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 6 FLRA No. 26
 
 U.S. NAVAL STATION,
 MAYPORT, FLORIDA
 Activity
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 LOCAL 2010, AFL-CIO
 Union
 
                                            Case No. O-AR-44
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR ROBERT T. AMIS FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
 CONCERNED A PROMOTION TO A FIRST LEVEL SUPERVISORY POSITION OF
 AUTOMOTIVE MECHANIC FOREMAN.  THE DISPUTE AROSE AFTER THE PARTIES'
 NEGOTIATED AGREEMENT HAD EXPIRED.  WHEN THE AGREEMENT EXPIRED IN JULY
 1978, THE ACTIVITY TOOK TWO ACTIONS.  FIRST, INSTRUCTIONS WERE ISSUED TO
 ALL SUPERVISORS WHICH PROVIDED IN PART:
 
    SUPERVISORS ARE REMINDED THAT UPON THE EXPIRATION OF A NEGOTIATED
 AGREEMENT, PERSONNEL
 
    POLICIES, PRACTICES AND WORKING CONDITIONS AFFECTING UNIT EMPLOYEES
 WHETHER OR NOT CONTAINED
 
    IN THE NEGOTIATED AGREEMENT CONTINUE AS ESTABLISHED AND MAY NOT BE
 UNILATERALLY CHANGED EXCEPT
 
    UNDER SPECIAL CIRCUMSTANCES.
 
    SECOND, THE ACTIVITY'S COMMANDING OFFICER NOTIFIED THE PRESIDENT OF
 THE UNION THAT MANAGEMENT WOULD NOT MAINTAIN THE PROVISIONS OF ARTICLE
 XXIII OF THE EXPIRED AGREEMENT WITH RESPECT TO FIRST LEVEL SUPERVISORY
 POSITIONS.  ARTICLE XXIII, SECTION 8 OF THE EXPIRED AGREEMENT HAD
 PERTINENTLY PROVIDED:
 
    A.  THE EMPLOYER AGREES TO MAKE TEMPORARY PROMOTIONS OF AN EMPLOYEE
 WHO IS ASSIGNED TO
 
    PERFORM HIGHER LEVEL WORK WITHIN HIS/HER OWN ORGANIZATION WHEN THERE
 EXISTS A NEED FOR SUCH
 
    WORK TO BE PERFORMED FOR A PERIOD OF MORE THAN TWO (2) WEEKS.
 
    B.  IT IS AGREED THAT THE EMPLOYER MAY MAKE A TEMPORARY PROMOTION
 LIMITED TO SIXTY (60)
 
    DAYS OR LESS WHEN IT IS NECESSARY TO FILL A POSITION WITHOUT DELAY.
 WHEN IT IS DETERMINED
 
    THAT THERE EXISTS A POSSIBILITY THAT THE TEMPORARY PROMOTION TO A
 HIGHER LEVEL POSITION WILL
 
    BE FOR A PERIOD OF MORE THAN SIXTY (60) DAYS THE EMPLOYER AND THE
 UNION WILL MEET TO DETERMINE
 
    IF THE TEMPORARY PROMOTION SHOULD BE MADE UNDER MERIT PROMOTION
 PROCEDURES.
 
    C.  IN ALL CASES WHERE EXPERIENCE RESULTING FROM PERFORMING HIGHER
 LEVEL WORK ASSIGNMENT OF
 
    SIXTY (60) DAYS OR MORE WOULD PROVIDE QUALIFYING EXPERIENCE FOR A
 LATER PROMOTION WITHIN THE
 
    ACTIVITY, COMPETITIVE PROCEDURES WILL BE USED.  REPETITIVE TEMPORARY
 ASSIGNMENTS TO HIGHER
 
    LEVEL DUTY PERFORMANCE OF LESS THAN SIXTY DAYS WILL NOT BE GIVEN TO
 THE SAME EMPLOYEE IN SUCH
 
    A MANNER AS TO CIRCUMVENT COMPETITIVE REQUIREMENTS OR MERIT
 PRINCIPLES BUT WILL BE ROTATED TO
 
    THE MAXIMUM EXTENT AMONG BEST QUALIFIED EMPLOYEES OF THE IMMEDIATE
 ORGANIZATION WHERE THE
 
    TEMPORARY VACANCY EXISTS.
 
    THEREAFTER, IN AUGUST 1978, THE VACANCY OCCURRED, IN THE FOREMAN
 POSITION AND THE ACTIVITY TEMPORARILY PROMOTED AN EMPLOYEE TO THE
 POSITION.  A PERMANENT VACANCY IN THE POSITION WAS ANNOUNCED IN OCTOBER
 1978.  FOUR OF SEVEN QUALIFIED APPLICANTS FOR THE POSITION WERE RATED
 HIGHLY QUALIFIED INCLUDING THE EMPLOYEE TEMPORARILY PROMOTED TO THE
 POSITION AND THE GRIEVANT, WHO RECEIVED THE HIGHEST RATING.
 
    BY THIS TIME THE LENGTH OF THE TEMPORARY PROMOTION HAD EXCEEDED 60
 DAYS.  THE UNION PROTESTED THE CONTINUATION OF THAT TEMPORARY PROMOTION
 AND REQUESTED THAT OTHER QUALIFIED EMPLOYEES BE ROTATED INTO THE
 POSITION IN ACCORDANCE WITH "ESTABLISHED PRACTICES." THE UNION
 APPARENTLY VIEWED ARTICLE XXIII, SECTION 8 OF THE EXPIRED AGREEMENT,
 PARTICULARLY THE ROTATION PROVISION OF SUBSECTION C, AS CONSTITUTING
 ESTABLISHED PRACTICES THAT WERE TO BE CONTINUED.  THE ACTIVITY DENIED
 THE REQUEST.  THE ACTIVITY APPARENTLY VIEWED THE UNION'S REQUEST AS
 BASED ON PROVISIONS OF ARTICLE XXIII, SECTION 8 THAT HAD NOT BEEN
 MAINTAINED BECAUSE THE FOREMAN POSITION WAS A FIRST LEVEL SUPERVISORY
 POSITION.
 
    IN NOVEMBER 1978, THE EMPLOYEE WHO HAD BEEN TEMPORARILY PROMOTED TO
 THE POSITION WAS SELECTED FOR THE PERMANENT POSITION.  THE GRIEVANT
 FILED A GRIEVANCE PROTESTING THAT SELECTION, AND THE GRIEVANCE WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR FOUND THAT THE ACTIVITY VIOLATED "THE PARTIES' OWN 60
 DAY RULE" WHEN IT REFUSED TO ROTATE THE ENCUMBENCY OF THE FOREMAN
 POSITION AT THE EXPIRATION OF 60 DAYS.  THE ARBITRATOR WAS APPARENTLY
 REFERRING TO THE PROVISION OF ARTICLE XXIII, SECTION 8C THAT SUCH
 ASSIGNMENTS WOULD BE ROTATED AFTER 60 DAYS.  THE ARBITRATOR RULED THAT
 THIS REFUSAL BY THE ACTIVITY WAS CONTRARY TO THE INSTRUCTIONS THAT
 ESTABLISHED PRACTICES WERE TO BE CONTINUED.  HE NOTED THAT WITH RESPECT
 TO OTHER FIRST LEVEL SUPERVISORY POSITIONS SUCH ESTABLISHED PRACTICES
 WERE FOLLOWED.  THE ARBITRATOR CONCLUDED THAT AS A RESULT OF THIS
 VIOLATION THE "GRIEVANT WAS DENIED THE OPPORTUNITY TO DEMONSTRATE HIS
 ABILITY TO PERFORM THE JOB." ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR
 SUSTAINED THE GRIEVANCE AND ORDERED:
 
    GRIEVANT, AS THE CANDIDATE WITH THE HIGHEST NUMERICAL RATING, SHALL
 BE GIVEN AN OPPORTUNITY
 
    TO PERFORM IN THE JOB OF AUTOMOTIVE MECHANIC FOREMAN FOR A PERIOD OF
 NOT LESS THAN THE 33 DAYS
 
    WHICH WOULD HAVE BEEN ROTATED BUT FOR THE FAILURE OF MANAGEMENT TO
 FOLLOW ESTABLISHED
 
    PROCEDURES.  UPON COMPLETION OF THIS PERIOD, THE PROMOTION ACTION FOR
 THE POSITION OF
 
    AUTOMOTIVE MECHANIC FOREMAN SHALL BE RECONSTITUTED.
 
    THE AGENCY HAS FILED EXCEPTIONS 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 RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE UNION DID NOT FILE AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD IS CONTRARY TO LAW.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY
 PRINCIPALLY ARGUES THAT THE AWARD IS CONTRARY TO THE DECISION OF THE
 FEDERAL LABOR RELATIONS COUNCIL IN INTERNAL REVENUE SERVICE, OGDEN
 SERVICE CENTER WHICH SET FORTH THE APPLICABLE PRINCIPLES RESPECTING THE
 RIGHTS AND OBLIGATIONS OF THE PARTIES AFTER THE EXPIRATION OF THEIR
 AGREEMENT IN JULY 1978 AND AT THE TIME THIS GRIEVANCE AROSE AT THE END
 OF 1978.  /3/ ON THIS BASIS THE AGENCY CLAIMS THAT THE ACTIVITY PROPERLY
 REFUSED TO ROTATE THE ASSIGNMENT TO THE FOREMAN POSITION AND THEREFORE
 THE ARBITRATOR'S AWARD, ORDERING THAT THE GRIEVANT BE GIVEN AN
 OPPORTUNITY TO PERFORM IN THE FOREMAN POSITION AND ORDERING THAT THE
 PROMOTION ACTION FOR THE POSITION BE RECONSTITUTED, IS DEFICIENT.
 
    PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY MAY FIND
 AN AWARD DEFICIENT ON THE GROUND THAT THE AWARD IS CONTRARY TO LAW.  ON
 THE BASIS OF THE AGENCY'S EXCEPTION AND FOR THE REASONS THAT FOLLOW, THE
 AUTHORITY FINDS THAT THE ARBITRATOR'S AWARD IS DEFICIENT.
 
    AS WAS NOTED, THE PARTIES' AGREEMENT EXPIRED IN JULY 1978 AND THE
 ACTIVITY ISSUED INSTRUCTIONS THAT EXISTING PERSONNEL POLICIES AND
 PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WOULD CONTINUE AS
 ESTABLISHED.  AT THE SAME TIME, AND BEFORE THE GRIEVANCE IN THIS CASE
 AROSE, THE ACTIVITY ALSO ADVISED THAT THE AGREEMENT PROVISIONS OF
 ARTICLE XXIII, SECTION 8 WOULD NOT BE MAINTAINED WITH RESPECT TO FIRST
 LINE SUPERVISORY POSITIONS.  THE AGENCY HAS MAINTAINED THAT BOTH OF
 THESE ACTIONS BY THE ACTIVITY WERE FULLY CONSISTENT WITH IRS, OGDEN
 SERVICE CENTER, SUPRA.  IN THAT CASE THE FEDERAL LABOR RELATIONS COUNCIL
 SET FORTH THE RIGHTS AND OBLIGATIONS OF PARTIES AFTER THE EXPIRATION OR
 TERMINATION OF THEIR NEGOTIATED AGREEMENT.  THE COUNCIL HELD THAT
 EXISTING PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED AGREEMENT,
 CONTINUE AS ESTABLISHED AFTER THE EXPIRATION OF A NEGOTIATED AGREEMENT
 UNLESS MODIFIED OR TERMINATED IN A MANNER CONSISTENT WITH EXECUTIVE
 ORDER 11491, AS AMENDED.  THUS, IT WAS PURSUANT TO THIS OBLIGATION THAT
 THE ACTIVITY ISSUED INSTRUCTIONS MAINTAINING THESE ESTABLISHED PRACTICES
 AFTER THE AGREEMENT HAD EXPIRED.
 
    HOWEVER, IN THAT CASE THE COUNCIL ALSO HELD:
 
    (A)GENCY MANAGEMENT, UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT,
 RETAINS THE RIGHT TO
 
    UNILATERALLY CHANGE PROVISIONS CONTAINED THEREIN RELATING TO
 "PERMISSIVE" SUBJECTS OF
 
    BARGAINING . . . AND EITHER PARTY MAY CHANGE MATTERS WHICH ARE
 OUTSIDE THE SCOPE OF SUCH
 
    OBLIGATION UNDER SECTION 11(A) OF THE ORDER.  6 FLRC AT 319.
 
    THE AGENCY HAS ARGUED THAT IT WAS PURSUANT TO THIS RIGHT TO "CHANGE
 MATTERS WHICH ARE OUTSIDE THE SCOPE OF SUCH OBLIGATION UNDER SECTION
 11(A) OF THE ORDER" THAT THE ACTIVITY REFUSED TO MAINTAIN THE EXPIRED
 AGREEMENT PROVISIONS OF ARTICLE XXIII, SECTION 8 WITH RESPECT TO FIRST
 LINE SUPERVISORY POSITIONS INCLUDING THE FOREMAN POSITION IN THIS CASE.
 THE AGENCY'S POSITION IS THAT THESE PROVISIONS AS THEY PERTAINED TO
 SUPERVISORY POSITIONS WERE NOT WITHIN THE OBLIGATION TO BARGAIN UNDER
 E.O. 11491, AS SET FORTH IN SECTION 11(A), AND THEREFORE WERE MATTERS
 THAT, IN ACCORDANCE WITH IRS, OGDEN SERVICE CENTER, THE ACTIVITY
 RIGHTFULLY REFUSED TO MAINTAIN RATHER THAN BEING OBLIGATED TO CONTINUE
 AS ESTABLISHED PRACTICES.  THUS, THE ESSENCE OF THE AGENCY'S CONTENTION
 THAT THE AWARD IS DEFICIENT AS CONTRARY TO LAW IS THAT THE AWARD
 CONSTITUTES AN ENFORCEMENT OF THE PROVISIONS OF ARTICLE XXIII, SECTION 8
 OF THE EXPIRED AGREEMENT WITH RESPECT TO A FIRST LINE SUPERVISORY
 POSITION DESPITE THOSE PROVISIONS HAVING BEEN PROPERLY TERMINATED WITH
 RESPECT TO FIRST LINE SUPERVISORY POSITIONS BEFORE THE GRIEVANCE IN THIS
 CASE AROSE.
 
    THE AUTHORITY AGREES.  IT WAS WELL ESTABLISHED AT THE TIME THE
 PARTIES' AGREEMENT EXPIRED THAT A PROVISION PERTAINING TO THE ASSIGNMENT
 OF AN EMPLOYEE TO A HIGHER GRADE POSITION OR THE ROTATION OF SUCH
 ASSIGNMENT AMONG EMPLOYEES WAS OUTSIDE AN AGENCY'S OBLIGATION TO BARGAIN
 UNDER SECTION 11(A) OF E.O. 11491 TO THE EXTENT IT APPLIED TO
 SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT.  /4/ THUS, THE
 AUTHORITY FINDS THAT THE ACTIVITY HAD THE RIGHT, IN ACCORDANCE WITH IRS,
 OGDEN SERVICE CENTER, TO REFUSE TO MAINTAIN THE PROVISIONS OF ARTICLE
 XXIII, SECTION 8 WITH RESPECT TO FIRST LINE SUPERVISORY POSITIONS
 INCLUDING THE FOREMAN POSITION IN THIS CASE.
 
    HOWEVER, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE ACTIVITY
 VIOLATED "THE PARTIES' 60 DAY RULE" WHEN IT REFUSED TO ROTATE THE
 ASSIGNMENT TO THE FOREMAN POSITION AFTER 60 DAYS.  HE RULED THAT THIS
 REFUSAL WAS CONTRARY TO THE ACTIVITY'S OWN INSTRUCTIONS THAT
 "ESTABLISHED PRACTICES" WERE TO BE MAINTAINED.  IT WAS ON THIS BASIS
 ALONE THAT THE ARBITRATOR CONCLUDED THAT THE GRIEVANT WAS IMPROPERLY
 DENIED THE OPPORTUNITY TO PERFORM IN THE FOREMAN POSITION.  THUS, THE
 ARBITRATOR HAS ESSENTIALLY ENFORCED IN HIS AWARD ARTICLE XXIII, SECTION
 8C OF THE EXPIRED AGREEMENT BECAUSE IT CONSTITUTED WHAT THE ARBITRATOR
 TERMED "THE PARTIES' 60 DAY RULE."
 
    BECAUSE OF THE PRINCIPLES SET FORTH IN IRS, OGDEN SERVICE CENTER
 RELATING TO THE RIGHTS OF THE PARTIES AFTER THE EXPIRATION OF THEIR
 AGREEMENT, THE ARBITRATOR'S AWARD IS DEFICIENT AND CANNOT BE SUSTAINED.
 CONSISTENT WITH IRS, OGDEN SERVICE CENTER, ARTICLE XXIII, SECTION 8C OF
 THE EXPIRED AGREEMENT CONSTITUTING "THE PARTIES' 60 DAY RULE" WAS
 PROPERLY TERMINATED AND THEREAFTER NO LONGER CONSTITUTED "ESTABLISHED
 PRACTICES" THAT COULD BE PROPERLY ENFORCED OR THE FAILURE WITH WHICH TO
 COMPLY PROPERLY REMEDIED BY THE ARBITRATOR IN HIS AWARD.  IN ADDITION,
 ALTHOUGH THE ARBITRATOR NOTED THAT WITH RESPECT TO OTHER FIRST LEVEL
 SUPERVISORY POSITIONS SUCH "ESTABLISHED PRACTICES" WERE FOLLOWED, THE
 AUTHORITY FINDS THAT THIS OBSERVATION FAILS TO CONSTITUTE THE CLEAR AND
 UNMISTAKABLE WAIVER NECESSARY TO DENY THE ACTIVITY ITS RIGHT TO REFUSE
 TO ROTATE THE ASSIGNMENT OR DETAIL OF EMPLOYEES TO THE FOREMAN POSITION
 AFTER THE AGREEMENT EXPIRED.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD
 IS SET ASIDE.  /5/
 
    ISSUED, WASHINGTON, D.C., JUNE 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /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.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL., A/SLMR
 NO. 806 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 BROOKHAVEN SERVICE CENTER, A/SLMR NO. 859, 6 FLRC 310 (FLRC NOS. 77A-40
 AND 77A-92 (MAR. 17, 1978), REPORT NO. 147).  ALTHOUGH THIS EXCEPTION
 WAS FILED UNDER THE STATUTE, THE EXPIRATION OF THE COLLECTIVE BARGAINING
 AGREEMENT, THE ACTIVITY'S NOTICE THAT CERTAIN PROVISIONS THEREIN WOULD
 NOT BE MAINTAINED, THE ACTIVITY'S ACTIONS WHICH GAVE RISE TO THE
 GRIEVANCE, AND THE FILING OF THE GRIEVANCE ALL OCCURRED IN 1978.  THUS,
 THE LAW APPLICABLE TO THIS CASE IS THAT WHICH EXISTED AT THE TIME OF THE
 ACTIVITY'S ACTIONS IN 1978.
 
    /4/ SEE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
 WORKERS, LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR
 REWORK FACILITY, CHERRY POINT, NORTH CAROLINA, 6 FLRC 253 (FLRC NO.
 77A-28 (FEB. 28, 1978), REPORT NO. 145).
 
    /5/ IN VIEW OF THIS DECISION, IT IS NOT NECESSARY THAT THE AUTHORITY
 ADDRESS THE AGENCY'S OTHER EXCEPTION TO THE AWARD. 
 
 
 

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