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39:0877(75)AR - - Army, Combined Arms Center, Fort Leavenworth, KS and AFGE, Local 738 - - 1991 FLRAdec AR - - v39 p877

[ v39 p877 ]
The decision of the Authority follows:

39 FLRA No. 75













February 27, 1991

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 Jerry Powell filed by the Union 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 Agency filed an opposition to the exceptions.

A grievance was filed alleging that the Agency failed to accord the grievant proper consideration for a vacant position. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In June 1988, the Agency issued a vacancy announcement for the position of Military Studies Program Administrator, GM-14. The top three candidates for the position, including the grievant, were referred to the selecting official. The grievant was not selected. Instead, a full-time military person was selected for the position. The selectee was notified of his selection on August 3, 1988, and was informed that the selection was contingent on the Agency's receipt of a waiver of regulations prohibiting the employment of retired military personnel during the 180 days immediately following their retirement.(1)

On August 16, 1988, the Agency forwarded a request for a waiver of the 180-day requirement to the Training and Doctrine Command (TRADOC). That request was disapproved on August 29, 1988. The Agency subsequently requested a review of the disapproval by the Personnel Command (PERSCOM). On February 3, 1989, PERSCOM approved the waiver request. On February 15, 1989, the selectee was notified that the waiver request had been granted and, shortly thereafter, the selectee retired from the military.

A grievance was filed and submitted to arbitration on the following issue:

Did the Employer (Agency), violate the provisions of the Labor Agreement between the parties by pre-selecting [the selectee] to fill the position of Military Studies Program Administrator thus denying Grievant proper consideration for the position in a manner as required by regulation, policy and/or practice?

Award at 1.

Prior to issuing the award that is now before us on exceptions, the Arbitrator issued an interim award. In the interim award, the Arbitrator rejected various Union arguments, including the Union's claim that the disputed position had been "held open" for the selectee, in violation of law and an applicable Department of Defense (DoD) regulation. Attachment to Opposition (Interim Award) at 20.(2) The Arbitrator stated, in this regard, that as a waiver of the 180-day requirement could not be requested until a member of the military was selected for the position, and as the selectee could not fill the position until the waiver was granted, the Agency did not improperly hold open the position during the time period which the waiver request was pending.

The Arbitrator was unable to determine, however, whether the grant of the waiver request by PERSCOM was consistent with applicable Agency regulations and policies. In particular, the Arbitrator stated that "the waiver approval process utilized by representatives of PERSCOM may not have followed regulation requirements or standard policies and practice[s]." Interim Award at 25. Accordingly, the Arbitrator sustained the grievance and directed the following, in pertinent part:

A compliance review is hereby ordered of the process utilized by PERSCOM in granting approval of the 180 day waiver for the employment of [the selectee] in the position of Military Studies Program Administrator. The review shall be conducted by the appropriate body created or authorized by the U.S. Department of Defense to insure compliance with regulations and directives. . . . The review shall entail, 1) an examination to determine whether all standard policies and practices normally followed in granting waivers were utilized . . . ; 2) an examination to determine whether the "standard" policies and practices utilized by PERSCOM in granting waivers, comply with the intent of the Directive; and, 3) an examination of the application forms and comparative analysis of the three candidates to determine whether the waiver should have been granted.

Interim Award at 25. The Arbitrator retained jurisdiction pending review of the compliance review and stated that a "final award" would be issued after receipt of that review. Id.

Subsequently, the Arbitrator, representatives of both parties, and an official from PERSCOM participated in a telephone conference during which PERSCOM's approval of the waiver request was discussed. After the conclusion of the teleconference, the parties agreed that it was appropriate for the Arbitrator to issue his final award.

In the award, the Arbitrator noted that DoD Directive 1402.1 provides that "the candidate for whom a waiver is sought must possess greater qualifications than all in-service candidates and must possess qualifications equal to those of all external candidates applying for the position." Award at 5. The Arbitrator noted, in this regard, that there was no assertion that the grievant was better qualified than the selectee. Instead, according to the Arbitrator, the Union asserted only that the grievant was qualified for the disputed position. Accordingly, and based on the information relating to the procedures utilized to process the waiver request provided by the PERSCOM representative during the teleconference, the Arbitrator concluded that "the policies and practices utilized by PERSCOM comply with the . . . DoD Directive and that the matter in question was treated in the usual or normal manner." Id. at 6. The Arbitrator concluded, therefore, that PERSCOM's granting of the waiver request was proper and he denied the grievance.

III. Positions of the Parties

1. The Union

The Union argues that the award is deficient because it is inconsistent with law and because the Arbitrator failed to address the issues before him.

First, the Union claims that the award is inconsistent with 5 U.S.C. º 3326 which, the Union points out, prohibits the granting of a waiver of the 180-day rule if the position was held open pending "the retirement of the retired member." Exceptions at 2. The Union notes, in this regard, that 37 U.S.C. º 101(23) defines the term "member" as "a person appointed or enlisted in, or conscripted into, a uniformed service." According to the Union, a person cannot "be both on active duty and retired simultaneously." Exceptions at 3 (emphasis deleted).

Second, the Union argues that the Arbitrator overlooked the issue of the "violation of law in regards to 'dual compensation.'" Id. at 3.(3) The Union states that the "proper issue" before the Arbitrator was as follows:

Did the [A]gency have the [a]uthority to hire an active mil[i]tary person to fill a civilian position, hold the position open pending retirement conditioned upon receipt [o]f [a] waiver of [the] 180 day hiring restriction and pay that person dual compensation for any period of time?

Id. at 1-2 (emphasis deleted). The Union asserts that although it raised the issue of dual compensation to the Arbitrator, the Arbitrator did not address the issue.

2. The Agency

The Agency argues that the Union's contention that the award is inconsistent with law constitutes an attempt to relitigate the merits of the grievance before the Authority. The Agency notes that the Arbitrator addressed, and rejected, the Union's contention that the disputed position improperly was held open for the selectee.

The Agency claims that the issue of dual compensation was never raised to the Arbitrator. The Agency also claims that the selectee did not receive dual compensation.

IV. Analysis and Conclusions

It is clear that 5 U.S.C. º 3326 prohibits the appointment of a retired member of the armed forces to a position in the civil service within the Department of Defense during the 180-day period immediately following the retired member's retirement unless a waiver has been granted. It is clear also that U.S.C. º 3326, as well as DoD Directive 1402-1, preclude an agency from "holding open" a position pending the retirement of a member of the armed forces.

Here, the selectee was an active duty military person at the time he applied and was selected for the disputed position. A waiver of the 180-day rule was requested and granted by the organizational component of the Department of Defense responsible for taking such action. Shortly after the grant of the waiver, the selectee retired from the military and assumed the duties of the disputed position.

The Arbitrator concluded, and we agree, that this action did not violate 5 U.S.C. º 3326 or the DoD Directive. In particular, the Union has not demonstrated, and there is no other basis on which to conclude, that the disputed position improperly was held open pending the retirement of the selectee. Instead, as found by the Arbitrator, the position was held open pending action on the waiver request. The Union cites no provision of law or regulation prohibiting such action, and none is apparent to us. We conclude, therefore, that the award is not inconsistent with 5 U.S.C. º 3326.

Second, we reject the Union's assertion that the award is deficient because the Arbitrator did not resolve an issue regarding dual compensation. We note first that, as there is no indication in the record that the selectee received pay for work performed while on detail, the statutory provision relied on by the Union does not appear to apply in this case. Moreover, there is no assertion, or other indication in the record, that the parties stipulated the issue to be resolved by the Arbitrator. The issue, as framed by the Arbitrator, does not encompass resolution of a dispute over dual compensation. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. For example, International Organization of Masters, Mates and Pilots, Marine Division, ILA, Canal Pilots Branch and Panama Canal Commission, 39 FLRA No. 59, slip op. at 6-7 (1991).

The award is directly responsive to the issue as the Arbitrator framed it. As such, the Union has not demonstrated that the award is deficient because the Arbitrator failed properly to resolve the issues involved in the grievance.

The Union has not demonstrated that the award is deficient on any of the grounds stated in section 7122(a) of the Statute. We will, therefore, deny the Union's exceptions.

V. Decision

The Union's exceptions are denied.

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

1. 5 U.S.C. º 3326 provides, as relevant here, that:

(b) A retired member of the armed forces may be appointed to a position in the civil service in or under the Department of Defense . . . during the period of 180 days immediately after his retirement only if--

(1) the proposed appointment is authorized by the Secretary concerned or his designee for the purpose . . . .

. . . .

(c) A request by appropriate authority for the authorization, or the authorization and approval, as the case may be, required by subsection (b)(1) of this section shall be accompanied by a statement which shows the actions taken to assure that--

. . . .

(3) qualification requirements for the position have not been written in a manner designed to give advantage to the retired member; and

(4) the position has not been held open pending the retirement of the retired member.

2. The Arbitrator referenced DoD Directive 1402-1(D)(c)(4) which, according to the Arbitrator, provides that "Positions may not be held open pending the retirement of a member of the Armed Forces in order to provide that person with a preferential opportunity to apply for or be appointed to the position." Interim Award at 9.

3. The Union relies on 5 U.S.C. º 5535, entitled "Extra pay for details prohibited[,]" which provides, in pertinent part, that an "officer may not receive pay in addition to the pay for his regular office for performing the duties of a vacant office as authorized by sections 3345-3347 of this title." 5 U.S.C. ºº 3345-3347 address, respectively, details to offices of heads of executive or military departments, details to subordinate offices, and Presidential authority to direct officials to perform duties.