National Aeronautics and Space Administration (Agency) and American Federation of Government Employees, Local 2284 (Union) 



[ v03 p239 ]
03:0239(35)AR
The decision of the Authority follows:


 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