[ v13 p57 ]
The decision of the Authority follows:
13 FLRA No. 12 U.S. ARMY AVIATION CENTER, FORT RUCKER, ALABAMA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1815, AFL-CIO Union Case No. O-AR-331 DECISION This matter is before the Authority on an exception to the award of Arbitrator William T. Rutherford filed by the Union 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 dispute in this matter concerns the denial of a noncompetitive career promotion to the grievant when his position was reclassified at a higher grade because of the assignment of additional duties. A grievance disputing the denial was filed and submitted to arbitration. The Arbitrator determined that the assignment of additional duties was the result of planned management action, a situation addressed in the merit promotion plan negotiated by the parties. The Arbitrator noted that the plan provides an exception to the application of competitive procedures in filling upgraded positions only when the upgrade was not the result of planned management action. Thus, in accordance with the negotiated merit promotion plan, the Arbitrator ruled that competitive procedures were required in this case. Consequently, he denied the grievance. In its exception the Union essentially claims that the award is deficient because the merit promotion plan requirement of competitive procedures in this case had been invalidated by the issuance in 1979 of a revised Federal Personnel Manual (FPM) chapter 335, which specifically eliminated the requirement of competitive procedures for filling positions upgraded as a result of planned management action, and had also been invalidated by the issuance of corresponding agency regulations. The Authority concludes that the exception fails to establish that the award is deficient. The revised FPM provision on which the exception is founded neither prohibits the application of competitive procedures nor mandates the granting of a noncompetitive career promotion. /1/ Rather, the provision permits an agency to act to exclude in its merit promotion plan such a career promotion from the application of competitive procedures. Thus, affirmative action or negotiated agreement in this respect is required on the part of an agency, and the provision of the merit promotion plan requiring the application of competitive procedures is maintained until such action or agreement. Consequently, the regulatory provisions on which the exception is based were not in conflict with the merit promotion plan provision negotiated, and evidently maintained, by the parties requiring the application in this case of competitive procedures. /2/ Accordingly, the exception is denied. Issued, Washington, D.C., September 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ FPM chapter 335, subchapter 1-5c(1)(b) (1979) provides: c. Agencies may at their discretion except other actions from their plans. These include, but are not limited to: (1) The two types of career promotions: . . . . (b) A promotion resulting from an employee's position being reclassified at a higher grade because of additional duties and responsibilities. /2/ It should be noted that the Joint Explanatory Statement of the Committee on Conference stated in the Conference Report, which accompanied the bill that was enacted and signed into law, as follows: Senate Section 7218(a)(1) stated that in the administration of all matters covered by the collective bargaining agreement the officials and employees shall be governed by any future laws and regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual, and any subsequently published agency policies and regulations required by law or by the regulations of appropriate authority. The House amendment does not contain this provision. Instead, House section 7116(a)(7) makes it an unfair labor practice for an agency * * * to prescribe any rule or regulation which restricts the scope of collective bargaining or which is in conflict with any applicable collective bargaining agreement. The conference report authorizes, as in the Senate bill, the issuance of governmentwide rules or regulations which may restrict the scope of collective bargaining which might otherwise be permissible under the provisions of this title. As in the House, however, the Act generally prohibits such governmentwide rule or regulation from nullifying the effect of an existing collective bargaining agreement. The exception to this is the issuance of rules or regulations implementing Section 2302. Rules or regulations issued under Section 2302 may have the effect of requiring negotiation of a revision of the terms of a collective bargaining agreement to the extent that the new rule or regulation increased the protection of the rights of employees. S. Rep. No. 95-1272, 95th Cong., 2d Sess. 154-55 (1978).