09:0433(53)AR - National Bureau of Standards, Boulder Laboratories and AFGE Local 2186 -- 1982 FLRAdec AR

 9 FLRA No. 53
 
 NATIONAL BUREAU OF STANDARDS,
 BOULDER LABORATORIES
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2186
 Union
 
                                            Case No. O-AR-207
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JOSEPH LAZAR FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION DID NOT
 FILE AN OPPOSITION.
 
    THE DISPUTE IN THIS CASE AROSE OVER THE MERIT PROMOTION PROCEDURES
 APPLIED BY THE ACTIVITY TOWARD THE SELECTION FOR THE POSITION OF
 ELECTRICIAN FOREMAN, WS-9, UNDER VACANCY ANNOUNCEMENT NBS/BL 79-124.  A
 GRIEVANCE WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR MADE THE FOLLOWING AWARD:
 
    1.  THE NATIONAL BUREAU OF STANDARDS/BOULDER LABORATORIES VIOLATED
 THE MERIT PROMOTION
 
    PROGRAM.
 
    2.  STRICTLY SUBJECT TO THE ABSOLUTE CONDITION OF MUTUALLY GIVEN FREE
 CONSENT BY THE
 
    MANAGEMENT AND BY THE SUCCESSFUL CANDIDATE OCCUPANT OF THE POSITION
 OF ELECTRICIAN FOREMAN,
 
    AND BASED STRICTLY ON THE CONDITION OF SUCH FREELY GIVEN MUTUAL
 CONSENT, CONSIDERATION SHALL
 
    BE GIVEN BY THE MANAGEMENT, THE SUCCESSFUL CANDIDATE OCCUPANT, AND
 THE UNION, TO THE
 
    POSSIBILITY OF REASSIGNMENT OF THE SUCCESSFUL CANDIDATE OCCUPANT TO
 ANOTHER WAGE SUPERVISORY
 
    POSITION.  IN THE EVENT OF SUCH REASSIGNMENT, THEN NBS/BL SHALL
 READVERTISE THE ELECTRICIAN
 
    FOREMAN JOB, NOT ALLOW THE PERSON ORIGINALLY SELECTED (SUCCESSFUL
 CANDIDATE OCCUPANT) TO
 
    REAPPLY, REPANEL THE NEW APPLICANTS, AND MAKE A NEW SELECTION.
 
    3.  THIS AWARD CONTEMPLATES THAT "MANAGEMENT'S PROPOSED RESOLUTION"
 SHALL DEVELOP ALONG THE
 
    LINES STATED IN THE MANAGEMENT'S BRIEF, I.E.:
 
    NBS WILL CONDUCT A CLOSER EVALUATION OF CASES PROCESSED BY ITS
 PERSONNEL MANAGEMENT
 
    SPECIALISTS TO ASSURE THAT NO ERRORS INCLUDING THE TYPE COMMITTED IN
 THIS CASE REOCCUR.  IN
 
    FACT, NBS HAS BEGUN DEVELOPMENT OF A GUIDE TO BE USED BY OUR
 PERSONNEL MANAGEMENT SPECIALISTS
 
    IN PROCESSING MERIT PROMOTION ACTIONS.  THIS GUIDE WILL BE USED IN
 CONJUNCTION WITH NBS' NEW
 
    MERIT ASSIGNMENT PLAN, FORMERLY KNOWN AS THE MERIT PROMOTION PROGRAM
 PLAN.  FURTHERMORE, NBS
 
    WILL DEVELOP AND MAKE AVAILABLE TO EMPLOYEES IN LOCAL 2186, A 20-HOUR
 SUPERVISORY TRAINING
 
    PROGRAM.  THIS TRAINING WILL HELP PREPARE BARGAINING UNIT EMPLOYEES
 TO UNDERSTAND THE ROLE AND
 
    RESPONSIBILITIES OF A SUPERVISOR.  THE TRAINING, WHEN COMPLETED, WILL
 BETTER PREPARE A
 
    BARGAINING UNIT EMPLOYEE TO COMPETE FOR SUPERVISORY JOBS AS THEY
 BECOME OPEN IN THE
 
    FUTURE.  THIS TRAINING WILL BE AVAILABLE WITHIN 60 DAYS OF THE
 ARBITRATOR'S DECISION.
 
    4.  THE ARBITRATOR RESERVES JURISDICTION OVER DISPUTES ARISING OUT OF
 THE INTERPRETATION OR
 
    APPLICATION OF THIS AWARD.
 
    THE AGENCY'S EXCEPTIONS TO THE AWARD ONLY RELATE TO PARAGRAPH 2.  IN
 ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT IMPLEMENTATION OF THIS
 PORTION OF THE AWARD "IS AN IMPOSSIBILITY." IN PARTICULAR, THE AGENCY
 MAINTAINS THAT THE GRIEVANCE WOULD NOT HAVE BEEN ORIGINALLY SUBMITTED TO
 ARBITRATION IF MANAGEMENT AND THE UNION HAD BEEN ABLE TO MUTUALLY AGREE
 TO SUCH A SOLUTION.  SIMILARLY, THE AGENCY CLAIMS THAT BY SUCH AN AWARD
 THE ARBITRATOR FAILED TO FULFILL HIS RESPONSIBILITY TO ISSUE A DECISION
 AND HAS RETURNED THE CASE BACK TO THE PARTIES WITHOUT A RESOLUTION.
 
    THIS EXCEPTION AND SUPPORTING ASSERTIONS DO NOT ESTABLISH THAT THE
 AWARD IS IN ANY MANNER DEFICIENT.  IT IS CLEAR THAT THE AGENCY'S
 IMPLEMENTATION ARGUMENT IS ONLY THAT THE MUTUAL AGREEMENT OF THE PARTIES
 AND THE SUCCESSFUL CANDIDATE IS IMPROBABLE AND UNLIKELY.  HOWEVER, SUCH
 AN ARGUMENT, BASED SOLELY ON THE "LIKELIHOOD" OF A FUTURE AGREEMENT,
 DOES NOT PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT AS INCOMPLETE,
 AMBIGUOUS, OR CONTRADICTORY SO AS TO MAKE IMPLEMENTATION IMPOSSIBLE.
 SEE, E.G., DELAWARE NATIONAL GUARD, WILMINGTON, DELAWARE AND ASSOCIATION
 OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER, 5 FLRA NO. 9 (1981).
 LIKEWISE, THE AGENCY HAS NOT DEMONSTRATED THAT THE ARBITRATOR FAILED TO
 ISSUE A DECISION.  IN FULL RESOLUTION OF THE GRIEVANCE SUBMITTED, THE
 ARBITRATOR EXPRESSLY RULED THAT THE ACTIVITY HAD VIOLATED THE MERIT
 PROMOTION PLAN AND AS PART OF HIS REMEDY FOR THAT VIOLATION HE EXPRESSLY
 ADOPTED "MANAGEMENT'S PROPOSED RESOLUTION." ALTHOUGH THE ARBITRATOR
 SUGGESTED CERTAIN ADDITIONAL RELIEF, CONDITIONED ON THE CONSENT OF THE
 PARTIES AND THE SUCCESSFUL CANDIDATE, SUCH CONDITIONED RELIEF CERTAINLY
 DOES NOT ESTABLISH THAT THE ARBITRATOR RETURNED THE CASE TO THE PARTIES
 UNRESOLVED.
 
    IN ITS SECOND EXCEPTION THE AGENCY PRINCIPALLY CONTENDS THAT WERE
 PARAGRAPH 2 OF THE AWARD MUTUALLY AGREED TO, IT WOULD BE CONTRARY TO 5
 CFR PART 335 AND FPM CHAPTER 335 BECAUSE THE AWARD IMPROPERLY WOULD
 REQUIRE THAT THE SUCCESSFUL CANDIDATE BE REMOVED FROM THE POSITION IN
 ADVANCE OF RERUNNING THE ACTION AND IMPROPERLY WOULD PRECLUDE THE
 SUCCESSFUL CANDIDATE FROM REAPPLYING FOR THE POSITION WHEN RERUN.
 HOWEVER, THIS EXCEPTION DOES NOT ESTABLISH THAT THE AWARD IS DEFICIENT.
 
    AS NOTED, THE ARBITRATOR IN PARAGRAPH 2 OF THE AWARD HAS NOT ORDERED
 THE ACTIVITY TO COMPLY WITH CERTAIN PRESCRIBED CORRECTIVE ACTION.
 INSTEAD, THE ARBITRATOR HAS ONLY SUGGESTED CERTAIN FURTHER RELIEF AND
 HAS ABSOLUTELY CONDITIONED SUCH RELIEF ON THE CONSENT OF THE PARTIES AND
 THE SUCCESSFUL CANDIDATE AND THE EVENTUALITY OF AN AGREEABLE
 REASSIGNMENT OF THE SUCCESSFUL CANDIDATE.  IN SUCH CIRCUMSTANCES THERE
 IS NO DEMONSTRATION THAT IMPLEMENTATION OF THE AWARD CANNOT BE FULLY
 CONSISTENT WITH GOVERNING LAW AND REGULATION.  SEE NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES, LOCAL 1332 AND UNITED STATES ARMY MATERIEL
 DEVELOPMENT AND READINESS COMMAND HEADQUARTERS, 7 FLRA NO. 95 (1982) (IN
 WHICH THE AGENCY'S EXCEPTION TO AN ALTERNATIVE DISPOSITION OFFERED BY
 THE ARBITRATION AWARD WAS DENIED ON THE BASIS THAT ANOTHER ALTERNATIVE
 PROVIDED FOR A PROPER RESOLUTION OF THE DISPUTE).  HOWEVER, AS INDICATED
 IN NFFE LOCAL 1332, IN IMPLEMENTING THE AWARD THE PARTIES ARE GOVERNED
 BY CONTROLLING LAW AND REGULATION.  THUS, IN THE EVENT OF THE REQUISITE
 CONSENT AND A MUTUALLY AGREEABLE REASSIGNMENT OF THE SUCCESSFUL
 CANDIDATE, THE RERUNNING OF THE ACTION BY THE ACTIVITY MUST FULLY
 CONFORM WITH CONTROLLING LAW AND REGULATION AND THE COLLECTIVE
 BARGAINING AGREEMENT.  SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 SOCIAL SECURITY ADMINISTRATION, AREA III AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231, 8 FLRA NO. 50 AT 2N. (1982);
 THE ADJUTANT GENERAL, STATE OF OKLAHOMA, AIR NATIONAL GUARD AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, WILL ROGERS AIR NATIONAL GUARD LOCAL
 3953, 8 FLRA NO. 23 (1982).
 
    FOR THESE REASONS THE AGENCY'S EXCEPTIONS ARE DENIED.  ISSUED,
 WASHINGTON, D.C., JULY 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY