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 3 FLRA No. 35
 
 NATIONAL AERONAUTICS AND
 SPACE ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2284
 Union
 
                                            Case No. 0-AR-10
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION OF REVIEW OF THE
 AWARD OF ARBITRATOR JOHN BAILEY 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 GRIEVANT, A QUALITY ENGINEER, GS-12,
 AT THE LYNDON B. JOHNSON SPACE CENTER, HOUSTON, TEXAS, HAD BEEN DEMOTED
 FROM A GS-13 POSITION DUE TO A REDUCTION IN FORCE AND THUS BECAME A
 REPROMOTION ELIGIBLE ENTITLED TO A SPECIAL CONSIDERATION FOR
 REPROMOTION.  TWO GRIEVANCES WERE FILED ALLEGING THAT:  (1) THE GRIEVANT
 WAS NOT GIVEN SPECIAL CONSIDERATION WHEN SEVERAL VACANT GS-13 POSITIONS
 WERE FILLED, AND (2) THE GRIEVANT WAS NOT GIVEN SPECIAL CONSIDERATION
 FOR A POSITION THAT WAS "CREATED . . . FOR THE EXPRESS PURPOSE OF
 PLACING A SPECIFIC INDIVIDUAL . . . IN THE POSITION . . ." THE
 GRIEVANCES WERE ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUES BEFORE HIM TO BE:
 
    (1) WHETHER THE GRIEVANT . . . WAS DENIED THE "SPECIAL CONSIDERATION"
 FOR REPROMOTION TO
 
    WHICH HE WAS ENTITLED AS A "RE-PROMOTION ELIGIBLE" IN JULY AND
 SEPTEMBER 1977.
 
    (2) IF SO, WHETHER SUCH DENIAL OF "SPECIAL CONSIDERATION" WAS
 MOTIVATED IN PART BY THE
 
    GRIEVANT'S MEMBERSHIP IN AND ACTIVITIES IN BEHALF OF THE UNION.
 
    (3) IF SO, WHETHER BUT FOR ANY SUCH ANTI-UNION DISCRIMINATION AGAINST
 HIM BECAUSE OF HIS
 
    MEMBERSHIP AND ACTIVITIES IN BEHALF OF THE UNION, THE GRIEVANT WOULD
 HAVE BEEN PROMOTED TO
 
    FILL A VACANCY ON EITHER OF THE FOLLOWING DATES:
 
    (A) JULY 10, 1977, OR
 
    (B) SEPTEMBER 1, 1977.
 
    THE ARBITRATOR CITED THE FOLLOWING PROVISIONS OF THE PARTIES'
 AGREEMENT AS PERTINENT TO THE CASE HEREIN:
 
                                 ARTICLE 3
 
                            RIGHTS OF EMPLOYEES
 
    SECTION 1.  EMPLOYEES HAVE THE RIGHT, FREELY AND WITHOUT FEAR OF
 PENALTY OR REPRISAL, TO
 
    JOIN AND ASSIST THE UNION OR TO REFRAIN FROM SUCH ACTIVITY.  THE
 FREEDOM OF SUCH EMPLOYEES
 
    SHALL BE RECOGNIZED AS EXTENDING TO PARTICIPATION IN THE MANAGEMENT
 OF THE UNION AND ACTING
 
    FOR THE UNION IN THE CAPACITY OF A REPRESENTATIVE, INCLUDING
 PRESENTATION OF ITS VIEWS TO
 
    OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR OTHER APPROPRIATE
 AUTHORITY.  THIS SECTION
 
    DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF THE UNION, OR
 ACTING AS A UNION
 
    REPRESENTATIVE, WHEN THE PARTICIPATION OR ACTIVITY WOULD RESULT IN A
 CONFLICT OR APPARENT
 
    CONFLICT OF DUTIES OF THE EMPLOYEE.  THE EMPLOYER AGREES TO TAKE
 ACTION BY ONCE-A-YEAR
 
    CENTER-WIDE ANNOUNCEMENT TO ASSURE THAT EMPLOYEES ARE APPRISED OF
 THEIR RIGHTS UNDER THIS
 
    SECTION.  IT IS FURTHER AGREED THAT NO INTERFERENCE, RESTRAINT,
 COERCION, OR DISCRIMINATION
 
    WILL BE PRACTICED BY THE EMPLOYER OR THE UNION TO ENCOURAGE OR
 DISCOURAGE MEMBERSHIP IN THE
 
    LABOR ORGANIZATION.
 
   .          .          .          .
 
 
                                ARTICLE 29
 
                            REDUCTION IN FORCE
 
   .          .          .          .
 
 
    SECTION 7.  ANY EMPLOYEE DEMOTED IN NASA IN A REDUCTION IN FORCE WILL
 BE GIVEN SPECIAL
 
    CONSIDERATION FOR REPROMOTION TO ANY VACANCY FOR WHICH HE IS
 QUALIFIED AND IN THE AREA OF
 
    CONSIDERATION AT HIS FORMER GRADE (OR ANY INTERVENING GRADE) BEFORE
 ANY ATTEMPT IS MADE TO
 
    FILL THE POSITION BY OTHER MEANS.
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR NOTED THAT,
 UNDER THE PROVISIONS OF THE PARTIES' AGREEMENT, A REPROMOTION ELIGIBLE
 MERELY HAS TO BE "QUALIFIED" IN ORDER TO RECEIVE SPECIAL CONSIDERATION
 FOR REPROMOTION BUT, IN ACCORDANCE WITH THE FEDERAL PERSONNEL MANUAL,
 CHAPTER 335, SECTION 4-3(C)(2), HE MUST BE "WELL QUALIFIED" TO BE
 PROMOTED.  FEDERAL PERSONNEL MANUAL CHAPTER 335, SECTION 4-3(C)(2)
 PROVIDED AT THE TIME INVOLVED HEREIN:
 
    C.  REPROMOTION TO GRADES OR POSITIONS FROM WHICH DEMOTED WITHOUT
 PERSONAL CAUSE.
 
   .          .          .          .
 
 
    (2) SPECIAL CONSIDERATION FOR REPROMOTION.  AN EMPLOYEE DEMOTED
 WITHOUT PERSONAL CAUSE IS
 
    ENTITLED TO SPECIAL CONSIDERATION FOR REPROMOTION IN THE AGENCY IN
 WHICH HE WAS
 
    DEMOTED.  ALTHOUGH HE IS NOT GUARANTEED REPROMOTION, ORDINARILY HE
 SHOULD BE REPROMOTED WHEN A
 
    VACANCY OCCURS IN A POSITION AT HIS FORMER GRADE (OR ANY INTERVENING
 GRADE) FOR WHICH HE HAS
 
    DEMONSTRATED THAT HE IS WELL-QUALIFIED, UNLESS THERE ARE PERSUASIVE
 REASONS FOR NOT DOING
 
    SO.  CONSIDERATION OF AN EMPLOYEE ENTITLED TO SPECIAL CONSIDERATION
 FOR REPROMOTION MUST
 
    PRECEDE EFFORTS TO FILL THE VACANCY BY OTHER MEANS, INCLUDING
 COMPETITIVE PROMOTION
 
    PROCEDURES, EXCEPT WHEN ANOTHER EMPLOYEE HAS A STATUTORY OR
 REGULATORY RIGHT TO BE PLACED IN
 
    OR CONSIDERED FOR THE POSITION.  IF A SELECTING OFFICIAL CONSIDERS AN
 EMPLOYEE ENTITLED TO
 
    SPECIAL CONSIDERATION FOR REPROMOTION UNDER THIS PARAGRAPH BUT
 DECIDES NOT TO SELECT HIM FOR
 
    PROMOTION AND THEN THE EMPLOYEE IS CERTIFIED TO THE OFFICIAL AS ONE
 OF THE BEST-QUALIFIED
 
    UNDER COMPETITIVE PROMOTION PROCEDURES FOR THE SAME POSITION, THE
 OFFICIAL MUST STATE HIS
 
    REASONS FOR THE RECORD IF HE DOES NOT THEN SELECT THE EMPLOYEE.
 
    THE ARBITRATOR NOTED FURTHER THAT ALTHOUGH THE FPM GUARANTEES THAT A
 REPROMOTION ELIGIBLE WILL RECEIVE SPECIAL CONSIDERATION FOR REPROMOTION,
 IT DOES NOT GUARANTEE REPROMOTION.  THE ARBITRATOR THEN CONCLUDED THAT,
 BASED UPON THE EVIDENCE BEFORE HIM, THE GRIEVANT WAS GIVEN SPECIAL
 CONSIDERATION FOR REPROMOTION FOR THE POSITIONS IN QUESTION BUT WAS
 DENIED REPROMOTION BECAUSE HE WAS NOT WELL-QUALIFIED.  THE ARBITRATOR
 ALSO FOUND THAT THE GRIEVANT WAS NOT DENIED REPROMOTION BECAUSE OF HIS
 UNION ACTIVITIES.  THAT ARBITRATOR THEREFORE DENIED THE GRIEVANCES.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411
 (1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
 AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
 44741), REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE UNION SEEKS
 AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTIONS
 DISCUSSED BELOW.  THE AGENCY FILED AN OPPOSITION.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW 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 CONTENDS THAT THE AWARD IS CONTRARY
 TO REGULATION.  IN SUPPORT OF THIS EXCEPTION, THE UNION STATES THAT IN
 ORDER TO PERMIT THE AWARD TO STAND, THE REGULATIONS PERTAINING TO
 SPECIAL CONSIDERATION FOR PROMOTION WOULD HAVE TO BE INTERPRETED AS
 ORDINARILY BARRING ALL EMPLOYEES DEMOTED WITHOUT PERSONAL CAUSE, SAVE
 THOSE THAT ARE WELL QUALIFIED.  THE UNION STATES THAT SUCH AN
 INTERPRETATION WOULD BE UNJUSTIFIED "SERIOUS AND FAR-REACHING DEPARTURE
 FROM ESTABLISHED PRACTICE."
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHEN IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES REGULATION.  HOWEVER, IN THIS
 CASE THE UNION HAS NOT PRESENTED SUFFICIENT FACTS AND CIRCUMSTANCES TO
 SUPPORT ITS EXCEPTION.
 
    THE UNION DOES NOT DEMONSTRATE IN ITS PETITION IN WHAT MANNER THE
 ARBITRATOR'S AWARD IS CONTRARY TO THE CITED REGULATION.  THE UNION HAS
 NOT SHOWN THAT THE ARBITRATOR'S REFERENCE TO THE WORDS "WELL-QUALIFIED"
 IN FPM CHAPTER 335, SECTION 4-3(C)(2), OR HIS AWARD DENYING THE
 GRIEVANCES, IN ANY MANNER VIOLATES THE FEDERAL PERSONNEL MANUAL.  IT IS
 NOTED THAT THE ARBITRATOR SPECIFICALLY FOUND, BASED ON THE EVIDENCE
 BEFORE HIM, THAT THE GRIEVANT WAS GIVEN SPECIAL CONSIDERATION FOR
 REPROMOTION.  THE ARBITRATOR ALSO SPECIFICALLY REFERRED TO THE LANGUAGE
 OF FPM CHAPTER 335, SECTION 4-3(C)(2), AND, APPLYING IT TO THE FACTS OF
 THIS CASE, NOTED THAT THE REGULATION ONLY GUARANTEES THAT A REPROMOTION
 ELIGIBLE WILL RECEIVE "SPECIAL CONSIDERATION" FOR REPROMOTION, AND THAT
 IT DOES NOT GUARANTEE ACTUAL REPROMOTION.  THEREFORE, THE UNION'S FIRST
 EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION
 2411.32 OF THE AMENDED RULES.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD IGNORES
 THE CONTRACT.  IN SUPPORT OF THIS EXCEPTION THE UNION STATES THAT THE
 PARTIES' AGREEMENT REQUIRES THAT REPROMOTION ELIGIBLES BE GIVEN SPECIAL
 CONSIDERATION BEFORE ANY OTHER METHOD IS USED TO FILL A VACANCY AND THAT
 MANAGEMENT CREATED GS-13 POSITIONS FOR FOUR DOWNGRADED EMPLOYEES IN
 VIOLATION OF THE GRIEVANT'S RIGHTS UNDER THE AGREEMENT.
 
    IN ITS SECOND EXCEPTION THE UNION IS MERELY ARGUING, AS IT DID BEFORE
 THE ARBITRATOR, THAT THE AGENCY VIOLATED THE AGREEMENT.  THUS THE UNION
 IS ATTEMPTING TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE
 AUTHORITY.  AS IN THE PRIVATE SECTOR, THIS DOES NOT CONSTITUTE A BASIS
 FOR REVIEWING AN ARBITRATION AWARD IN THE FEDERAL SECTOR.  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 (FEBRUARY 21, 1980).  THEREFORE, THIS
 EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER
 SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
 FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
 OF THE AMENDED RULES OF PROCEDURE.
 
    ISSUED, WASHINGTON, D.C., MAY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 

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