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25:0509(36)AR - Local R-1-185, NAGE and The Adjutant General of the State of Connecticut -- 1987 FLRAdec AR

[ v25 p509 ]
The decision of the Authority follows:

 25 FLRA No. 36
                                            Case No. 0-AR-1177
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator Ernest C. LaFollette filed by the Agency under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
    The grievance in this case concerned the filling of an aircraft
 ordnance systems mechanic, general foreman position.  The Agency
 advertised the position in a Technician Information Bulletin.  The
 announcement specified the qualifications for the position and indicated
 that it could be filled either as a civilian technician position or as
 an active duty military position for an Active Guard Reserve (AGR) tour.
  The qualifications included 36 months experience in certain listed
 functions and possession of a certain Air Force Specialty Code (AFSC).
 The Agency determined that five qualified technicians applied and two
 qualified AGR candidates applied.  The Agency filled the position as an
 active duty military tour.  A grievance was filed on behalf of a
 civilian technician who was not selected for the position.  The
 grievance alleged that the Agency violated Technician Personnel
 Procedures (TPP) No. 4-2, entitled Merit Promotion Procedures, primarily
 because the AGR candidate selected for the position did not meet the
 requisite qualifications.  The grievance proceeded to arbitration.
    The Agency essentially made two arguments before the Arbitrator.
 First, the Agency argued that the grievance was neither grievable nor
 arbitrable.  In support of this argument, the Agency asserted that
 because the position was filled as an active duty military position, the
 grievance concerned a purely military matter and that its action in
 filling the position was not subject to the Technician Personnel
 Procedures or to the parties' collective bargaining agreement, including
 the negotiated grievance procedures.  Second, the Agency argued that the
 selection of the AGR candidate was protected under section 7106(a)(2)(C)
 of the Statute.
    The Arbitrator determined that the grievance was arbitrable.  He
 based his determination on his interpretation of the parties' agreement
 as including "published agency policies" and, specifically, TPP 4-2.  On
 the merits, the Arbitrator determined that the selection action did not
 conform to TPP 4-2.  The Arbitrator found that by advertising the
 position to civilian technicians, the Agency was required under TPP 4-2
 to select the best qualified among the applicants, including both
 technicians and AGR personnel.  The Arbitrator concluded that the Agency
 had not done so in this case because it appeared that the AGR candidate
 who was selected lacked the AFSC qualification and instead was
 assertedly qualified by the Agency administering him a special test.
 The Arbitrator found that there was an appearance of unfairness and that
 the basis for the individual's selection under the applicable procedures
 had not been adequately explained.  Accordingly, as his award, the
 Arbitrator ordered that the Agency reconsider the matter and select from
 among the best qualified applicants who had already applied.
                             III.  EXCEPTIONS
    As its exceptions the Agency contends that the Arbitrator's award
 finding the grievance arbitrable and resolving the dispute on the merits
 is deficient on four grounds:  (1) the award is contrary to law, rule,
 and regulation:  (2) the award does not draw its essence from the
 parties' collective bargaining agreement;  (3) the award is so
 incomplete, ambiguous, or contradictory that implementation is
 impossible;  and, (4) the Arbitrator exceeded the scope of his
 authority.  In support of its exceptions the Agency essentially
 reiterates the same arguments made before the Arbitrator.
                       IV.  ANALYSIS AND CONCLUSION
                             A.  Arbitrability
    The Agency argues as it did before the Arbitrator that the grievance
 in this matter is not grievable because the position involved was
 eventually filled as an active duty military position.  We find that the
 Agency's argument is without merit.
    Section 7103(a)(9) of the Statute defines "grievance" as any
 complaint "by any employee concerning any matter relating to the
 employment of the employee . . . or a claim of breach of a collective
 bargaining agreement or any claimed violation, misinterpretation, or
 misapplication of any law, rule, or regulation affecting conditions of
 employment." Moreover, unless specifically excluded, grievances are
 covered by negotiated grievance procedures.
    We find that where, as here, an agency announces a position vacancy
 and seeks applications from qualified employees, a grievance alleging a
 violation of an agency regulation or collective bargaining agreement in
 the selection process is a "grievance" within the meaning of section
 7103(a)(9).  In the absence of any specific exclusion, such a grievance
 properly may be determined by an arbitrator to be grievable and
 arbitrable under negotiated grievance procedures.  We conclude that the
 Agency has failed to establish that the Arbitrator's determination that
 the employee's grievance in this case was arbitrable is contrary to law,
 rule or regulation, or that the determination is in any way deficient as
                                B.  Merits
    It is well established that in filling positions, management has the
 right under section 7106(a)(2)(C) of the Statute to make the actual
 substantive determination in the selection and appointment process.
 American Federation of Government Employees, Local 3553, AFL-CIO and
 Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA
 No. 65 (1985).  Moreover, the Authority has 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 or from any other appropriate source.  Defense
 Contract Administration Services Management Area, Syracuse and National
 Association of Government Employees, Local No. R2-65, 20 FLRA No. 91
 (1985);  U.S. Army Infantry Center, Ft. Benning, Georgia and American
 Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA 161
 (1983).  However, the Authority has repeatedly indicated in disputed
 selection action cases that where an arbitrator finds that the selection
 process did not conform to applicable requirements, such as requirements
 in agency regulations, the arbitrator may order the selection action
 rerun or reconstructed as corrective action.  For example, Defense
 Contract Administration Services Management Area (DCASMA), Cedar Rapids,
 Iowa and American Federation of Government Employees, Local 2752,
 AFL-CIO, 10 FLRA 547 (1982);  Adjutant General, State of Oklahoma, Air
 National Guard and American Federation of Government Employees, Will
 Rogers Air National Guard Local 3953, 8 FLRA 112 (1982).
    In this case, we find, in agreement with the Agency, that the award
 is deficient insofar as the Arbitrator directed a selection from among
 the best qualified applicants who had applied.  To the extent the award
 may limit the Agency in filling the position to the list of best
 qualified civilian technician candidates and preclude the Agency from
 filling the position from another appropriate source, that is, from
 among active duty military candidates, the award is contrary to section
 7106(a)(2)(C).  However, we also find that the Agency provides no basis
 for finding the award deficient insofar as the Arbitrator ordered the
 selection action to be "reconsidered," in other words, to be rerun or
 reconstructed.  The Arbitrator found an appearance of unfairness that
 had not been adequately explained as a result of which the selection
 action failed to conform to TPP 4-2.
                               V.  DECISION
    For the above reasons, the award on the merits is modified to provide
 the following remedy in place of that directed by the Arbitrator:
          The Agency shall reconstruct or rerun the selection action in
       this case.  The reconstruction or rerunning of the selection
       action by the Agency must conform with controlling law and
       regulation and the parties' collective bargaining agreement, and
       must be communicated and explained to the Union and the original
       best qualified applicants for the position.
    Issued, Washington, D.C., February 4, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY