12:0257(59)AR - Social and Rehabilitation Service, Department of Health, Education, and Welfare and AFGE Local 41 -- 1983 FLRAdec AR



[ v12 p257 ]
12:0257(59)AR
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 not