26:0158(17)AR - AFSCME Local 2478 and Commission on Civil Rights -- 1987 FLRAdec AR

 26 FLRA No. 17
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES, 
 LOCAL 2478, AFL-CIO
 Union
 
 and
 
 U.S. COMMISSION ON CIVIL RIGHTS
 Agency
 
                                            Case No. 0-AR-1206
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert E. Mullin filed by the Agency 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 Union filed an
 opposition.  /*/
 
                  II.  Background and Arbitrator's Award
 
    The issues in the dispute before the Arbitrator were whether the
 Agency violated the procedures set forth in Article X of the parties'
 collective bargaining agreement in filling a GS-13 Program Analyst
 position and whether the Agency further violated Article X by failing to
 post a vacancy announcement for a temporary GS-9/GS-11 Civil Rights
 Analyst position for at least ten days.  Article X, Section 8 of the
 parties' agreement provides that:  "(F)or all vacancies where there are
 five or more eligible candidates, a promotion committee will be convened
 to evaluate and rank the eligible candidates." The Agency stipulated
 that six people applied for the Program Analyst position.  However, the
 Agency did not convene a rating panel to consider the applications
 because two of the candidates were already GS-13s.  Further, although
 Article X, Section 6(c) of the agreement requires vacancy announcements
 to be posted on bulletin boards within the minimum area of consideration
 for not less than ten working days, the Agency did not post an
 announcement for the temporary position of Civil Rights Analyst for the
 required period.
 
    The Agency's former Director of Personnel for the period when the
 parties' current collective bargaining agreement was initially
 negotiated testified that it was the intent of the agreement and the
 practice during his tenure:  to routinely establish panels whenever
 there were five or more applicants;  to consider as irrelevant the
 grades of the applicants in determining whether there were five or more
 eligible candidates;  and to post all vacancies including temporary
 positions unless they were specifically excepted from coverage of
 Article X elsewhere in the agreement.
 
    The Arbitrator found merit to both segments of the grievance.  The
 Arbitrator concluded that the Agency violated Article X, Section 8 of
 the agreement by failing to convene a promtion committee to evaluate and
 rank the eligible candidates for the Program Analyst vacancy. In
 reaching that conclusion, the Arbitrator rejected the Agency's arguments
 that reference to Federal Personnel Manual (FPM) chapter 335 in the
 agreement limited the application of the agreement provision to
 promotion actions only and that the lack of sufficient eligible
 candidates for promotion relieved it of the obligation to convene a
 committee.  The Arbitrator found that the general reference to FPM
 chapter 335 did not negate the specific requirements set forth in the
 rest of the Article;  that the Article applied to all vacant positions
 agency-wide;  and that FPM chapter 335 was referred to merely as a
 starting point for the parties' discussions.  Further, the Arbitrator
 found that as this was not a reassignment and as there were no other
 exclusions to the Merit Promotion Staffing Plan applicable to the
 applicants who were at the same grade as the vacancy, there was no
 distinction between the GS-13 and GS-12 applicants.  Accordingly, the
 Arbitrator concluded that Article X, Section 8 applied.  Additionally,
 the Arbitrator, relying on the clear language of Article X, Section 6(c)
 and the practice during the former Personnel Director's tenure with
 regard to all temporary positions, concluded that the Agency violated
 the agreement by not posting the temporary Civil Rights Analyst position
 for ten days.
 
    The Arbitrator also found that Article X, as interpreted by the
 Union, is not inconsistent with any law, rule or regulation and is
 enforceable.  Relying on applicable law, he concluded that the parties
 have broad latitude to negotiate such procedures surrounding the
 exercise of management's section 7106(a) rights.  He found that these
 rights may be limited by procedures negotiated under section 7106(b) as
 long as they do not have the effect of eliminating management authority
 by preventing it from acting at all, citing Department of Defense,
 Army-Air Force Exchange Service v. Federal Labor Relations Authority,
 659 F.2d 1140, 1153 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945 (1982).
 
    As a remedy the Arbitrator ordered the Agency to apply the terms of
 Article X of the agreement to all vacancies and to promptly vacate the
 positions which were improperly filled.
 
                           III.  First Exception
 
                              A.  Contentions
 
    In its first exception, the Agency contends that the Arbitrator erred
 in concluding that Article X of the parties' agreement is applicable to
 the filling of all vacancies because that provision assertedly applies
 only to merit promotions.  The Agency further contends that the
 Arbitrator erred in applying Article X to the Program Analyst selection
 action because that provision assertedly only applies when there are
 five or more candidates for promotion and in this case some of the six
 candidates were seeking reassignment and not promotion.  In support of
 its contention, the Agency argues that the Arbitrator's analysis and
 conclusions were flawed and contrary to the established principles of
 contract interpretation, and that the Arbitrator's interpretation of the
 agreement interferes with management's right to select under section
 7106(a) of the Statute.
 
                       B.  Analysis and Conclusions
 
    We conclude that the Agency has failed to establish that the
 Arbitrator's award is deficient as alleged.  Rather, the Agency is
 attempting to relitigate the merits of the case before the Authority.
 The thrust of the Agency's assertions essentially constitutes nothing
 more than disagreement with the Arbitrator's findings of fact, his
 specific reasoning and conclusions, and with his interpretation and
 application of the parties' agreement.  It is well established that
 these arguments provide no basis for finding an award deficient under
 the Statute.  For example, General Services Administration and American
 Federation of Government Employees, Council 236, 15 FLRA 328, 329
 (1984).
 
                           IV.  Second Exception
 
                              A.  Contentions
 
    In its second exception, the Agency contends that the award is
 contrary to FPM chapter 335, appendix A, because it requires that the
 positions that were filled must be vacated in advance of the rerunning
 of the selection actions.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency.  The Authority has repeatedly held that an
 incumbent employee is entitled pursuant to FPM chapter 335, appendix A,
 section A-4b to be retained in the position pending corrective action
 unless it is specifically determined that the incumbent could not
 originally have been properly selected.  For example, American
 Federation of Government Employees, Local 1546 and Sharpe Army Depot,
 Department of the Army, Lathrop, California, 16 FLRA 1122, 1123 (1984);
 United States Department of Justice, Immigration and Naturalization
 Service and American Federation of Government Employees, Local 1917, 14
 FLRA 638 (1984).  In this case the Arbitrator did not specifically
 determine that a reconstruction of the selection actions showed that the
 selected employees could not have been selected had the proper
 procedures been followed at the time the actions were taken.  Therefore,
 to the extent that the Arbitrator ordered the positions vacated in
 advance of corrective action, the award is deficient as contrary to FPM
 chapter 335, appendix A, section A-4, and must be modified.
 
                               V.  Decision
 
    For the reasons stated above, the Agency's first exception is denied.
  In accordance with our finding concerning the Agency's second
 exception, paragraph 1 of the Arbitrator's award is modified as follows:
 
          In accordance with the findings set forth above, the Grievance
       here involved is sustained.  Accordingly, the Agency will apply
       the terms of Article X of the collective bargaining agreement to
       all vacancies.  The Agency will rerun the selection actions for
       the positions of Program Analyst and Civil Rights Analyst.  The
       rerunning of the selection actions and any related actions
       involving the incumbent employees to these positions must fully
       conform with controlling law and regulation and with the parties'
       collective bargaining agreement as construed herein.
 
    Issued, Washington, D.C., March 12, 1987
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In its opposition, the Union contends that the Agency's
 exceptions were untimely filed.  However, we have determined that the
 exceptions were timely filed under sections 2425.1, 2429.21 and 2429.22
 of the Authority's Rules and Regulations.