENT
 VIOLATED THE AGREEMENT BY SELECTING AN APPLICANT WHO DID NOT MEET A
 MANDATORY QUALIFICATION REQUIREMENT.  SEE UNITED STATES DEPARTMENT OF
 THE INTERIOR, BUREAU OF LAND MANAGEMENT, EUGENE DISTRICT OFFICE AND
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1911, 6 FLRA NO.
 72(1981) AND PRIVATE SECTOR CASES CITED THEREIN.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO THE FEDERAL PERSONNEL MANUAL. THE AGENCY EMPHASIZES THAT THE
 AWARD OFFERS MANAGEMENT AN OPTION IN RERUNNING THE ACTION.
 CONSEQUENTLY, THE AGENCY ARGUES THAT THE AWARD IS DEFICIENT IN ORDERING
 THAT THE POSITION MUST BE VACATED.  THE AGENCY MAINTAINS IN THIS RESPECT
 THAT THE INCUMBENT EMPLOYEE MAY BE ENTITLED, PURSUANT TO FPM CHAPTER
 335, APPENDIX A, SECTION A-4B, NOT TO BE REMOVED FROM THE POSITION IN
 ADVANCE OF THE ORDERED CORRECTIVE ACTION DEPENDING ON WHICH ALTERNATIVE
 MANAGEMENT DECIDES TO TAKE.  THE AUTHORITY AGREES.  TO THE EXTENT THE
 AWARD ORDERS THAT THE POSITION "MUST BE VACATED" PRIOR TO RERUNNING THE
 ACTION WITHOUT A SPECIFIC DETERMINATION THAT THE EMPLOYEE IS NOT
 ENTITLED TO REMAIN IN THE POSITION UNDER EITHER ALTERNATIVE, IT IS
 INCONSISTENT WITH THE FPM AND MUST BE MODIFIED.  CONSEQUENTLY, THE AWARD
 IS MODIFIED TO PROVIDE AS FOLLOWS:  /1/
 
    WITH RESPECT TO THE DISPUTED ACTION CONCERNING THE POSITION OF
 METALLIZING EQUIPMENT
 
    OPERATOR, MANAGEMENT IS ORDERED TO TAKE, CONSISTENT WITH APPLICABLE
 LAW AND REGULATION AND THE
 
    COLLECTIVE BARGAINING AGREEMENT, ONE OF THE FOLLOWING CORRECTIVE
 ACTIONS:  (1) REOPEN THE
 
    OPPORTUNITY FOR ELIGIBLE AND QUALIFIED PERSONNEL TO BID FOR THE FULL
 PERFORMANCE POSITION OF
 
    METALLIZING EQUIPMENT OPERATOR, OR, IF MANAGEMENT CONSIDERS THIS TO
 BE A FRUITLESS STEP (B)
 
    ANNOUNCE, INSTEAD, A TRAINEE POSITION, GIVING THE APPROPRIATE
 REDUCTION IN RATING AND
 
    SPECIFYING THE MANDATORY QUALIFICATIONS AND THE SELECTIVE FACTORS FOR
 THE TRAINEE, THIS TO
 
    FOLLOW OMD SUPPLEMENT 1-1 TO TPP 911, 6(A).  IN EITHER EVENT, THE
 ACTION INVOLVING THE
 
    ERRONEOUSLY APPOINTED INCUMBENT EMPLOYEE MUST FULLY CONFORM WITH
 CONTROLLING LAW AND
 
    REGULATION AND THE COLLECTIVE BARGAINING AGREEMENT.
 
    IN MODIFYING THE AWARD IN THIS MANNER, THE AUTHORITY NOTES THAT THE
 ARBITRATOR'S FINDING THAT THE INCUMBENT EMPLOYEE DID NOT POSSESS THE
 MINIMUM QUALIFICATIONS FOR THE FULL PERFORMANCE LEVEL WOULD PRECLUDE
 RETAINING THE EMPLOYEE IN THE POSITION WHILE THE ACTION IS BEING RERUN
 SHOULD THE AGENCY CHOOSE ALTERNATIVE (A).  SHOULD THE AGENCY OPT INSTEAD
 FOR ALTERNATIVE (B), IT MUST FIRST APPLY THE APPLICABLE REGULATIONS AND
 DETERMINE WHETHER THE EMPLOYEE IS ENTITLED TO REMAIN IN HIS CURRENT
 POSITION AND GRADE LEVEL WHILE THE ACTION IS BEING RERUN IN ACCORDANCE
 WITH THAT ALTERNATIVE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ AS A FINAL EXCEPTION THE AGENCY ALSO CONTENDS THAT THE AWARD
 INTERFERES WITH ITS RIGHTS UNDER SECTION 7106(A)(2)(A) AND (C) OF THE
 STATUTE.  ESSENTIALLY THE AGENCY ARGUES THAT THE AWARD REQUIRES THE
 ACTIVITY TO MAKE A SELECTION AND FILL THE POSITION AFTER THE ACTION IS
 RERUN.  HOWEVER, ON ITS FACE THE AWARD ONLY REQUIRES THAT MANAGEMENT
 REANNOUNCE AND RERUN THE ACTION, AND AS MODIFIED THE AWARD EXPRESSLY
 PROVIDES THAT THE CORRECTIVE ACTION MUST CONFORM WITH LAW WHICH WOULD
 INCLUDE, AS APPLICABLE, MANAGEMENT RIGHTS SET FORTH IN SECTION 7106(A)
 OF THE STATUTE.  ACCORDINGLY, NO BASIS IS PROVIDED FOR FINDING THE
 AWARD, AS MODIFIED, DEFICIENT ON THIS GROUND.