[ v40 p236 ]
The decision of the Authority follows:
40 FLRA No. 25
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 Marvin A. Griffin. A grievance was filed challenging the Agency's decision that the grievant was not qualified for a GS-1102-5 contracting specialist position. The Arbitrator concluded that the grievant was not qualified for the position and 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 Agency did not file an opposition to the Union's exceptions.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a purchasing agent, applied for a GS-1102-5 contracting specialist position. The grievant was notified by the Agency that her experience did not qualify her for the position. The grievant requested that her application be re-evaluated, asserting in part that her "experience and education" qualified her for the position. Exhibit 4 to Union's Exceptions. The Agency, however, did not change her rating. The Agency asserted, in this regard, that "[a]s stated in the Merit Promotion announcement, experience as a Purchasing Agent, . . . is not qualifying unless it was supplemented by at least 24 semester hours of formal instruction in . . . business disciplines[.]" Exhibit 5 to Union's Exceptions.
The grievant filed a grievance over the Agency's failure to rate her as qualified for the disputed position and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Did the Agency violate the Collective Bargaining Agreement (CBA) when it determined that the Grievant's application failed to meet the selection criteria for the position of GS-1102-5, . . . . If answered in the affirmative, what shall the remedy be?
Id. at 1.
The Arbitrator found that it was necessary for him to interpret the Agency's job announcement and an Office of Personnel Management (OPM) Technical Note which set forth requirements for the contract specialist position. With regard to the job announcement, the Arbitrator noted that applicants for the position could qualify "through experience or by education." Id. at 9. The "experience option," according to the Arbitrator, required that in addition to 3 years of specialized experience, applicants have obtained "necessary business knowledge" in one of three ways specified in the announcement. Id. at 10. Applicants who sought to qualify through undergraduate or graduate educations, on the other hand, were required to demonstrate that they had completed a degree in various business subjects or supplemented a degree with at least 24 hours of study from among specified business disciplines. The Arbitrator noted also that the job announcement stated that although "[c]ombinations of successfully completed education and experience" could be used to satisfy the qualifications requirements, "[e]xperience as a purchasing agent, . . . is not qualifying unless it was supplemented by formal instruction in business disciplines . . . ." Id.
The job announcement, according to the Arbitrator, gave "a reasonably accurate summary" of the Technical Note. Id. at 11. The Arbitrator found that, under the Technical Note, the Agency could not "'require applicants to possess a college degree or a specific number of credits from a college or university[.]'" Id. (quoting Technical Note). The Arbitrator also concluded, however, that under the Technical Note, the Agency was "'responsible for determining the amount, scope, and mix of training . . .'" in "business-related disciplines" which was necessary for inservice placement. Id. at 12 (quoting Technical Note). The Arbitrator found that the Agency's requirement that the grievant, whose work experience was limited to clerical and technical support positions, have completed 24 semester credit hours in business courses was "reasonable and necessary" and consistent with OPM's Technical Note. Id. at 13. The Arbitrator also concluded, in this regard, that the Agency had not discriminated against purchasing agents. Rather, he found that the Agency properly determined that such agents needed to supplement their experience with education.
In conclusion, the Arbitrator rejected the Union's contentions that the Agency violated the parties' agreement, the OPM Technical Note, the job announcement, or 5 U.S.C. §§ 2301 and 2302 in rating the grievant as unqualified for the disputed position. Accordingly, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator erred in upholding the Agency's decision that the grievant needed 24 semester hours of academic instruction to be qualified for the contract specialist position. According to the Union, the Agency's job announcement is in direct conflict with the Technical Note and, if the job announcement had been drafted properly, the grievant would have been found qualified for the position. The Union argues, in this regard, that the grievant "sought promotion based on experience alon[e]. She did not and has never sought promotion based on educational requirements[.]" Exceptions at 10 (emphasis in original). The Union argues that the Arbitrator erred also in concluding that the grievant "attempted to use her . . . academic work to qualify for the 24 semester credit hours." Id. at 3.
The Union also argues that the Arbitrator erred in failing to find that the Agency improperly discriminated against purchasing agents. The Union asserts that, based on a supervisor's advice, the grievant transferred from a "promotable position" to a purchasing agent job, at a lower rate of pay and with no opportunity for promotion, in order to better her chances for promotion to a contract specialist position. Id. at 18. According to the Union, the Agency's change in the qualifications requirements occurred only after the grievant accepted the new position.
Finally, the Union argues that the Arbitrator erred by failing to find that the Agency committed a prohibited personnel practice. The Union asserts first that the Agency violated 5 U.S.C. § 2302(b)(4), (6), (8), and (11) (1) by "requiring 24 semester hours for experience only qualification . . . and in denying the right of purchasing agents to complete [sic] for promotion to contract specialist . . . ." Id. at 22. Second, the Union argues that the Agency committed a prohibited personnel practice by developing qualifications standards for the disputed position which are inconsistent with OPM requirements.(2)
IV. Analysis and Conclusions
We construe the Union's arguments that the disputed job announcement conflicts with the OPM Technical Note and that the Arbitrator should have found that the Agency violated 5 U.S.C. §§ 2301 and 2302(b) by issuing that announcement and by unfairly denying purchasing agents a right to compete for that position as contentions that the award is contrary to law and regulation under section 7122(a)(1) of the Statute.
We will assume, for the purposes of this decision, that the OPM Technical Note constitutes a regulation within the meaning of section 7122(a)(1) of the Statute. Having so assumed, however, the Union has not demonstrated that, by rejecting the Union's argument that the job announcement conflicted with the Note, the award is deficient.
The Technical Note states that applicants for positions such as the one in dispute in this case may qualify on the basis of experience or education. To qualify on the basis of "general experience, an applicant must demonstrate that he or she has acquired . . . necessary knowledge of business-related disciplines through work, education, or training or any combination thereof." Exhibit 8 to Exceptions at 1. It is clear, therefore, that an applicant may qualify for a contracting specialist position based on experience alone. Consistent with the Technical Note, the job announcement provided that an applicant could qualify for the position based on 3 years of particularized experience coupled with a "demonstration of business knowledge." Exhibit 1 to Exceptions.
It is clear, therefore, that the Agency did not require applicants to possess a college degree or a specific number of credit hours from a college or university to qualify for the contracting specialist position. Instead, applicants possessing certain experience could qualify for the position without demonstrating any particular academic credentials.
The Technical Note also provides, however, that an "applicant whose experience is limited to procurement support or purchasing work can meet the general experience requirements if he or she has training which provided the business knowledge necessary for successful performance of . . . [the] work." Exhibit 8 to Exceptions at 2. The Note further provides that to be "creditable . . . , the knowledge gained in the training must be equivalent to that which would have been obtained through 24 semester hours of college level course work . . . ." Id. With particular regard to employees such as the grievant, the Note confirms that "[e]xperience as a purchasing agent, procurement assistant, or in other clerical and technical support positions is not qualifying unless it was supplemented by formal instruction . . . ." Id. at 3.
We note that, as pointed out by the Union, prior to issuance of the Technical Note, OPM revised the classification standards for the GS-1102 contracting series and, in a cover memo accompanying the revised standards, OPM addressed the kind and amount of formal instruction necessary to supplement experience as a "purchasing agent, procurement assistant, etc., in order to meet the minimum general experience requirements . . . ." Exhibit 9 to Exceptions. In particular, OPM stated that "the formal instruction need not be obtained in college courses." Id. OPM also stated, however, that such experience would qualify for positions in the contracting series only if the applicant could demonstrate formal instruction including "substantial coverage of business disciplines . . . ." Id. OPM noted that the "specific disciplines and the number of hours required may be determined by local subject matter experts." Id.
In its letter denying the grievant's request that her qualifications be reevaluated, the Agency noted that "experience as a Purchasing Agent, Procurement Assistant, or in other clerical and technical support positions is not qualifying unless it was supplemented by at least 24 semester hours of formal instruction . . . ." Exhibit 5 to Exceptions. The Agency confirmed that the grievant's experience was "creditable[.]" Id. However, the Agency rated the grievant as unqualified because she had not completed the 24 semester hours of business courses from a college or university necessary to supplement her experience.
As found by the Arbitrator, the grievant's experience was "limited to clerical and technical support positions." Award at 13. Accordingly, the Arbitrator found the Agency's further requirement that the grievant demonstrate 24 hours of formal instruction in business disciplines to be "reasonable and necessary . . . ." Id. Nothing in the Technical Note or the previous memorandum accompanying the revised classification standards prohibits the Agency from determining that 24 semester hours of formal instruction is necessary to supplement experience such as the grievant's. Indeed, OPM specifically provided that the "number of hours" of formal instruction necessary to supplement such experience could be determined locally. Exhibit 9 to Exceptions.
We conclude, based on the foregoing, that the Union has not established that the award conflicts with law or regulation by upholding the Agency's determination that the grievant could not qualify for the contract specialist position unless she demonstrated that she had received 24 semester hours of formal instruction in business disciplines. In so concluding, we reject also the Union's related assertions that, by issuing and enforcing an improper job announcement and by improperly discriminating against purchasing agents on the basis of that announcement, the Agency violated 5 U.S.C. §§ 2301 and 2302. See generally U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 463 (1991) (a finding of a prohibited personnel practice under 5 U.S.C. § 2302(b) requires showings that (1) the disputed personnel action violated law, rule, or regulation; and (2) the law, rule, or regulation implements or directly concerns merit systems principles).
As the Union has cited no provision of law prohibiting the Agency's actions in this case, the Union has not demonstrated that the Arbitrator's award is contrary to any laws or regulations. Accordingly, the Union's arguments provide no basis for finding the award deficient.
Finally, the grievant's claim that she never attempted to qualify for the position based on academic course work is misplaced. Had the grievant possessed, or demonstrated to the Arbitrator that she possessed, the particularized experience set forth in the job announcement, no demonstration of formal instruction would have been necessary to supplement that experience.
As noted previously, however, the Arbitrator confirmed the Agency's finding that the grievant's experience was "limited to clerical and technical support positions." Award at 13. Accordingly, consistent with the job announcement and the Technical Note, the grievant could not qualify based on her experience without the required course work. As such, the Union's exception that the Arbitrator erred by examining the grievant's course work to determine whether that work satisfied the requirement for 24 hours of instruction provides no basis for finding the award deficient.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 2302(b) provides, as relevant here, that an employee who has authority to take, recommend, or approve personnel actions shall not:
(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;
. . . .
(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;
. . . .
(8) take or fail to take a personnel action with respect to any employee or applicant . . .
. . . .
(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.
2. The Union also argues that the Agency violated Federal Personnel Manual (FPM) chapter 271 by not following OPM's classification standards for the contract specialist position. However, as that FPM chapter was eliminated pursuant to FPM Letter 271-6 (Oct. 14, 1980), we will not consider the Union's argument further.