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35:1016(110)AR - - DOD, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, DC and AFGE Local 3407 - - 1990 FLRAdec AR - - v35 p1016

[ v35 p1016 ]
The decision of the Authority follows:

35 FLRA No. 110










LOCAL 3407




May 7, 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 John J. McGovern filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency did not timely file an opposition to the Union's exception.(1) The Arbitrator denied the grievance over the Agency's failure to reassign the grievant to a position for which the grievant had applied and initially been selected.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievant, a GS-11 employee assigned to the Agency's Scientific Data Department, applied for a reassignment to one of four vacant GS-11 positions advertised by the Agency. The listing of candidates, which was forwarded to the selecting official on an Agency form, was divided in two sections. Section 1 contained two candidates and was entitled "Merit Staffing Assignments". Award at 1. Section 2 contained nine candidates and was entitled "Non-Competitive Candidates." Id. The grievant's name was contained in section 2 under the caption "Re-Assignment Eligibles." Id.

The grievant's name, plus the names of six other employees, was hand-written in section 6a of the form, entitled "Name of Selectee." Id. However, as all seven employees, identified on the form as non-competitive candidates, were employed in two Agency departments, a "management decision was made to fill only two of the vacancies based on a decision that the work product of those departments would be adversely affected." Id. at 2. Accordingly, two of the seven employees were selected for the vacancies. When the grievant was not selected, he filed a grievance which was submitted to arbitration.

Before the Arbitrator, the Union asserted that the issue was whether the Agency violated its regulations. According to the Union:

[O]nce the vacancy announcement was made, management . . . was obligated to use competitive procedures to fill the positions, . . . [and] once [the grievant] was notified of his selection, management had no alternative other than to reassign him to the position in question.

Id. The Agency contended that it had "absolute discretion" to determine whether to fill the vacant positions and that its decision to fill the positions through reassignments was not subject to competitive procedures. Id.

The Arbitrator noted that the grievant, and other employees listed in section 2 of the Agency form, were identified as "exceptions to the Merit Staffing Program[.]" Id. The Arbitrator also noted testimony at the arbitration hearing which indicated that a selecting official has "complete discretion" to select, or not select, reassignment eligibles. Id. Finally, the Arbitrator stated that Article 5 of the parties' agreement was "clear, concise, precise and totally lacking in ambiguity in granting management sole discretion in the resolution of the matter" before him.(2) Id. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exception

The Union contends that the Arbitrator's award is contrary to Agency Regulation 1405.2, entitled "H[ydrographic] T[opographic] C[enter] Merit Staffing Program," which was attached to the Union's exception. In particular, the Union notes that the Regulation provides that competitive procedures apply to a "[r]eassignment or voluntary demotion to a position with known promotion potential greater than the position from which reassignment or demotion takes place." Id. at 9. The Union asserts that the department where the position for which the grievant applied was located has more GS-12 positions than the department where the grievant is employed and, accordingly, the position for which the grievant applied had greater promotion potential than the grievant's position. As a result, the Union asserts that competitive procedures applied to the reassignment.

The Union relies also on the portion of the Agency's Regulation which provides, in pertinent part, that:

Selected employees will be released and personnel actions normally effected at the beginning of the first pay period which is not more than 14 days after the Personnel Office has notified the employee and his/her supervisor of the selection.

Id. at 19. The Union contends that, consistent with this provision, the Agency was required to release the grievant for the reassignment because the grievant had been "selected and . . . notified of this selection." Exception at 1.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that the Arbitrator's award conflicts with Agency Regulation 1405.2. We note, in this regard, that although the Agency's vacancy announcement identified four positions to be filled, the Agency's final decision was to fill only two positions. The Arbitrator found, and the Union does not dispute, that the final decision was based on the Agency's assessment of the potential adverse effect on the Agency's work which would result if all advertised positions were filled. In these circumstances, we are unable to conclude that the Agency was required to reassign the grievant, even though the grievant initially had been selected for one of the vacancies.

The Arbitrator found, based on the wording of the Agency's form, testimony at the arbitration hearing, and provisions in the parties' collective bargaining agreement, that the Agency was not required to reassign the grievant to one of the positions for which he applied. In so finding, the Arbitrator rejected the same arguments the Union makes in its exception. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings and an attempt to relitigate the matter. Accordingly, the exception provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 34 FLRA 640, 643-44 (1990) (exception contending that award conflicted with agency regulation constituted an attempt to relitigate merits of award and provided no basis for finding award deficient).

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

1. We reject the Agency's assertion that because the Authority's practice of acknowledging the receipt of exceptions to arbitration awards inadvertently was not followed in this case, its opposition should be considered. The Agency was served with a copy of the Union's exception and has demonstrated no extraordinary circumstances, within the meaning of section 2429.23(b) of our Regulations, for waiving the expired time limit for filing its opposition.

2. The record before us is silent as to the subject matter or wording of Article 5.