U.S. Federal Labor Relations Authority

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American Federation of Government Employees, Local 1698 (Union) and U.S. Department of the Navy, Naval Inventory Control Point, Philadelphia, Pennsylvania (Agency)

[ v56 p981 ]

56 FLRA No. 166







December 13, 2000


Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Donald W. Jarrell 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it filled vacant positions using noncompetitive procedures. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated the parties' agreement when it noncompetitively promoted eleven employees as a result of reclassifications based on accretion of higher-graded duties. When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator described the issues as whether the "issue raised by the Union involves classification and[,] therefore, . . . is not a proper subject for arbitration" under the parties' agreement and whether the "promotions . . . were in fact the filling of vacant positions using noncompetitive procedures, a practice not allowed under the [parties'] [a]greement." Award at 1-2.

      With respect to the first issue, the Arbitrator found that the grievance was arbitrable. In this connection, the Arbitrator determined that although the grievance indirectly involved a classification matter, the Agency provided "no evidence that the Union grievance challenge[d] either the integrity of the classification process or the manner in which the [disputed] positions . . . were classified." Id. at 2.

      With respect to the second issue, the Arbitrator found that employees were often promoted through accretion. The Arbitrator also found that the Agency's practice of using accretion as the "normal way to promote employees" appeared to "differ" from the parties' agreement, "which clearly intends to limit the impact of accretion on opportunities for merit promotion." Id. at 8. However, the Arbitrator found that the Union was aware of the practice and the Arbitrator concluded that the Union's failure to challenge the practice for an extended period of time "suggests that [the Union] agreed with [the practice]." Id. at 9. The Arbitrator stated that "[p]ast practice by mutual agreement, where it differs from the written [a]greement, takes precedence over contract language . . . ." Id.

      The Arbitrator concluded that the Union presented no evidence demonstrating that the disputed accretions differed in any significant manner from previous accretions executed in accordance with past practice. Accordingly, the Arbitrator determined that the Union failed to demonstrate that the Agency violated the parties' "[a]greement[,] as modified by past practice." Id. Therefore, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the past practice of accretions "is not controlling" in this case because a past practice cannot exist unless it involves a condition of employment. Exceptions at 4, citing United States Dep't of Labor, Wash., D.C., 38 FLRA 899 (1990). In this connection, the Union argues that the award is contrary to section 7103(a)(14)(B) of the Statute because the accretion process involves a classification matter and, therefore, is not a condition of employment. [n2] 

      The Union also argues that the award is contrary to 5 C.F.R. § 335.103(c)(3)(ii) because agencies are required to establish competitive procedures for promoting [ v56 p982 ] employees and because it is "contrary to law" to replace merit promotion with promotion through accretion. Exceptions at 6. [n3]  The Union asserts that it "did not condone" the Agency's practice of using accretion as the normal way to promote employees, and that accretion is intended to be an exception to competitive promotion. Id. at 5.

B.     Agency's Opposition

      The Agency contends that the Union's exceptions do not establish that the award is deficient.

IV.     Analysis and Conclusions

A.     The Union's exception that the award is contrary to 7103(a)(14)(B) of the Statute is barred by section 2429.5 of the Authority's Regulations.

      Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. [n4]  See, e.g., Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995).

      The Union argues that the parties could not create the disputed past practice in this case because the accretion process concerns a classification matter and, as a result, is excepted from the definition of condition of employment under section 7103(a)(14)(B) of the Statute. It is clear from the record that the Union was aware that the existence and enforcement of a past practice regarding accretions was an issue at the hearing. In this regard, the Agency specifically argued to the Arbitrator that the disputed accretions were accomplished consistent with many other accretions, and that the Union was aware of, and approved, the same accretions it was challenging in the grievance. Thus, the Union's argument that the practice was not enforceable could have been presented to the Arbitrator. See AFGE, Local 1399, 54 FLRA 1143, 1149-50 (1998).

      There is no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the accretion process involves a classification matter. In fact, the Agency -- not the Union -- contended that the grievance involved classification matters in support of its argument that the grievance was not arbitrable. Thus, it is apparent that the Union took the position before the Arbitrator that the grievance was arbitrable because it did not involve classification matters. Further, in its exceptions, the Union continues to maintain that the Arbitrator "properly concluded" that the grievance did not involve a classification matter and was arbitrable. Exceptions at 3.

      Based on the foregoing, we refuse to consider the Union's classification argument under section 7103(a)(14)(B) for the first time on exception. See, e.g., AFGE, Local 2145, 55 FLRA 366 (1999).

B.     The award is not contrary to law, rule, or regulation.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union contends that the award is contrary to 5 C.F.R. § 335.103(c)(3)(ii) because an agency's accretion process is not intended by the regulation to replace merit promotion as the normal method of promoting employees. However, 5 C.F.R. § 335.103(c)(3)(ii) permits an agency discretion to utilize an accretion process. Although the regulation designates an agency's accretion process as an exception to required competitive procedures, the regulation does not limit the agency's discretion regarding how frequently the accretion process is exercised. Further, the Union does not provide any other basis to find that the Agency's use of the accretion process is contrary to the regulation. As such, the Union has not demonstrated that the award is contrary to 5 C.F.R. § 335(c)(3)(ii).

V.     Decision

      The Union's exceptions are denied.

Footnote # 1 for 56 FLRA No. 166

   Member Pope did not participate in this decision.

Footnote # 2 for 56 FLRA No. 166

   Section 7103(a)(14)(B) provides, in pertinent part:

(14) "conditions of employment" means personnel policies, practices, and matters . . . affecting working conditions, except that such term does not include policies, practices, and matters--
(B) relating to the classification of any position.

Footnote # 3 for 56 FLRA No. 166

   5 C.F.R. § 335.103(c)(3)(ii) provides, in pertinent part:

(3) Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section:
(ii) A promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities.

Footnote # 4 for 56 FLRA No. 166

   Section 2429.5 of the Authority's Regulations provides, in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator.