American Federation of Government Employees, Local 2532, AFL-CIO (Union) and United States Small Business Administration, Central Office (Activity)  

 3 FLRA No. 86
 
 LOCAL 2532, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
 and
 
 UNITED STATES SMALL BUSINESS
 ADMINISTRATION, CENTRAL OFFICE
 Activity
 
                                            Case No. 0-AR-64
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR ROBERT BENNETT LUBIC FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE AROSE WHEN AN EMPLOYEE FILED
 A GRIEVANCE UNDER THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE ALLEGING
 PRESELECTION IN A PROMOTION ACTION IN VIOLATION OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.  THE GRIEVANT SOUGHT PROMOTION TO THE
 POSITION INVOLVED AS RELIEF FOR THE ALLEGED VIOLATION.  THE ACTIVITY, IN
 DENYING THE GRIEVANCE, DID NOT RESPOND WITHIN THE TIME LIMITS PRESCRIBED
 IN THE NEGOTIATED GRIEVANCE PROCEDURE, ARTICLE 22, SECTION I.
 
    THEREAFTER, BECAUSE OF THE ACTIVITY'S FAILURE TO RESPOND WITHIN THE
 CONTRACTUAL TIME LIMITS, THE UNION FILED ANOTHER GRIEVANCE CONTENDING
 THAT THE PROMOTION SOUGHT BY THE GRIEVANT SHOULD BE IMMEDIATELY AWARDED
 BASED ON THE LANGUAGE OF ARTICLE 22, SECTION J OF THE CONTRACT WHICH
 READS IN PERTINENT PART:
 
    . . . THOSE OFFICIAL(S) WHO FAIL TO MEET THE PRESCRIBED TIME LIMITS
 TO REPLY, CAUSE THE
 
    DECISION TO BE IN FAVOR OF THE AGGRIEVED, AND THE RELIEF SOUGHT BY
 THE AGGRIEVED IMMEDIATELY
 
    AWARDED, PROVIDED THE RELIEF REQUESTED DOES NOT EXTEND BEYOND THE
 AUTHORITY OF THE DESIGNATED
 
    OFFICIAL TO AWARD, OR ANY ACTION PROHIBITED BY LAW OR REGULATION.
 
    THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ISSUE WAS STATED BY THE ARBITRATOR AS FOLLOWS:
 
    WHETHER SECTION J OF ARTICLE 22 OF THE GENERAL (COLLECTIVE
 BARGAINING) AGREEMENT OF THE
 
    PARTIES . . . REQUIRES RETROACTIVE PROMOTION OF AN EMPLOYEE TOGETHER
 WITH AN AWARD OF BACK PAY
 
    AND COUNSEL FEES DUE TO THE UNTIMELY RESPONSE BY . . . (THE AGENCY) .
 . . TO HIS GRIEVANCE
 
    CONCERNING THE ALLEGED FAILURE OF THAT AGENCY TO PROMOTE HIM?
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR FOUND THAT THE
 LAST SENTENCE OF ARTICLE 22, SECTION J, ALONG WITH VARIOUS REQUIREMENTS
 OF THE STATUTE, AND EXECUTIVE ORDER 11491, AS AMENDED, MANDATED THE
 APPLICATION OF CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL (FPM)
 ENTITLED PROMOTION AND INTERNAL PLACEMENT.  FURTHER, HE FOUND THAT ONLY
 THE ISSUE OF UNTIMELY REPLY TO THE GRIEVANCE WAS BEFORE HIM AND NOT THE
 ISSUE OF PRESELECTION RAISED IN THE EMPLOYEE'S FIRST GRIEVANCE.  BASED
 UPON HIS EXAMINATION OF THIS CHAPTER OF THE FPM, WHICH REQUIRES
 PROMOTIONS TO BE BASED ON MERIT AND CONTAINS NO EXCEPTION TO THAT RULE
 FOR AN UNTIMELY REPLY TO A GRIEVANCE, HE CONCLUDED THAT, "ARTICLE 22,
 SECTION J, BY ITSELF CANNOT MANDATE THE AUTOMATIC PROMOTION OF . .  .
 (THE GRIEVANT) . . . FOR UNTIMELY REPLY BY THE AGENCY TO HIS GRIEVANCE,
 BASED UPON PRESELECTION, IN CONTRADICTION TO THE REQUIREMENTS OF THE
 FEDERAL PERSONNEL MANUAL."
 
    WITH RESPECT TO THE UNION'S CONTENTIONS THAT A DECISION OF THE
 COMPTROLLER GENERAL SUPPORTED ITS THEORY THAT THE UNTIMELY REPLY BY THE
 ACTIVITY MUST RESULT IN THE RETROACTIVE PROMOTION OF THE EMPLOYEE, THE
 ARBITRATOR NOTED THAT THE INCLUSION IN AN AGREEMENT OF LANGUAGE SUCH AS
 THAT FOUND IN THE DISPUTED PROVISION DOES NOT MAKE THAT PROVISION
 MANDATORY.  HE CONCLUDED, IN THIS REGARD:
 
    (T)HERE IS NOTHING IN SECTION J OF ARTICLE 22 OF THE GENERAL
 AGREEMENT REQUIRING PROMOTION
 
    DUE TO AN UNTIMELY RESPONSE BY THE . . . (AGENCY) . . . TO A
 GRIEVANCE IF SUCH ACTION BE
 
    "PROHIBITED BY LAW OR REGULATION", AND AS STATED ABOVE, A
 NON-MERITORIOUS RETROACTIVE
 
    PROMOTION IN THE PRESENT MATTER IS SPECIFICALLY BARRED BY THE FEDERAL
 PERSONNEL MANUAL.  THUS,
 
    ARTICLE 22, SECTION J, OF THE GENERAL AGREEMENT IS DISCRETIONARY IN
 RESPECT TO THAT PORTION
 
    WHICH WOULD BE APPLICABLE TO THE PROMOTION . . .
 
    THEREFORE, THE ARBITRATOR FOUND THAT HE HAD NO ALTERNATIVE OTHER THAN
 TO RENDER AN AWARD IN FAVOR OF THE AGENCY.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S TWO EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT
 IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION ASSERTS THE AWARD IS CONTRARY TO
 REGULATION.  SPECIFICALLY, THE UNION ALLEGES THE AWARD VIOLATES FEDERAL
 MERIT PROMOTION POLICY AS CONTAINED IN THE FPM, CHAPTER 335.  THE UNION
 ASSERTS THE ARBITRATOR VIOLATED THE FPM BY FAILING TO APPLY THE SECTIONS
 OF CHAPTER 335 DEALING WITH PROCEDURAL VIOLATIONS SUCH AS PRESELECTION,
 WHICH WOULD SERVE AS A BASIS FOR A RETROACTIVE PROMOTION, AND BY HIS
 FAILURE TO CONSIDER ALTERNATIVE REMEDIES IN THIS REGARD.
 
    ON ITS FACE, THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO
 REGULATION STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2094 AND VETERANS ADMINISTRATION
 HOSPITAL, CASE NO. O-AR-24, 2 FLRA NO. 88 (FEB. 22, 1980).  HOWEVER, IN
 THIS CASE THERE IS NO BASIS FOR A FINDING THAT THE AWARD IS DEFICIENT.
 THUS, THE UNION HAS NOT DEMONSTRATED THE ARBITRATOR'S AWARD, WHICH HOLDS
 THAT A RETROACTIVE PROMOTION MAY NOT BE AWARDED BASED ON AN UNTIMELY
 RESPONSE TO A GRIEVANCE, IS CONTRARY TO THE CITED PROVISIONS OF THE FPM.
  IN THIS REGARD, THE PROVISIONS OF THE FPM CITED BY THE UNION RELATE TO
 PROCEDURAL VIOLATIONS IN PROMOTION ACTIONS.  HOWEVER, THE ARBITRATOR
 SPECIFICALLY REFUSED TO MAKE A FINDING AS TO WHETHER OR NOT THERE HAS
 BEEN A VIOLATION WITH RESPECT TO THE PROMOTION ACTION, STATING THE ISSUE
 WAS NOT BEFORE HIM.  ACCORDINGLY, THE UNION'S FIRST EXCEPTION PROVIDES
 NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND
 SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION, THE UNION ALLEGES THE ARBITRATOR "ERRED IN
 MISCONSTRUING APPLICABLE COMPTROLLER GENERAL DECISIONS INTERPRETING THE
 BACK PAY ACT OF 1966 .  . . AND ITS IMPLEMENTING REGULATIONS . . . ." IN
 SUPPORT OF THIS EXCEPTION THE UNION CITES CERTAIN COMPTROLLER GENERAL
 DECISIONS CONCERNING RETROACTIVE PROMOTIONS AND BACK PAY AND ASSERTS
 THAT THE CONTRACT PROVISION IN QUESTION CONTAINS A "NONDISCRETIONARY
 PROVISION" WITHIN THE MEANING OF THE BACK PAY ACT REGULATIONS WHICH
 THEREBY MANDATES THE AWARD SOUGHT BY THE GRIEVANT BECAUSE OF THE
 UNTIMELY REPLY TO HIS GRIEVANCE.  /2/
 
    THE THRUST OF THE UNION'S CONTENTIONS IN SUPPORT OF ITS SECOND
 EXCEPTION IS THAT ARTICLE 22, SECTION J CONTAINS A NONDISCRETIONARY
 PROVISION WHICH WOULD MANDATE THE PROMOTION SOUGHT BY THE GRIEVANT IN
 THIS CASE.  HOWEVER, WITH REFERENCE TO BOTH THE COMPTROLLER GENERAL
 DECISIONS CITED BY THE UNION AND THE BACK PAY ACT, THE ARBITRATOR FOUND
 ARTICLE 22, SECTION J DID NOT CONTAIN A NONDISCRETIONARY PROVISION WITH
 RESPECT TO THE GRIEVANT'S PROMOTION.  THUS, THE UNION IS DISAGREEING
 WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE COLLECTIVE
 BARGAINING PROVISIONS IN QUESTION.  IT IS A WELL ESTABLISHED PRINCIPLE
 THAT THE ARBITRATOR'S CONSTRUCTION OF THE CONTRACT IS NOT SUBJECT TO
 REVIEW.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, CASE NO. O-AR-7, 2 FLRA NO. 60 (JAN. 17, 1980).  SEE FEDERAL
 AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL AVIATION
 ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST REGION,
 CASE NO. O-AR-20, 2 FLRA NO. 85 (FEB. 21, 1980), AND THE PRIVATE SECTOR
 CASES CITED THEREIN.  THEREFORE, THE SECOND EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C 7122(A) AND SECTION 2425.3
 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE
 ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., JUNE 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7112(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH ACTION AND
 MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS
 NECESSARY, CONSISTENT WITH APPLICABLE LAW, RULES, OR REGULATIONS.
 
    /2/ THE DEFINITION OF A NONDISCRETIONARY PROVISION IS FOUND UNDER 5
 C.F.R. SECTION 550-802(D) AND READS AS FOLLOWS:
 
    "NON DISCRETIONARY PROVISION" MEANS ANY PROVISION OF LAW, EXECUTIVE
 ORDER, REGULATION,
 
    PERSONNEL POLICY ISSUED BY AN AGENCY,
 
    OR A COLLECTIVE BARGAINING AGREEMENT THAT REQUIRES AS AGENCY TO TAKE
 PRESCRIBED ACTION UNDER
 
    STATED CONDITIONS OR CRITERIA.