[ v41 p879 ]
The decision of the Authority follows:
41 FLRA No. 75
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator Samuel J. Nicholas, Jr. A grievance was filed alleging that the Agency violated the Federal Personnel Manual (FPM) on-call employment procedures. The Arbitrator concluded that the Agency did not violate the FPM procedures and denied the grievance.
The Union filed an exception 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 exception.
For the following reasons, we conclude that the Union's exception provide no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant was hired by the Agency in 1986 as an English Instructor under the on-call employment program set forth in chapter 340, subchapter 3 of the FPM.(*) Before the Arbitrator the Agency noted that on-call employees were advised "that they will be converted, released or recalled to pay status based upon their performance appraisals." Award at 7. When the grievant had not been converted to year-round employment by 1990, the grievant filed a grievance claiming that the Agency failed to follow FPM on-call employment procedures for conversion to year-round employment. The grievance was submitted to arbitration. The Arbitrator framed the issues as follows:
(1) Is the grievance properly before the Arbitrator, i.e., procedurally sound?
(2) Did [the Agency] violate the FPM in failing to convert [g]rievant from on-call to year-round employment status?
Id. at 8.
As relevant here, the Arbitrator noted that the issues before him involved "a general disagreement over what Management may do under the subject FPM regulations as distinguished from what steps it must take under the regulations." Id. at 9 (emphasis in original). The Arbitrator found that the Agency "satisfied those procedures which are mandated by the regulations." Id. The Arbitrator stated, in this regard, that he had no power to direct the Agency "to comply with regulations which are written in optional, permissive language as opposed to mandatory words and phrases." Id. (emphasis in original).
With respect to the Agency's use of performance appraisals as the governing criterion in ranking and converting on-call employees, the Arbitrator stated that he found "no restriction or prohibition in the application [of the] FPM regulations which preclude the use of performance appraisals as the determining factor in the decision to place certain employees on year-round employment status[.]" Id. The Arbitrator noted further the performance appraisal criterion "has been applied in a consistent and equitable manner; and the FPM regulations require nothing more." Id. Consequently, the Arbitrator concluded that the Agency's failure to convert the grievant from on-call to year-round employment did not violate the FPM or the parties' collective bargaining agreement, and he denied the grievance.
III. Union's Exception
The Union contends that the Arbitrator's award is deficient because it is contrary to FPM chapter 340, subchapter 3. First, according to the Union, FPM chapter 340, subchapter 3, requires that on-call employees be hired pursuant to an employment agreement which specifies the terms under which on-call employees will be converted to year-round employment. The Union asserts that the Agency's on-call employment agreement "makes no reference as to how employees will be converted to year[-]round employment." Exception at 2. The Union argues further that "[t]he [A]rbitrator erred in his finding that the [FPM] is written in an optional, permissive language as opposed to mandatory." Id.
The Union also disputes the Agency's use of performance appraisals to convert on-call employees to year-round employment. The Union argues that FPM chapter 340, subchapter 3, does not provide that performance appraisals may be used for such conversions. The Union concludes that as the Agency's on-call employment agreement does not specify the terms under which on-call employees will be converted to year-round employment, the Agency violated FPM chapter 340, subchapter 3, and the award must be vacated.
IV. Analysis and Conclusions
In the absence of a stipulation by the parties, an arbitrator's formulation of the issue to be resolved in arbitration is accorded substantial deference. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Decatur ATCT and National Air Traffic Controllers Association, 39 FLRA 1051, 1053 (1991). In this case, the issue as formulated by the Arbitrator was whether the Agency "violate[d] the FPM in failing to convert [g]rievant from on-call to year-round employment status." Award at 8. In resolving the issue before him, the Arbitrator found nothing in the FPM which precluded the use of performance appraisals as the criterion for determining which on-call employees would be converted to year-round employment. Although the Union argued to the Arbitrator that the Agency's on-call agreement did not comply with FPM requirements, we find no basis on which to conclude that the Arbitrator was required to address that argument in order to determine whether the Agency's failure to convert the grievant to year-round status violated the FPM.
Although the Union claims that the use of performance appraisals is appropriate only for releasing on-call employees to a non-pay status and recalling them to duty, the Union cites no provision in the FPM, and none is apparent to us, precluding the use of performance appraisals in determining which on-call employees may be converted to year-round employment. Accordingly, the Union has not demonstrated that the award conflicts with the FPM.
We note, in this regard, that the Union does not assert that the Agency was precluded from using performance as a conversion criterion because that criterion was not contained in the on-call agreement. Moreover, no such requirement is apparent from the FPM. Accordingly, as the award resolves the precise issue before the Arbitrator, and as the award is not inconsistent with the FPM, we need not determine whether the Agency's on-call employment agreement complies with all applicable FPM requirements.
For the foregoing reasons, we will deny the Union's exception.
The Union's exception is denied.
a. An on-call employee serves under a permanent appointment (tenure group 1 or 11) and works on an as needed basis during periods of heavy workload, with an expected cumulative service period of at least six months in pay status each year . . . As vacancies occur, an on-call employee moves into the agency's year-round work force in accordance with pre-established conditions of employment.
3-5. Terms and Conditions of Employment
b. A special employment agreement must be executed between the agency and the on-call employee at the time of appointment. The agreement must be attached to the employee's copy of the SF 50, Notification of Personnel Action, and a reference to the agreement should be included in the SF 50 remarks.
c. At a minimum the agreement must indicate:
--- That the employee is subject to periodic release and recall to duty under specified advance notice procedures;
--- the benefits to which the employee will be entitled while in non-pay status;
--- that it is expected that the employee will be provided with a minimum of 6 months of employment each year, but that the employee may work a full 12 months each year as workload requires;
--- the terms under which the employee will be converted to year-round employment in his/her occupation and grade. (Some agency agreements have included a statement that an effort would be made to convert on-call employees to regular year-round employment within a specific period, e.g., 2 years, following the initial on-call appointment. Although not required, this type of commitment may be a significant incentive for candidates to accept on-call employment.)
3-6. Release and Recall Procedures
a. An on-call employee is released to nonpay status at the end of peak workload periods and recalled to duty as needed for the next peak period. Release and recall must be accomplished according to a specific plan and in an established order. Procedures must be both equitable and uniformly applied. Release and recall may be based on performance, seniority, veteran preference, other appropriate indices, or a combination of factors. Regardless of the factors used, an employee should be notified at least 3 days prior to release or recall.
(If blank, the decision does not have footnotes.)
*/ FPM chapter 340, subchapter 3 is set forth in the attached Appendix.