45:0782(67)AR - - DOD, NG Bureau, WA Army NG, Tacoma, WA and NAGE Sub-Local R12-122 - - 1992 FLRAdec AR - - v45 p782
[ v45 p782 ]
The decision of the Authority follows:
45 FLRA No. 67
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James E. Reed filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the negotiated merit promotion plan when it advertised a vacant position as open to Active Guard Reservists (AGRs) only. He ordered the Agency to rerun the promotion action and consider civilian bargaining unit employees as well as AGRs for the position. He also ordered the Agency to pay backpay, as appropriate, to any civilian employee chosen for the position when the promotion action is rerun. For the following reasons, we find that the Arbitrator's award is contrary to management's right to determine its organization under section 7106(a)(1) of the Statute. Accordingly, we will set the award aside.
II. Background and Arbitrator's Award
The Union filed a grievance protesting the Agency's decision to announce a vacant supervisory position as an active duty military position. Although the position had previously been held by a civilian employee of the Agency, only AGRs could apply and be selected for the position under the new announcement. The Union's grievance was not resolved and was submitted to arbitration on the following issue:
1. Is the grievance arbitrable?
2. Did the [Agency] violate Section 1, Article XVI, of the Collective Bargaining Agreement when it announced AGR vacancy #91-046? If so, what is the appropriate remedy?
Award at 1. 1/
The Arbitrator ruled that the grievance was arbitrable and addressed the merits. The Union contended before the Arbitrator that the Agency had agreed in Article XVI of the agreement to use the merit promotion plan in making selections for technician positions. The Union noted that the Agency had admitted that the position in dispute was a technician position and therefore, the Union maintained, the Agency was obligated to follow the merit promotion plan.
The Agency maintained before the Arbitrator that Article XVI, Section 1 of the parties' collective bargaining agreement applies only to employees in the bargaining unit--the civilian technicians--and not to the AGRs. The Agency asserted that the AGRs are not covered by the merit promotion plan and that there is no requirement in the agreement to announce all vacant positions as open to civilian technicians. The Agency asserted that it has the right to determine whether to announce a vacancy as open to AGRs only.
The Arbitrator found that Article XVI of the collective bargaining agreement "dictates that the promotion in question in this grievance use the merit promotion plan." Id. at 9. The Arbitrator stated further that "it is clear that the job announcement may not be limited to applicants under the merit plan, and that the announcement must also be available to other applicants from another source which, in this case, is an AGR." Id. He noted that the remedy imposed should be consistent with the remedy imposed by the Authority in Local R-1-185, National Association of Government Employees and the Adjutant General of the State of Connecticut, 25 FLRA 509 (1987) (Adjutant General), in which an award was modified to require that a defective promotion action be rerun in accordance with law, regulation, and the parties' collective bargaining agreement. The Arbitrator made the following award:
The grievance is sustained.
The [A]gency is directed to rerun the selection process for the position of Supervisory Supply Technician as a technician position and an AGR position and select the most qualified applicant as described and ordered in [Adjutant General] above.
Further, the Agency is directed to, as the Union has requested, pay back pay if a technician is selected. Perhaps back pay would not normally be awarded, but it is clear that this issue has been decided many times and should not be before an arbitrator or the FLRA again. It is because of this attempt by the Agency to recreate an issue when one no longer exists, that I find the Agency's action was unjustified and unwarranted under section 5596 of Title 5, United States Code.
Award at 10.
III. Positions of the Parties
A. The Agency
The Agency asserts that the Arbitrator's award abrogates management's right to determine its organization under section 7106(a)(1) of the Statute. The Agency contends that it had decided to fill the position in question "strictly as an AGR Chief Supply Sergeant [position], and not as a civilian Supervisory Supply Technician [position], so that funds previously used for this position could be used elsewhere within the National Guard organization." Exceptions at 2. The Agency maintains that the position was always regarded as a military rather than civilian position and that, although the previous incumbent of the position was a civilian, the filling of the position by a civilian was a one-time occurrence.
The Agency contends that the Arbitrator misapplied Adjutant General because that case involved a different situation from the one in this case. The Agency argues that in Adjutant General, management had decided to advertise the vacant position as open to either civilian technicians or AGRs, whereas, in this case, the Agency had determined before advertising the position that the position was a military position that could be filled only by AGRs. The Agency maintains that once it decided that the position was a military position, Article XVI ceased to apply because AGRs are not in the bargaining unit and the position was not open to the civilian technicians that constitute the bargaining unit.
The Agency also excepts to the Arbitrator's award of backpay. The Agency asserts that the Arbitrator failed to make the required findings under the Back Pay Act, 5 U.S.C. ° 5596, to support an award of backpay to any employee.
B. The Union
The Union denies that the award is contrary to section 7106(a)(1) of the Statute and contends that the vacant position has been traditionally filled by civilian technicians. The Union maintains that the Arbitrator acted in accordance with Authority precedent by requiring the Agency to make the position open to both civilian technicians and ACRs. The Union argues that the Arbitrator properly applied Article XVI of the parties' collective bargaining agreement when he ruled that the vacant position must be filled using the procedures contained in the merit promotion plan. In support of this contention, the Union cites Association of Civilian Technicians and Pennsylvania National Guard, 29 FLRA 1318 (1987) (Pennsylvania National Guard). According to the Union, Pennsylvania National Guard is similar to this case because in that case the arbitrator directed the agency to rerun a selection action in circumstances in which the agency filled a vacancy with an AGR employee without complying with the announcement procedures contained in the parties' collective bargaining agreement. The Union contends that in this case, as in Pennsylvania National Guard, the Arbitrator's award does not conflict with management's rights but "simply directs the Agency to post the vacancy announcement so that civilian technicians may apply for the position." Opposition at 5.
The Union also contends that, consistent with Adjutant General, the Arbitrator properly required the Agency to rerun the promotion action to consider both civilians and AGRs. The Union denies that the award prevents the Agency "from exercising its statutory right to fill the position from any appropriate source." Opposition at 5.
The Union also denies that the award is contrary to the Back Pay Act and asserts that the Arbitrator made the necessary findings for an award of backpay. The Union states that the Arbitrator "determined that the Agency violated the parties' negotiated agreement as a result of its failure to fill the position under the Merit Promotion Plan and that 'but for' the Agency's improper action qualified civilian technicians would have been considered for the position." Id. at 6.
IV. Analysis and Conclusions
We conclude that the Arbitrator's award in this case is contrary to the Statute. The Arbitrator ordered the Agency to advertise a vacant position as both a military position and a civilian position, although the Agency had determined that the position was a military position. Further, the Arbitrator ordered the Agency to select the most qualified applicant for the position, regardless of whether that person was a civilian technician or an AGR. We find that the Arbitrator's award directly interferes with management's right to determine its organization under section 7106(a)(1) of the Statute. Accordingly, we will set the award aside.
An agency's right to determine its organization under section 7106(a)(1) of the Statute includes the right to determine "how an agency's grade level organizational structure will be designed[.]" National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409-10 (1990) (Treasury, IRS). In Treasury, IRS, the Authority stated that management's right to "determine its organization refers to the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties." Id. at 409. The Authority further stated that "[t]his right encompasses the determination of how an agency will structure itself to accomplish its mission and functions." Id. The Authority stated that the right of an agency to determine its organization "includes such matters as . . . how various responsibilities will be distributed among the agency's organizational subdivisions, how an agency's organizational grade level structure will be designed, and how the agency will be divided into organizational entities[.]" Id. at 409-10 (footnotes omitted).
In this case, the Agency determined that the vacant supervisory position would be designated and filled as a military position, not a civilian position. The Agency's decision to make the position a military position concerns the organization and functional structure of the Agency and the assignment of duties to personnel. Therefore, the Agency's decision constitutes the exercise of the Agency's right to determine its organization under section 7106(a)(1) of the Statute. See id.; see also Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292, 1296-97 (1987) (proposals which require an agency to establish its organizational structure in such a manner as to assure promotional opportunities for employees directly interfere with management's right to determine its organization under section 7106(a)(1) of the Statute). The Arbitrator's award directly interferes with the Agency's exercise of that right.
We note that the Arbitrator's reliance on Adjutant General, 25 FLRA 509, is misplaced. In that case, the agency had determined that a vacant position would be advertised as both a civilian and a military position. That situation is different from the situation in the present case in which the Agency had decided to make the position a military position open to AGRs only. For the reasons stated above, the Agency had the right to make that decision pursuant to its right to determine its organization under section 7106(a)(1) of the Statute and the Arbitrator erred by requiring the Agency to rerun the selection action and select the most qualified applicant, even if that applicant were a civilian.
We also reject the Union's reliance on Pennsylvania National Guard. In Pennsylvania National Guard, an agency failed to post the position of aircraft pneudraulic system mechanic and filled it with an AGR employee. An arbitrator found that the agency violated the collective bargaining agreement and agency regulations by failing to post the position in question. The arbitrator ordered the agency to post the position in accordance with the procedure set forth in the agreement and agency regulation. The Authority denied the agency's exceptions to the award and found that the parties' collective bargaining agreement and merit promotion plan "encompasse[d] the position in dispute" and that enforcement of the merit promotion plan "preserve[d] management's discretion to establish its organizational structure." 29 FLRA at 1320. In this case, however, the Agency did not fail to post the position in question, but rather, posted the position as a military position only, in accordance with its decision to do so. Nothing in Pennsylvania National Guard is inconsistent with our conclusion that the award directly interferes with management's right to determine its organization.
It is not apparent that the provision of the parties' collective bargaining agreement enforced by the Arbitrator in his award constitutes an arrangement for employees adversely affected by the exercise of management's right to determine its organization. Article XVI, Section 1 of the agreement provides only that the merit promotion plan will apply "to the extent that the provisions of the Agreement relating to merit promotion are applicable only to employees in the bargaining unit." Exceptions, Attachment 3. That provision does not address the establishment of positions as military positions or the selection of nonbargaining unit AGRs to fill military positions or any foreseeable adverse effects on employees that might result from the exe