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50:0044(10)AR - - AFGE, Local 2142 and Corpus Christi Army Depot, Corpus Christi, TX - - 1994 FLRAdec AR - - v50 p44

[ v50 p44 ]
The decision of the Authority follows:

50 FLRA No. 10





LOCAL 2142










December 14, 1994


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John F. Caraway 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 Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency failed to provide training and other benefits to employees hired under the Veterans Readjustment Appointment (VRA) program.(1)

For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Agency failed to comply with the requirements of the VRA program because, among other things, "[v]eterans had not progressed to the Journeyman level[,]" veterans had not been informed of training opportunities, and no training plans had been developed. Award at 3. When the parties could not resolve the dispute, the matter was submitted to arbitration.

Before the Arbitrator, the Union argued, as relevant here, that the Agency failed to fulfill its training obligations under the VRA program and, consequently, improperly denied veterans the non-competitive promotions they would have received had they been properly trained. The Union claimed that the actions of the Agency were contrary to 38 U.S.C. § 2014(a)(1), which prescribes a policy of "promot[ing] the maximum of employment and job advancement opportunities within the Federal Government for qualified disabled veterans and veterans of the Vietnam era."(2) The Union argued that Chapter 7, paragraph 1-5a(1) of the "'VRA' regulation" required the Agency to provide formal training for the veterans it employs.(3) Id. at 9. The Union also claimed that the Agency violated the parties' agreement by failing to provide formal training to veterans.

The Agency disputed the Union's claim that veterans were entitled to non-competitive promotions. The Agency also argued that it had provided appropriate training opportunities and training plans for veterans and that it had not violated the parties' agreement.

The Arbitrator found that there was no authority to support the Union's claim that VRA appointees "were entitled to non-competitive promotion up to the GS-11 grade level or its WG equivalent." Id. at 25. The Arbitrator found that the stated statutory objective of maximizing promotion opportunities for veterans "does not automatically make a promotion non-competitive." Id. at 26. The Arbitrator also found that promotions under the VRA program were to be effected through merit and competitive procedures and, citing U.S. Department of the Army, Army Aviation Center and Fort Rucker, Army Information Systems Command, Army Aeromedical Center, Army Troop Support Agency, Army Dental Activity, Army Safety Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 865 (1991), noted that the VRA program does not give VRA appointees preference for promotion.

The Arbitrator further determined that the Agency had provided veteran employees with proper education and training under the VRA program, including the development of training plans. The Arbitrator noted that where training plans had not been provided, the Agency acted to implement a 2-year training plan "to afford [veterans] additional training under a 'VRA' training plan." Award at 41.

The Arbitrator also found that there was no law, rule or regulation that mandated different training for VRA appointees from that provided to other employees or that the Agency issue certificates of training to VRA appointees. The Arbitrator found that there was a high promotion rate for VRA appointees, indicating that the training the Agency provided "must be deemed to be very satisfactory." Id. at 43. In sum, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that the award is deficient because it is contrary to law insofar as the Agency failed to provide training and maintain records and progress reviews for VRA appointees. The Union claims that the award is contrary to FPM chapter 307 for the same reasons.

B. Agency's Opposition

The Agency asserts that the Union's exceptions constitute nothing more than an attempt to relitigate the parties' dispute before the Authority. The Agency contends that all the allegations contained in the Union's exceptions were addressed and rejected by the Arbitrator.

IV. Analysis and Conclusions

We reject the Union's contention that the award violates law pertaining to VRA appointments. The Union has not cited any legal requirement that mandates a particular type of training for VRA appointees or would otherwise call into question the Arbitrator's finding that the Agency had provided VRA appointees with adequate training. Rather, 38 U.S.C. § 4214(a)(1) expressly provides that its purpose is "to promote the maximum of employment and job advancement opportunities within the Federal Government" for eligible veterans. The Arbitrator found that the Agency satisfied this requirement by providing adequate training to the veterans whom it employed. Consequently, we conclude that the Union has not supported its claim that the award is contrary to law.

We also conclude that there is no basis for finding the award deficient under FPM chapter 307. In U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802, 811 (1994), the Authority addressed an exception that relied on an abolished FPM provision. Citing Aaacon Auto Transport v. ICC, 792 F.2d 1156, 1161 (D.C. Cir. 1986) and Bradley v. School Board of Richmond, 416 U.S. 696, 711 (1974), the Authority followed the well-established principle of administrative law that, in general, agencies must apply the law in effect at the time a decision is made, even when that law has changed during the course of a proceeding, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary. In this case, FPM chapter 307 was abolished effective December 31, 1993. In our view, the failure to apply the abolished provision in this case results in no manifest injustice and there is no statutory direction or legislative history to apply the abolished provision.

V. Decision

The Union's exceptions are denied.

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

1. A VRA program appointment is an excepted appointment of a veteran who served during the Vietnam era and the post-Vietnam era to a position that would otherwise be a competitive appointment. VRA appointments are made under the authority of 38 U.S.C. § 2014, renumbered as 38 U.S.C. § 4214 by Pub. L. No. 102-83, § 5(a), Aug. 6, 1991, 105 Stat. 406 (1991). See also 5 C.F.R. § 307.101(d). A VRA appointee who satisfactorily completes 2 years of substantially continuous service is automatically converted to career-conditional or career employment, as appropriate. See 5 C.F.R. § 307.102(b).

2. As noted previously, 38 U.S.C. § 2014 is now found at 38 U.S.C. § 4214 and, as relevant here, contains a minor modification. This section provides:

It is, therefore, the policy of the United States and the purpose of this section to promote the maximum of employment and job advancement opportunities within the Federal Government for disabled veterans and certain veterans of the Vietnam era and of the post-Vietnam era who are qualified for such employment and advancement.

3. The language quoted by the Union appeared in chapter 307 of the Federal Personnel Manual (FPM). We note that during the pendency of this case, FPM chapter 307 was abolished. See FPM Sunset Document, Chapter Summary Sheet at 36.