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13:0057(12)AR - Army Aviation Center, Fort Rucker, AL and AFGE Local 1815 -- 1983 FLRAdec AR

[ v13 p57 ]
The decision of the Authority follows:

 13 FLRA No. 12
                                            Case No. O-AR-331
    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
    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
    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
    /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).