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 3 FLRA No. 90
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL
 Union
 
 and
 
 MARE ISLAND NAVAL
 SHIPYARD
 Activity
 
                                            FLRC No. 78A-42
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
 REVIEW OF THE AWARD OF ARBITRATOR WILLIAM EATON FILED WITH THE FEDERAL
 LABOR RELATIONS COUNCIL.  /1/
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER INVOLVES THE
 GRIEVANT WHO WAS INITIALLY EMPLOYED AT THE ACTIVITY UNDER A CAREER
 APPOINTMENT FOR APPROXIMATELY TEN YEARS PRIOR TO HIS VOLUNTARY
 RESIGNATION IN AUGUST 1976.  IN DECEMBER 1976 THE GRIEVANT WAS REHIRED
 UNDER A TEMPORARY APPOINTMENT THAT WAS MADE NONCOMPETITIVELY ON THE
 BASIS OF HIS ELIGIBILITY FOR REINSTATEMENT.  BECAUSE THE GRIEVANT WAS
 ELIGIBLE FOR REINSTATEMENT, THE ACTIVITY WAS AUTHORIZED TO CONVERT THE
 GRIEVANT'S TEMPORARY LIMITED APPOINTMENT TO A PERMANENT (CAREER)
 APPOINTMENT.  HOWEVER, THE ACTIVITY REFUSED TO GRANT THE GRIEVANT'S
 REQUEST FOR CONVERSION TO CAREER STATUS ALTHOUGH DURING THIS TIME OTHER
 TEMPORARY EMPLOYEES HIRED ON THE SAME BASIS AS THE GRIEVANT BUT WITH
 LESS SERVICE AT THE ACTIVITY WERE GRANTED CAREER APPOINTMENTS.  THE
 GRIEVANT REMAINED A TEMPORARY EMPLOYEE WITH THE ACTIVITY UNTIL HIS
 TEMPORARY APPOINTMENT TERMINATED.
 
    A GRIEVANCE WAS FILED AND SUBMITTED TO ARBITRATION PROTESTING THAT
 THE GRIEVANT WAS IMPROPERLY DENIED CONVERSION TO CAREER STATUS BECAUSE
 OF HIS UNION ACTIVITIES.  THE ARBITRATOR FOUND THAT THE ACTIVITY'S
 DENIAL OF THE GRIEVANT'S REQUEST FOR CONVERSION TO CAREER STATUS WAS IN
 VIOLATION OF THE PARTIES' NEGOTIATED AGREEMENT.  THE ARBITRATOR
 CONCLUDED IN THIS RESPECT THAT THE DENIAL WAS DISCRIMINATION AGAINST THE
 GRIEVANT "BECAUSE OF HIS ENGAGEMENT IN LEGITIMATE AND AUTHORIZED UNION
 ACTIVITIES." AS A REMEDY THE ARBITRATOR ORDERED THAT THE GRIEVANT BE
 CONVERTED TO PERMANENT STATUS AND BE AWARDED "PAY FOR ALL WORK LOST AS A
 RESULT OF THE EMPLOYER'S IMPROPER ACTION."
 
    AS PREVIOUSLY STATED, THE AGENCY HAD FILED A PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL.  THE
 COUNCIL HAD ACCEPTED THE AGENCY'S PETITION FOR REVIEW ON THE AGENCY'S
 EXCEPTIONS THAT THE AWARD VIOLATES LAW AND VIOLATES EXECUTIVE ORDER
 11491, AS AMENDED.  THE COUNCIL ALSO HAS GRANTED THE AGENCY'S REQUEST
 FOR A STAY OF THE AWARD PENDING DETERMINATION OF THE APPEAL.  THIS CASE
 WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY, 44 F.R. 44741, AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
 RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART
 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THIS CASE EXCEPT THAT THE
 WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD
 "COUNCIL" APPEARS IN SUCH RULES.  SECTION 2411.37(A) OF THE AMENDED
 RULES PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    IN ACCORDANCE WITH ESTABLISHED PRACTICE, THE COUNCIL HAD REQUESTED
 FROM THE CIVIL SERVICE COMMISSION ITS INTERPRETATION OF APPLICABLE LAW
 AND CIVIL SERVICE REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD
 IN THIS CASE.  THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY
 TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE MATTERS) REPLIED
 IN RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANT IN THIS CASE ALLEGED THAT THE AGENCY IMPROPERLY DENIED
 HIM CAREER STATUS
 
    BECAUSE OF HIS UNION ACTIVITIES.  THE GRIEVANT HAD BEEN EMPLOYED AT
 THE SHIPYARD UNDER A
 
    CAREER APPOINTMENT FOR APPROXIMATELY TEN YEARS PRIOR TO HIS VOLUNTARY
 RESIGNATION IN AUGUST
 
    1976.  IN DECEMBER 1976, THE GRIEVANT WAS REHIRED UNDER A TEMPORARY
 APPOINTMENT THAT WAS MADE
 
    NONCOMPETITIVELY ON THE BASIS OF THIS ELIGIBILITY FOR REINSTATEMENT.
 THE TEMPORARY
 
    APPOINTMENT WAS TERMINATED IN SEPTEMBER 1977.  DURING THE PERIOD OF
 THE GRIEVANT'S TEMPORARY
 
    APPOINTMENT, OTHER TEMPORARY EMPLOYEES WITH LESS SERVICE AT THE
 SHIPYARD (AND HIRED ON THE
 
    SAME BASIS AS THE GRIEVANT) WERE GIVEN CAREER APPOINTMENTS.
 
    THE ARBITRATOR FOUND THAT THE AGENCY'S FAILURE TO GIVE THE GRIEVANT A
 CAREER APPOINTMENT
 
    WAS BASED ON DISCRIMINATION BECAUSE OF "HIS ENGAGEMENT IN LEGITIMATE
 AND AUTHORIZED UNION
 
    ACTIVITIES." THE ARBITRATOR ORDERED THE AGENCY TO CONVERT THE
 GRIEVANT TO CAREER STATUS AS OF
 
    JULY 1, 1977, AND PAY HIM FOR ALL WORK LOST AS A RESULT OF THE
 EMPLOYER'S IMPROPER ACTION.
 
    SECTION 316.402(B)(1) OF THE FORMER CIVIL SERVICE COMMISSION'S
 REGULATIONS (5 CFR)
 
    AUTHORIZED APPOINTMENTS TO FORMER FEDERAL EMPLOYEES WHO, LIKE THE
 GRIEVANT, ARE ELIGIBLE FOR
 
    NONCOMPETITIVE REINSTATEMENT TO CAREER POSITIONS.  SECTION 4-8 OF
 CHAPTER 316 OF THE FEDERAL
 
    PERSONNEL MANUAL FURTHER AUTHORIZED AGENCIES TO CONVERT TEMPORARY
 LIMITED APPOINTMENTS BASED
 
    ON REINSTATEMENT ELIGIBILITY TO REINSTATEMENT WITHOUT TIME LIMITATION
 (I.E., CAREER
 
    APPOINTMENTS) WHEN APPROPRIATE.  WHETHER CONVERSION TO CAREER STATUS
 WOULD BE APPROPRIATE IN
 
    ANY PARTICULAR SITUATION WAS A MATTER TO BE DETERMINED BY AGENCY
 MANAGEMENT.
 
    ACCEPTANCE OF A TEMPORARY APPOINTMENT BY THE GRIEVANT DID NOT CONVEY
 TO HIM ANY ENTITLEMENT
 
    TO CONVERSION TO A PERMANENT (CAREER) APPOINTMENT AT A LATER DATE.
 PURSUANT TO CIVIL SERVICE
 
    RULE 7.1, MANAGEMENT RETAINED THE DISCRETION TO "FILL ANY POSITION IN
 THE COMPETITIVE SERVICE
 
    EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL SERVICE REGISTER OR BY
 NONCOMPETITIVE SELECTION
 
    OF A PRESENT OR FORMER FEDERAL EMPLOYEE IN ACCORDANCE WITH THE CIVIL
 SERVICE
 
    REGULATIONS." AGENCY MANAGEMENT, THEREFORE, MUST RETAIN THIS
 DISCRETION RESERVED TO IT BY
 
    CIVIL SERVICE RULE, AND CANNOT, THROUGH ITS COLLECTIVE BARGAINING
 AGREEMENT, ABROGATE THAT
 
    DISCRETION BY ANY PROVISION WHICH WOULD DIRECTLY OR INDIRECTLY GRANT
 TO AN ARBITRATOR THE
 
    AUTHORITY TO EXERCISE THIS RESERVED DISCRETION.  THEREFORE, AN
 ARBITRATOR CANNOT ORDER THAT A
 
    POSITION BE FILLED BY A SPECIFIC EMPLOYEE, THROUGH REINSTATEMENT OR
 THROUGH ANY OTHER
 
    MEANS.  ACCORDINGLY, THE ARBITRATOR'S ORDER TO CONVERT THE EMPLOYEE
 AS OF JULY 1, 1977,
 
    THEREFORE, IS INCONSISTENT WITH APPLICABLE CIVIL SERVICE RULES,
 REGULATIONS, AND INSTRUCTIONS.
 
    FURTHERMORE, IN REFERENCE TO THE ARBITRATOR'S AWARD OF BACK PAY, WE
 WISH TO POINT OUT THAT
 
    THE COMPTROLLER GENERAL RULED ON MARCH 19, 1975, THAT THE BACK PAY
 ACT OF 1966, 5 U.S.C. 5596,
 
    AS APPLICABLE ONLY TO FEDERAL EMPLOYEES AND DOES NOT APPLY TO
 UNSUCCESSFUL APPLICANTS FOR
 
    EMPLOYMENT, LIKE THE GRIEVANT IN THIS CASE.  SPECIFICALLY, THE
 COMPTROLLER GENERAL STATED AS
 
    FOLLOWS IN DECISION NO. B-180010 (MARCH 19, 1975) WHICH RELATED TO
 THE AVAILABILITY OF
 
    MAKE-WHOLE REMEDIES TO THE ASSISTANT SECRETARY OF LABOR (A/SLMR) AS
 REMEDIES FOR IMPROPER
 
    PERSONNEL ACTIONS CAUSED BY UNFAIR LABOR PRACTICES:
 
    "REGARDING AGENCY DISCRIMINATION IN HIRING WE POINT OUT THAT THE BACK
 PAY ACT, 5
 
    U.S.C. 5596, SUPRA, IS APPOSITE ONLY TO FEDERAL EMPLOYEES AND DOES
 NOT PROVIDE A REMEDY FOR
 
    UNSUCCESSFUL APPLICANTS FOR FEDERAL EMPLOYMENT.  ALSO, THE AUTHORITY
 TO APPOINT IS IN THE
 
    ADMINISTRATIVE AGENCIES UNDER REGULATIONS PRESCRIBED BY THE CIVIL
 SERVICE COMMISSION.  IN VIEW
 
    OF THIS AND SINCE THERE IS NOTHING IN ANY LEGISLATION OF WHICH WE ARE
 AWARE WHICH AUTHORIZES
 
    THE A/SLMR TO MAKE APPOINTMENTS TO CIVIL SERVICE POSITIONS, IT IS OUR
 OPINION THAT HE MAY NOT
 
    DIRECT AN APPLICANT'S APPOINTMENT EVEN THOUGH HE IS AUTHORIZED TO
 TAKE AFFIRMATIVE ACTION IN
 
    CASES INVOLVING DISCRIMINATION IN HIRING AS A RESULT OF AN UNFAIR
 LABOR PRACTICE."
 
    WE BELIEVE THAT THE ARBITRATOR'S AUTHORITY TO ORDER THE GRIEVANT
 RETROACTIVELY APPOINTED TO
 
    A CAREER POSITION WITH APPROPRIATE BACK PAY WOULD BE LIMITED IN A
 SIMILAR MANNER.
 
    BASED ON THE PRECEDING ANALYSIS, WE CONCLUDE THAT THE ARBITRATOR'S
 AWARD CONFLICTS WITH
 
    APPLICABLE CIVIL SERVICE LAW, REGULATIONS AND INSTRUCTIONS, AND
 THEREFORE CANNOT BE
 
    IMPLEMENTED.
 
    BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, THE AUTHORITY FINDS THAT THE AWARD OF THE ARBITRATOR
 (ENTITLED DECISION AND CONSTITUTING FIVE SEPARATELY NUMBERED PARAGRAPHS)
 VIOLATES APPLICABLE LAW AND CIVIL SERVICE REGULATIONS AND INSTRUCTIONS
 AND MUST THEREFORE BE SET ASIDE.  /2/ ACCORDINGLY, PURSUANT TO SECTION
 2411.37(B) OF THE AMENDED RULES, THE ARBITRATOR'S AWARD IS SET ASIDE IN
 ITS ENTIRETY.  /3/
 
    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/ THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, IN MATTERS
 SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION
 304 OF REORGANIZATION PLAN NO. 2 OF 1978, 43 F.R. 36040, WHICH TRANSFER
 OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.5 OF THE AUTHORITY'S
 TRANSITION RULES AND REGULATIONS, 44 F.R. 44741.  THE AUTHORITY
 CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS
 PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7135(B)).
 
    /2/ IN VIEW OF THIS DECISION, IT IS UNNECESSARY TO ADDRESS THE OTHER
 EXCEPTION ON WHICH THE AGENCY'S PETITION FOR REVIEW WAS ACCEPTED BY THE
 COUNCIL.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

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