17:0365(56)AR - EPA, Region 9 and Engineers and Scientists of California, MEBA -- 1985 FLRAdec AR

 17 FLRA No. 56
 
 ENVIRONMENTAL PROTECTION AGENCY
 REGION 9
 Activity
 
 and
 
 ENGINEERS AND SCIENTISTS OF
 CALIFORNIA, MEBA, AFL-CIO
 Union
 
                                            Case No. O-AR-840
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Harvey Letter filed by the Activity under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The parties stipulated the issue before the Arbitrator as follows:
 
          Did the Employer violate Article XV of the Agreement in filling
       the position of Underground Injection Control Team Leader in the
       Water Supply Section?  If so, what shall be the remedy?
 
    In a corrected award, the Arbitrator ruled in favor of the Union and
 directed:
 
          1.  In filling professional positions of Grades GS-12 and
       above, including Team Leader positions, that are encompassed by
       the "Unit Designation" which appears in Article I, Section 3 of
       the Parties' Labor-Management Agreement, the Employer shall
       implement the procedures of Article XV of the Agreement.
 
    In its exceptions, the Activity contends that the award is contrary
 to law and Government-wide regulation, and that the Arbitrator exceeded
 his authority.  Specifically, the Activity argues that the award
 violates management's right under section 7106(a)(2)(C) of the Statute
 and FPM chapter 335, subchapter 1-4, Requirement 4, to fill positions
 from among properly ranked and certified candidates for promotion or
 from any other appropriate source.  The Authority concludes that to the
 extent the Arbitrator's award requires the Activity to fill positions
 from among candidates resulting from adherence to the procedures of the
 parties' agreement and precludes selection from other appropriate
 sources, the award is contrary to section 7106(a)(2)(C) of the Statute
 and FPM chapter 335, subchapter 1-4, Requirement 4, and must be
 modified.  /1/ U.S. Army Infantry Center, Ft. Benning, Georgia and
 American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA
 161 (1983).
 
    The Activity also argues that the Arbitrator exceeded his authority
 when he rendered an award covering " . . . professional positions of
 Grades GS-12 and above, including Team Leader positions. .  , . ."
 Noting that the stipulated issue before the Arbitrator referenced only
 the filling of one Team Leader position, the Activity argues that the
 Arbitrator was without authority to render an order as to other
 positions.  Under the facts presented, the Authority is persuaded by the
 Agency's argument.  Indeed, the Union only sought a remedy " . . . that
 would require all Team Leader positions to be filled pursuant to Article
 XV." Under the facts presented, the Authority concludes that the
 Arbitrator exceeded his authority when he issued an affirmative order
 affecting positions and employees beyond the scope of the stipulated
 grievance.  American Federation of Government Employees, AFL-CIO,
 National Immigration and Service Council and U.S. Immigration and
 Naturalization Service, 15 FLRA No. 76 (1984).  To that limited extent,
 the award is also deficient and must be modified.
 
    Accordingly, the Authority modifies the award to provide the
 following remedy in place of that ordered by the Arbitrator:
 
          In filling Team Leader positions that are encompassed by the
       "Unit Designation" which appears in Article I, Section 3 of the
       Parties' Labor-Management Agreement, the Employer shall implement
       the procedures of Article XV of the Agreement.  In addition, the
       filling of Team Leader positions must be in accordance with
       controlling law and regulation, including section 7106(a) of the
       Federal Service Labor-Management Relations Statute and Chapter 335
       of the Federal Personnel Manual, subchapter 1-4, Requirement 4.
 
 Issued, Washington, D.C., March 28, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Activity also alleges that the Arbitrator's award violates
 management's right to decide not to fill the positions involved.
 However, on its face the award does not require that positions be
 filled, but rather, directs actions by management "(i)n filling . . .
 positions. . . ." Moreover as modified by the Authority, the award is
 consistent with section 7106(a)(2)(C) of the Statute and FPM chapter 335
 and therefore does not compel management to fill any position should it
 choose to leave such position vacant.  Accordingly, no basis is provided
 for finding the award, as modified, deficient on this ground as alleged
 by the Activity.