National Association of Government Employees, Local R4-6 (Union) and Headquarters, U.S. Army Transportation Center and Fort Eustis (Activity)  

 3 FLRA No. 31
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL
 R4-6
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY
 TRANSPORTATION CENTER AND
 FORT EUSTIS
 Activity
 
                                            Case No. 0-AR-39
 
                                 DECISION
 
    THIS CASE IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR LEROY S. MERRIFIELD 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 IN THIS CASE AROSE WHEN THE
 GRIEVANT WAS NOT SELECTED FOR ANY OF THREE POSITIONS ESTABLISHED AS A
 RESULT OF A REORGANIZATION OF THE DIRECTORATE OF TRAINING AT THE U.S.
 ARMY TRANSPORTATION SCHOOL.  INSTEAD, THE EMPLOYEE SELECTED FOR EACH
 POSITION WAS AN EMPLOYEE WHO HAD BEEN PERFORMING THE DUTIES OF THE
 POSITION PENDING ITS CLASSIFICATION.  THE UNION FILED A GRIEVANCE ON
 BEHALF OF THE GRIEVANT ALLEGING THAT THE ACTIVITY HAD VIOLATED THE
 NEGOTIATED AGREEMENT BY PRESELECTING EMPLOYEES FOR PERMANENT POSITIONS
 AND BY NONCOMPETITIVELY DETAILING EMPLOYEES TO POSITIONS WITH "KNOWN
 PROMOTION POTENTIAL." THE UNION ASSERTED THAT THE ACTIVITY VIOLATED
 SECTION 1 THROUGH 4 OF ARTICLE XXII AND SECTION 8 OF ARTICLE XXIII.  AS
 CITED BY THE ARBITRATOR, THESE SECTIONS STATE IN PERTINENT PART:
 
    ARTICLE XXII
 
    SECTION 1.  A DETAIL IS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A
 DIFFERENT POSITION OR
 
    SET OF DUTIES FOR A SPECIFIED PERIOD . . .
 
    SECTION 2.  VERBAL DETAILS ARE DEFINED AS DETAILS OF ANY DURATION UP
 TO 30 DAYS
 
    . . .  VERBAL DETAILS TO A HIGHER GRADE POSITION OR A POSITION WITH
 KNOWN PROMOTION POTENTIAL
 
    WILL NOT BE GIVEN REPEATEDLY TO ONE EMPLOYEE TO THE EXCLUSION OF
 OTHER ELIGIBLE EMPLOYEES
 
    . . .
 
    SECTION 3.  SUPERVISORS ARE RESPONSIBLE FOR SELECTING EMPLOYEES FOR
 DETAIL ON AN IMPARTIAL
 
    BASIS . . . SECTION 4.  . . . IF A DETAIL OF MORE THAN 60 DAYS IS
 MADE TO A HIGHER GRADE
 
    POSITION, OR TO A POSITION WITH KNOWN PROMOTION POTENTIAL, IT MUST BE
 MADE UNDER COMPETITIVE
 
    PROMOTION PROCEDURES.
 
    ARTICLE XXIII
 
    SECTION 8.  IF AN EMPLOYEE FAILS TO RECEIVE PROPER CONSIDERATION IN A
 PROMOTION ACTION AND
 
    THE ERRONEOUS PROMOTION IS ALLOWED TO STAND, THE EMPLOYEE WILL BE
 GIVEN PRIORITY CONSIDERATION
 
    FOR THE NEXT APPROPRIATE VACANCY BEFORE CANDIDATES UNDER A NEW
 PROMOTION OR OTHER PLACEMENT
 
    ACTION ARE CONSIDERED.
 
    UNABLE TO RESOLVE THE DISPUTE, THE PARTIES ULTIMATELY SUBMITTED THE
 GRIEVANCE TO ARBITRATION.  THE ISSUES ADDRESSED BY THE ARBITRATOR, AS
 STATED IN HIS AWARD, WERE:
 
    (1) WAS THERE A CONTRACTUAL VIOLATION OF SECTIONS 1 THROUGH 4 OF
 ARTICLE XXII AND SECTION 8
 
    OF ARTICLE XXIII OF THE NEGOTIATED AGREEMENT?
 
    (2) WAS THE GRIEVANT DENIED PROPER CONSIDERATION AND THEREFORE NOT
 SELECTED FOR THE
 
    VACANCIES IN QUESTION DUE TO THE ALLEGED VIOLATIONS OF SECTIONS 1
 THROUGH 4 OF ARTICLE XXII
 
    AND SECTION 8 OF ARTICLE XXIII?
 
    THE ARBITRATOR CONCLUDED THAT THE ACTIVITY HAD NOT VIOLATED THE
 NEGOTIATED AGREEMENT.  IN THE OPINION ACCOMPANYING HIS AWARD, THE
 ARBITRATOR FIRST DETERMINED THAT THE PROVISIONAL SETS OF DUTIES TO WHICH
 THE EMPLOYEES WERE ORIGINALLY ASSIGNED WERE NOT "POSITIONS OF KNOWN
 PROMOTIONAL POTENTIAL." HE CONCLUDED THE POSITIONS DID NOT BECOME SUCH
 UNTIL THEY WERE CLASSIFIED, AT WHICH TIME THE ACTIVITY PROCEEDED TO
 ADVERTISE THEM AND FILL THEM THROUGH THE REGULAR COMPETITIVE SELECTION
 PROCEDURES.
 
    ADDITIONALLY, THE ARBITRATOR HELD THAT "THE GRIEVANT WAS NOT DENIED
 PROPER CONSIDERATION FOR THE VACANCIES INVOLVED IN THIS CASE." HE FOUND
 SHE WAS PLACED ON THE "BEST QUALIFIED LIST" FOR ALL THREE POSITIONS AND
 WAS CONSIDERED IN LIGHT OF HER GENERAL EDUCATION, TRAINING, AND OVERALL
 EXPERIENCE.  ACCORDING TO EVIDENCE PROFFERED BY THE AGENCY AND ACCEPTED
 BY THE ARBITRATOR, THE GRIEVANT WAS GIVEN PROPER CONSIDERATION FOR EACH
 POSITION.  FINDING NO EVIDENCE TO SUPPORT THE UNION'S CONTENTIONS, THE
 ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION 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 EXCEPTION, 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 EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY TO
 LAW, RULE, OR REGULATION.  IN SUPPORT OF THIS EXCEPTION THE UNION
 ASSERTS THAT THE NEGOTIATED AGREEMENT "CLEARLY PROVIDES FOR THE
 REGULATION OF DETAILS." THE UNION REFERS TO THE NEGOTIATED AGREEMENT
 PROVISIONS WHICH WERE BEFORE THE ARBITRATOR AND STATES THE PURPOSE OF
 THESE PROVISIONS IS TO INSURE THAT ALL EMPLOYEES WILL BE TREATED FAIRLY,
 WHICH, ACCORDING TO THE UNION, DID NOT OCCUR IN THIS CASE.  THE UNION
 ALSO STATES THE AWARD VIOLATES "THE MOST BASIC REGULATIONS" SURROUNDING
 THE MERIT SYSTEM PRINCIPLES, AND DISAGREES WITH THE ARBITRATOR'S
 FINDINGS ON "THE ISSUE OF WHETHER OR NOT THE POSITIONS HAD KNOWN
 PROMOTIONAL POTENTIAL WITHIN THE MEANING OF THE NEGOTIATED AGREEMENT."
 
    ON ITS FACE, THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO LAW,
 RULE, OR REGULATION STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) 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 THE UNION DOES NOT DEMONSTRATE IN ITS
 EXCEPTION THAT THIS AWARD IS CONTRARY TO LAW, RULE OR REGULATION.  THE
 UNION DOES NOT STATE WHAT "LAW, RULE, OR REGULATION" THE AWARD ALLEGEDLY
 VIOLATES, OR HOW THE ARBITRATOR'S AWARD, IN WHICH HE ANSWERED THE
 QUESTION BEFORE HIM AND FOUND NO VIOLATION OF THE COLLECTIVE BARGAINING
 AGREEMENT, VIOLATES A "LAW, RULE, OR REGULATION." RATHER, THE UNION'S
 ASSERTIONS IN SUPPORT OF ITS EXCEPTION CONSTITUTE DISAGREEMENT WITH THE
 ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE COLLECTIVE BARGAINING
 AGREEMENT PROVISIONS IN QUESTION.  THE UNION IS SEEKING TO HAVE ITS OWN
 INTERPRETATION OF ARTICLES XXII AND XXIII SUBSTITUTED FOR THAT OF THE
 ARBITRATOR.  IT IS A WELL ESTABLISHED PRINCIPLE THAT THE ARBITRATOR'S
 CONSTRUCTION OF THE CONTRACT IS NOT SUBJECT TO REVIEW.  UNITED STATES
 ARMY MISSILE MATERIAL 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 UNION'S 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., MAY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7122(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 LAWS, RULES, OR
 
    REGULATIONS.