[ v12 p257 ]
The decision of the Authority follows:
12 FLRA No. 59 SOCIAL AND REHABILITATION SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 41, AFL-CIO Union Case No. O-AR-120 DECISION This matter is before the Authority on exceptions to an award of Arbitrator Marcel Mallet-Prevost 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. /1/ The Union filed an opposition. The dispute in this matter concerns essentially whether the Agency complied with a previous award of the Arbitrator. In the original award the Arbitrator determined that the Agency had violated its merit promotion plan and the collective bargaining agreement by considering and selecting candidates from outside the Agency for two computer analyst positions. Accordingly, the Arbitrator ordered the Agency to vacate the two positions; to run the selection process again, limiting the choices to the four highly qualified candidates from the Agency; and to give backpay to the two employees selected. The Agency filed a petition for review of the award with the Federal Labor Relations Council, and the Council sought from the Civil Service Commission an interpretation of applicable legal requirements and Commission regulations (including those of governing awards of backpay under the Back Pay Act, 5 U.S.C. 5596) as they pertained to the questions raised by the Arbitrator's award. The Commission advised that the Arbitrator's award accorded with Commission regulations and practice and accorded with decisions of the Comptroller General authorizing backpay. Based on the Commission's advice, the Council sustained the award. Social and Rehabilitation Service, Department of Health, Education, and Welfare and American Federation of Government Employees, Local 41, AFL-CIO, 4 FLRC 296 (1976). Thereafter, the arbitration proceeding was reopened to consider whether the Agency had complied with the original award. The Arbitrator determined that the Agency had not complied, and as a remedy awarded as follows: Health Care Financing Administration and the Department of Health, Education, and Welfare shall: 1. Make a selection of 2 of the 4 employees named in the original Award and designate them as the employees who most likely would have been selected in a re-run. If an actual re-run is not feasible at this time, the Agency can certainly make a reasonably fair selection based on available employment records. 2. The 2 selected employees shall receive backpay compensation in the form of backpay, pension payments and other financial benefits - the basis being the difference between what they received in their then current jobs and what they would have received in the posted positions. The back payment period shall run from the date Mandell and Couchoud were appointed to the posted jobs and the date the 2 employees in question are now selected or the date they left Civil Service employment, whichever comes first. 3. The original Contract here involved provides (Art. 19, Sec. E) that the parties will share equally the Arbitrator's fee and expenses; and that the Employer (Agency) will bear the entire cost of the transcript. Since the present proceeding is, in effect, a continuation of the initial proceeding, I find that this Contract provision applies hereto. In its first exception to this award, the Agency contends that the award is contrary to E.O. 11491, the Statute, and the rules and regulations of the Authority and is in excess of the Arbitrator's authority because the Health Care Financing Administration (HCFA) and the Department of Health and Human Services (HHS) are not successors to the Social and Rehabilitation Service (SRS), the abolished agency that failed to comply with the original award. This contention is misplaced. Section 7122(a) of the Statute empowers the Authority to review an exception to an arbitration award to determine if the exception establishes that the award is deficient on one of the bases set forth in section 7122(a)(1) and (2). Thus, section 7122(a) only enables the Authority to resolve an exception that addresses the merits of an arbitration award. In the instant case, instead of asserting in what manner the award is deficient under section 7122(a), the Agency's exception relates solely to whether compliance with the original award can properly be required of HCFA or HHS and the Authority has repeatedly held that the unfair labor practice procedures of the Statute are the appropriate procedures for resolution of disputes concerning compliance with and enforcement of arbitration awards. /2/ See, e.g., Headquarters, U.S. Army Communications Command, et al., Fort Huachuca, Arizona and American Federation of Government Employees, Local 1662, 2 FLRA 785 (1980); January 15, 1982 Order Denying ; Petition for Enforcement of Council of District Office Locals, American Federation of Government Employees, San Francisco Region, AFL-CIO and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 100 (1981). Consequently, this exception provides no basis for finding the award deficient. In its second exception the Agency contends that the Arbitrator exceeded his authority by considering the reconstruction of the original selection action and the reassignments of the incumbents because these were not questions properly before him. However, both the reconstruction and the reassignments were specifically raised by the Agency itself as support for its position before the Arbitrator that there had been compliance with the original award. Thus, the Agency has not established that the Arbitrator exceeded his authority by considering such contentions in the course of resolving the submitted issue of whether the Agency had complied with the original award. See, e.g., Social Security Administration and American Federation of Government Employees, AFL-CIO, Local No. 1923, 5 FLRA No. 33 (1981); Federal Aviation Science and Technological Association, Local No. 291, Fort Worth, Texas and Federal Aviation Administration, Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas, 3 FLRA 544, 548 (1980). In its third exception the Agency contends that the Arbitrator's findings as to the reconstruction of the selection action and the reassignments of the incumbents are contrary to Federal Personnel Manual (FPM) chapter 335. However, this exception does not address, and thus does not demonstrate, in what manner the award of the Arbitrator is contrary to FPM chapter 335. Instead, the Agency's contentions constitute nothing more than disagreement with the findings of fact made by the Arbitrator and with the reasoning and conclusions employed by the Arbitrator to resolve the merits of the compliance issue, and it is well established that such contentions provide no basis for finding an award deficient. E.g., Department of the Air Force, McGuire Air Force Base and American Federation of Government Employees, Local No. 1778, 6 FLRA No. 50 (1981); American Federation of Government Employees, National Border Patrol Council and U.S. Immigration and Naturalization Service, Southern Region, Dallas, Texas, 3 FLRA 540 (1980). In its fourth exception the Agency contends that the collective bargaining agreement provision involved in the original award is contrary to E.O. 11491, Civil Service Rule 7.1, 5 CFR 335.103, and FPM chapter 335. However, the Agency again does not address in this exception, and thus again does not demonstrate, in what manner the award is contrary to the Order and/or the cited civil service rules and regulations. Rather, this exception merely constitutes an attempt to relitigate the original award which was specifically sustained on review by the Council, and consequently this exception provides no basis for finding the present award deficient. See, e.g., American Federation of Government Employees, Local 2206 and Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 6 FLRA No. 103 (1981). In its fifth exception the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the issue of backpay was rendered moot by the decision of the Agency not to fill the positions in dispute after reassigning the incumbents. However, this exception again is premised merely on the Agency's contention that it complied with the original award and therefore constitutes nothing more than disagreement with the Arbitrator's finding that there had been no compliance with the original award. Consequently, this exception provides no basis for finding the award deficient. See, e.g., U.S. Department of Labor and American Federation of Government Employees, Local 644, 5 FLRA No. 11 (1981). Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., June 24, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency filed timely exceptions to the Arbitrator's award. After the period for filing exceptions had expired, the Agency filed a request to amend the exceptions and enclosed the amended exceptions. The Union opposed the Agency's request. Because the proposed amendment would have added an additional ground on which review of the award was requested, the request is denied and only the grounds stated in the original exceptions have been considered by the Authority. /2/ For this reason the petition for enforcement of the award filed by the Union must be, and hereby is, denied.