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20:0783(91)AR - Defense Contract Administration, Service Management Area, Syracuse and NAGE Local R2-65 -- 1985 FLRAdec AR

[ v20 p783 ]
The decision of the Authority follows:

 20 FLRA No. 91
                                            Case No. 0-AR-926
    This matter is before the Authority on exceptions to the award of
 Arbitrator James A. Gross filed by the Activity under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
    The issue before the Arbitrator was whether the Activity violated the
 parties' collective bargaining agreement by noncompetitively appointing
 a cooperative education student-trainee to a career ladder Contract
 Specialist position.  According to the Arbitrator, the Activity
 advertised the position and the top five "Best Qualified" applicants
 were referred to the selecting official pursuant to the competitive
 procedures of the parties' negotiated merit promotion pLan.  Two
 university students who had participated in a cooperative education
 work-study program under a agreement between the defense Logistics
 Agency and their university also applied for the position.  After
 interviewing the candidates, the selecting official chose one of the
 student-trainees for the position and she was subsequently appointed to
 the position noncompetitively pursuant to Executive Order 12015.  /2/ A
 grievance was filed by one of five Best Qualified candidates who had
 been referred but not selected, alleging that the selection of the
 cooperative education student violated the parties' collective
 bargaining agreement.
    The Arbitrator found that merit promotion plans must list any
 exceptions to the competitive procedures of the plans.  The Arbitrator
 further found that the parties' negotiated merit promotion plan lifted a
 number of actions to which the competitive procedures did not apply but
 that noncompetitive conversion of cooperative education students was not
 one of the exceptions.  The Arbitrator rejected the Activity's argument
 that the list was not all-inclusive and in effect concluded that the
 parties' intentionally did not include noncompetitive conversion of
 cooperative education appointments as an exception to the plan.  The
 Arbitrator also rejected the Activity's contention that management
 retained the right under section 7106(a)(2)(C) of the Statute to select
 the student-trainee for the position.  As his award, the Arbitrator
 determined that the Activity violated the parties' agreement by
 noncompetitively appointing the student-trainee to the position and
 ordered that the individual who was selected he removed from the
 position and that the competitive process be reconstructed.
    As one of its exceptions the Activity contends that the award is
 contrary to section 7106(a)(2)(C) of the Statute.  The Authority agrees.
    It is well established that an arbitrator's award may not interpret
 or enforce a collective bargaining agreement so as to improperly deny
 the authority of an agency to exercise its rights under section 7106 of
 the Statute.  E.g., Veterans Administration Hospital, Lebanon,
 Pennsylvania and American Federation of Government Employees, AFL-CIO,
 Local 1966, 11 FLRA 193 (1983).  The Authority had expressly held that
 section 7106(a)(2)(C) provides for management's right in filling
 positions to make a selection from a group of properly ranked and
 certified candidates for promotion of from any other appropriate source.
  E.g.,, Internal Revenue Service, Jacksonville District and National
 Treasury Employees Union, 15 FLRA No. 2 (1984).
    In terms of this case, the Arbitrator's award in effect precludes the
 Activity from filling the Contract Specialist position noncompetitively
 by selecting and converting the appointment of the cooperative education
 student-trainee instead of selecting of the best Qualified candidates
 who were considered pursuant to the parties merit promotion plan.  The
 award therefore improperly denies management the authority to exercise
 its right under section 7106(a)(2)(C) to make a selection from an
 appropriate source other than the parties' merit promotion plan.
    Accordingly, the award is set aside as contrary to section
 7106(a)(2)(C) of the Statute.  /3/
    Issued, Washington, D.C., November 29, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In its opposition, the Union assets that the Activity's
 exceptions were untimely filed and were otherwise procedurally
 deficient.  However, the Authority has determined that the exceptions
 were timely filed under sections 2424.1(b), 2429.21 and 2429.22 of the
 Authority's Rules and Regulations, as amended (49 Fed.  Reg. 22623
 (1984)), and that they were not otherwise procedurally deficient as
    /2/ E.O. 12015 (1977), reprinted 3 U.S. Code Cong. and Ad.  News 4695
 (1977), as amended by E.O. 12017 (1978), reprinted 7 U.S. Code Cong. and
 Ad.  News 9781 (1978), provides, in pertinent part, that the appointment
 of a student who has completed an approved career-related work-study
 program may be converted noncompetitively to a career or career
 conditional appointment.
    /3/ In view of this decision, it is not necessary to address the
 Activity's other exception to the award.