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U.S. Federal Labor Relations Authority

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20:0444(49)AR - Air Force, 1947 Support Group and AFGE-GAIU, Council of HQ, USAF Locals -- 1985 FLRAdec AR

[ v20 p444 ]
The decision of the Authority follows:

 20 FLRA No. 49
                                       Case No. 0-AR-899
    This matter is before the Authority on exceptions to the award of
 Arbitrator Louis Aronin filed by the Union and the Agency under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.  /1/
    The grievance before the Arbitrator was on the merits of the dispute
 over the grievant's failure to be selected for the Agency's Comptroller
 Civilian Career Management Program (CCCMP) Cadre.  The Arbitrator in a
 previous award had found only certain aspects of the grievance to be
 arbitrable.  As to that aspect of the grievance relating to the
 interview portion of the selection process for the CCCMP cadre, the
 Arbitrator as his award denied the grievance.  He determined that the
 Union had not cited any statute or regulation that specifically or by
 inference precluded the type of interview utilized by the Agency as part
 of the evaluation process for selection to the cadre.  The other aspect
 of the grievance related to the grievant's claim that he was improperly
 denied credit for his budget analyst experience.  The Arbitrator noted
 that the crediting plan provision for experience in comptroller career
 program specialties required a notice of personnel action form (SF 50)
 which showed at least one year in two or more comptroller job
 specialties in a classification series other than that held by the
 applicant.  The Arbitrator also acknowledged that the grievant's budget
 analyst experience did not qualify under this crediting plan provision.
 Nevertheless, the Arbitrator determined that the grievant had budget
 analyst experience that should be credited.  Accordingly, as to this
 aspect of the grievance, the Arbitrator as his award ordered that the
 grievant shall be given credit for his budget analyst experience.
    The Union's exceptions that were timely filed appear to pertain only
 to the award insofar as it denied that aspect of the grievance relating
 to the interview portion of the selection process for the CCCMP cadre.
 Specifically, the Union contends that the award in this respect is
 contrary to numerous laws, rules, and regulations and is not supported
 by the record evidence.  The Union further contends that the Arbitrator
 made erroneous procedural rulings, exceeded his authority, and did not
 adjudicate the matter under the proper legal framework.  The Authority
 concludes that the Union's exceptions provide no basis for finding the
 award in this respect deficient.
    As has been noted, the Arbitrator in denying this aspect of the
 grievance expressly determined that the Union had in no manner
 demonstrated the illegality of the interview process and had not
 established that the weight given the interview should be changed. The
 Authority similarly finds that the Union in merely repeating those
 contentions in its exceptions to the award fails to demonstrate that the
 award in this respect is contrary to any law, rule, or regulation.  The
 Authority further finds that the remaining exceptions and contentions
 constitute nothing more than disagreement with the Arbitrator's findings
 of fact, evaluation of evidence and testimony, and reasoning and
 conclusions and consequently provide no basis for finding the award
 deficient.  See, e.g., Federal Correctional Institution, Petersburg,
 Virginia and American Federation of Government Employees, Local 2052,
 Petersburg, Virginia, 13 FLRA 108(1983).
    In its exceptions the Agency primarily argues that the award is
 deficient insofar as the Arbitrator has overruled the crediting plan
 provision limiting full credit for budget analyst experience to
 experience in positions in a budget analyst classification series.  The
 Authority agrees.
    In Montana Air Chapter of Association of Civilian Technicians and
 U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA
 No. 112(1985), the Authority specifically agreed with the rationale of
 the court in Department of Treasury, U.S. Customs Service v. FLRA, 762
 F.2d 1119 (D.C. Cir. 1985), vacating National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, Washington, D.C.,
 11 FLRA 247(1983).  In Department of Treasury, U.S. Customs Service, the
 U.S. Court of Appeals for the D.C. Circuit found that a union crediting
 plan, which included points for experience, was inconsistent with 5 CFR
 300.103(a) /2/ because the union's proposed employment "measurement
 instruments" were not based on a prior job analysis to determine if the
 criteria for which credit would be given were job related.  762 F.2d at
 1122.  Moreover, the court rejected the contention that the proposed
 crediting plan was bargainable because there was no reason to believe
 that any job analysis would find the proposal unrelated to job
 requirements.  To the court, "the mere permissibility of an ex post
 facto job analysis, and the mere absence of a showing that such an
 analysis, if conducted, would invalidate the previously adopted
 measurement devices, falls far short of fulfilling the requirement that
 those devices 'be based on a job analysis to identity . . . (t)he
 factors that are important in evaluating candidates.' 5 CFR 300.103(a)."
 Id.  The Authority finds these considerations equally applicable to the
 review of exceptions to arbitration awards when the awards resolve
 grievances challenging an employee's evaluation under an established
 crediting plan.  In terms of this case, as has been noted, the
 Arbitrator rejected the provision for crediting experience in
 comptroller career program specialties established by the crediting
 plan.  Instead, he directed that the grievant shall be given credit for
 budget analyst experience although the Arbitrator acknowledged that the
 experience was not gained in a position in a qualifying classification
 series as provided by the crediting plan.  Neither the award nor the
 record indicates that the measurement device used by the Arbitrator in
 ordering that the grievant be credited for budget analyst experience
 gained in other than the required classifications was based on a
 preliminary job analysis and an ex post facto analysis cannot satisfy
 that requirement.  Thus, because the award in effect directs the Agency
 to allow credit for experience not shown to be job-related, it is
 deficient as contrary to 5 CFR 300.103 and must be modified.
 Accordingly, the award is modified by striking the order to credit the
 grievant for budget analyst experience.  /3/
    Issued, Washington, D.C., September 30, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Union filed timely exceptions to the supplementary
 Arbitrator's award.  After the period for filing exceptions had expired,
 the Union filed amended exceptions.  The Agency opposed the filing of
 amended exceptions by the Union.  Because the proposed amended
 exceptions have not added additional grounds on which review of the
 award was requested, the amended exceptions have been considered by the
 Authority.  See Social and Rehabilitation Service, Department of Health,
 Education and Welfare and American Federation of Government Employees,
 Local 41, AFL-CIO, 12 FLRA 257(1983).  However, to the extent the
 Union's exceptions relate to an arbitrability award dated October 20,
 1982, they are untimely and are dismissed.
    /2/ 5 CFR 300.103(1983) pertinently provides:
          Sec. 300.103 Basic requirements.
          (a) Job analysis.  Each employment practice of the Federal
       Government generally, and of individual agencies, shall be based
       on a job analysis to identify:
          (1) The basic duties and responsibilities;
          (2) The knowledges, skills, and abilities required to perform
       the duties and responsibilities;  and
          (3) The factors that are important in evaluating candidates.
       The job analysis may cover a single position or group of
       positions, or an occupation or group of occupations, having common
    /3/ In view of this decision, it is not necessary for the Authority
 to address the Agency's other exceptions to the award.