---

29 FLRA NO. 105

ASSOCIATION OF CIVILIAN
TECHNICIANS

     Union

     and

PENNSYLVANIA NATIONAL
GUARD

     Agency

Case No. 0-AR-1298

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. 1 We deny the Agency's exceptions.

II. Background and Arbitrator's Award

A grievance was filed by four civilian technicians and submitted to arbitration. The issue concerned the arbitrability and the merits of whether the Agency violated the parties' collective bargaining agreement and pertinent agency regulations when it failed to post the position of aircraft pneudraulic system mechanic and filled it with an Active Guard/Reserve (AGR) status employee. The Arbitrator determined that the dispute was arbitrable and that the Agency violated the collective bargaining agreement and agency regulations by failing to post the position in question. Accordingly, as his award, he sustained the grievance and directed that the position should be posted in accordance with the procedure set forth in the collective bargaining agreement and agency regulation.

III. First Exception

A. Contentions

The Agency contends that the Arbitrator exceeded his statutory authority by deciding that the disputed position was part of the bargaining unit and was required to be posted in accordance with the merit promotion procedure of the collective bargaining agreement. The Agency maintains that the Arbitrator decided the question of the bargaining-unit status of the disputed position which under section 7105(a)(2) can only be decided by the Authority.

B. Analysis and Conclusions

Where the bargaining-unit status of a position or individual is a collateral issue to a grievance otherwise properly brought under the negotiated grievance procedure, an arbitrator is not prohibited by section 7105 from addressing the issue. National Archives and Records Service General Services Administration and Local 2578, American Federation of Government Employees, 9 FLRA 381, 383 (1982). In addition, the Authority indicated in American Federation of Government Employees AFL-CIO and Equal Employment Opportunity Commission 15 FLRA 283 (1984) that in determining whether a negotiated merit promotion plan encompassed only bargaining-unit positions or extended to supervisory positions, the arbitrator was interpreting and applying the collective bargaining agreement in resolving whether the agency had met its negotiated obligations. Thus, we find that in determining that the disputed position was encompassed by the negotiated merit promotion plan, the Arbitrator was resolving an issue collateral to the grievance properly brought under the negotiated grievance procedure of whether the position should have been posted. Accordingly, this exception provides no basis for finding the award deficient.

IV. Second Exception

A. Contentions

The Agency contends that the award violates section 7106(a)(2)(A) of the Statute. Specifically, the Agency maintains the Arbitrator violated management's right to determine the skills and qualifications necessary for the disputed position by ruling on the adequacy of the skills and qualifications of the person selected for the position by management.

B. Analysis and Conclusions

We find that the Agency has misinterpreted the award. In our view, the Arbitrator's award simply requires the Agency to comply with the procedure in the collective bargaining agreement applicable to filling positions in the bargaining unit. Although the Arbitrator commented on the qualifications of the selected employee in response to an argument of the Agency, his award contains no qualification determination as alleged by the Agency. Consequently, this exception provides no basis for finding the award deficient.

V. Remaining Exceptions

A. Contentions

In its remaining exceptions the Agency contends the award conflicts with management's right to determine its organization under section 7106(a)(1) and management's right under section 7106(a)(2)(C) of the Statute in filling positions to select from any appropriate source.

B. Analysis and Conclusions

We conclude that the award in no manner interferes with the rights of management under section 7106(a) of the Statute. Like the arbitrator in EEOC, 15 FLRA 283, the Arbitrator in this case has merely found that the parties have negotiated a merit promotion plan which encompasses the position in dispute and has appropriately directed the Agency to meet its negotiated obligations, including the posting of the vacancy. Contrary to the Agency's exceptions, as indicated in National Treasury Employees Union, Chapter 55 and Internal Revenue Service, Columbia District, Columbia, South Carolina, 15 FLRA 820, 823 (1984) (Proposals 5 and 6), such enforcement of the collective bargaining agreement preserves the discretion inherent in management's rights to assign employees, assign work, and to make selections under section 7106(a)(2)(C). We similarly find, contrary to the arguments of the Agency, that the award preserves management's discretion to establish its organizational structure. Consequently, these exceptions provide no basis for finding the award deficient.

VI. Decision

Accordingly, the Agency's exceptions are denied.

Issued, Washington, D.C., October 30, 1987.

Jerry L. Calhoun,         Chairman

Henry B. Frazier,         Member

Jean McKee,               Member

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: On May 22, 1987, we rescinded our Order dismissing the Agency's exceptions as untimely filed and we reopened the case for further processing. 27 FLRA No. 16.

---