34:0691(119)AR - - Adjutant General, State of Oklahoma, ANG,Tulsa, OK and NAGE Local R8-17 - - 1990 FLRAdec AR - - v34 p691
[ v34 p691 ]
The decision of the Authority follows:
34 FLRA No. 119
FEDERAL LABOR RELATIONS AUTHORITY
STATE OF OKLAHOMA, AIR NATIONAL GUARD
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
February 1, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes. The National Association of Government Employees, Local R8-17 (the Union) filed a grievance claiming that a vacancy announcement did not comply with applicable regulations and the parties' collective bargaining agreement. The Arbitrator ruled that the vacancy announcement complied with applicable regulations and the provisions of the collective bargaining agreement. Accordingly, he denied the grievance.
The Union filed exceptions 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 National Guard Bureau (the Agency) filed an opposition to the Union's exceptions on behalf of the Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma (the Activity).
For the reasons stated below, we conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in the Statute. Accordingly, we will deny the Union's exceptions.
In January 1988, the GS-9 production controller in functional area 2121 (FA 2121) at the Activity agreed to accept a voluntary downgrade to his former position of GS-8 production controller in FA 2121. On January 13, 1988, a classification action was initiated to reduce the employee from the military grade of E-7 to E-6.
On February 1, 1988, the vacancy for the GS-9 production controller position was announced. The announcement stated that military positions compatible with the GS-9 production controller position were those in grades E-4 through E-6. The area of consideration for the announcement included all employees currently employed in FA 2121. Five employees were employed as GS-8 production controllers in FA 2121 in addition to the employee who had been downgraded.
Two GS-8 employees applied for the position and one was selected. At the time of the selection, the former GS-9 employee had not yet been officially reduced in military grade from E-7 to E-6. Consequently, the selection resulted in "grade inversion" because the selected employee in her civilian capacity (GS-9) would be supervising an employee of a higher military grade (E-7). Grade inversion is not permitted under Agency regulations.
On March 15, 1988, the Activity requested a waiver of Agency regulations on grade inversion. On March 16, 1988, the selected employee was detailed to the GS-9 production controller position for a period not to exceed 120 days. On March 31, 1988, the National Guard Bureau approved a waiver of the grade inversion regulations for a period of 12 months. On April 10, 1988, the selected employee was temporarily promoted to the position. Thereafter, the downgraded employee was officially reduced in military grade to E-6, and on June 3, 1988, the selected employee was permanently promoted to the GS-9 production controller position.
The Union filed a grievance claiming that the vacancy announcement did not comply with the Oklahoma Military Department merit promotion plan (OMD-TPR-335) and the parties' collective bargaining agreement. The Union claimed that the area of consideration was not wide enough to ensure a sufficient number of qualified candidates, as required by OMD-TPR-335. The Union also claimed that the Activity improperly requested a waiver of grade inversion regulations in order to select an employee from the area of consideration. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the vacancy announcement complied with applicable regulations and the collective bargaining agreement.
III. The Arbitrator's Award
The Arbitrator determined that the "crux of the case" was whether the size or scope of the area of consideration was proper under the regulations. Arbitrator's Award at 12. The Arbitrator noted that all the relevant regulatory provisions specify that the area of consideration should be broad enough to reasonably assure a pool of qualified candidates. The Arbitrator also noted that none of the applicable regulatory provisions specified any minimum or particular number of candidates. Instead, the regulations require only an area of "sufficient" size to produce a pool of "highly qualified" candidates. Id. The Arbitrator also noted that "an abundance of discretion is left to the nominating authority." Id. at 13. The Arbitrator further noted that OMD-TPR-335 listed some types of "standard areas of consideration" to include "functional area." Id.
The Arbitrator found that the specified area of consideration provided a realistic potential of providing three candidates well-qualified for the position. "In view of the measure of discretionary judgement allowed by the pertinent regulations," he concluded that this number was sufficient and in accordance with applicable regulations and the parties' collective bargaining agreement. Id. at 14.
Because the area of consideration provided two applicants "uniquely qualified" to fill the position, the Arbitrator also concluded that it was prope