[ v20 p783 ]
The decision of the Authority follows:
20 FLRA No. 91 DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA, SYRACUSE Activity and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL NO. R2-65 Union Case No. 0-AR-926 DECISION 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. /1/ 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 (s)--- Henry B. Frazier III, Acting Chairman (s)--- 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 alleged. /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.