[ v12 p257 ]
12:0257(59)AR
The decision of the Authority follows:
12 FLRA No. 59
SOCIAL AND REHABILITATION
SERVICE, DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 41, AFL-CIO
Union
Case No. O-AR-120
DECISION
This matter is before the Authority on exceptions to an award of
Arbitrator Marcel Mallet-Prevost 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/
The Union filed an opposition.
The dispute in this matter concerns essentially whether the Agency
complied with a previous award of the Arbitrator. In the original award
the Arbitrator determined that the Agency had violated its merit
promotion plan and the collective bargaining agreement by considering
and selecting candidates from outside the Agency for two computer
analyst positions. Accordingly, the Arbitrator ordered the Agency to
vacate the two positions; to run the selection process again, limiting
the choices to the four highly qualified candidates from the Agency;
and to give backpay to the two employees selected. The Agency filed a
petition for review of the award with the Federal Labor Relations
Council, and the Council sought from the Civil Service Commission an
interpretation of applicable legal requirements and Commission
regulations (including those of governing awards of backpay under the
Back Pay Act, 5 U.S.C. 5596) as they pertained to the questions raised
by the Arbitrator's award. The Commission advised that the Arbitrator's
award accorded with Commission regulations and practice and accorded
with decisions of the Comptroller General authorizing backpay. Based on
the Commission's advice, the Council sustained the award. Social and
Rehabilitation Service, Department of Health, Education, and Welfare and
American Federation of Government Employees, Local 41, AFL-CIO, 4 FLRC
296 (1976). Thereafter, the arbitration proceeding was reopened to
consider whether the Agency had complied with the original award. The
Arbitrator determined that the Agency had not complied, and as a remedy
awarded as follows:
Health Care Financing Administration and the Department of
Health, Education, and Welfare shall:
1. Make a selection of 2 of the 4 employees named in the
original Award and designate them as the employees who most likely
would have been selected in a re-run.
If an actual re-run is not feasible at this time, the Agency
can certainly make a reasonably fair selection based on available
employment records.
2. The 2 selected employees shall receive backpay compensation
in the form of backpay, pension payments and other financial
benefits - the basis being the difference between what they
received in their then current jobs and what they would have
received in the posted positions. The back payment period shall
run from the date Mandell and Couchoud were appointed to the
posted jobs and the date the 2 employees in question are now
selected or the date they left Civil Service employment, whichever
comes first.
3. The original Contract here involved provides (Art. 19, Sec.
E) that the parties will share equally the Arbitrator's fee and
expenses; and that the Employer (Agency) will bear the entire
cost of the transcript. Since the present proceeding is, in
effect, a continuation of the initial proceeding, I find that this
Contract provision applies hereto.
In its first exception to this award, the Agency contends that the
award is contrary to E.O. 11491, the Statute, and the rules and
regulations of the Authority and is in excess of the Arbitrator's
authority because the Health Care Financing Administration (HCFA) and
the Department of Health and Human Services (HHS) are not successors to
the Social and Rehabilitation Service (SRS), the abolished agency that
failed to comply with the original award. This contention is misplaced.
Section 7122(a) of the Statute empowers the Authority to review an
exception to an arbitration award to determine if the exception
establishes that the award is deficient on one of the bases set forth in
section 7122(a)(1) and (2). Thus, section 7122(a) only enables the
Authority to resolve an exception that addresses the merits of an
arbitration award. In the instant case, instead of asserting in what
manner the award is deficient under section 7122(a), the Agency's
exception relates solely to whether compliance with the original award
can properly be required of HCFA or HHS and the Authority has repeatedly
held that the unfair labor practice procedures of the Statute are the
appropriate procedures for resolution of disputes concerning compliance
with and enforcement of arbitration awards. /2/ See, e.g.,
Headquarters, U.S. Army Communications Command, et al., Fort Huachuca,
Arizona and American Federation of Government Employees, Local 1662, 2
FLRA 785 (1980); January 15, 1982 Order Denying ; Petition for
Enforcement of Council of District Office Locals, American Federation of
Government Employees, San Francisco Region, AFL-CIO and Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 5 FLRA No. 100 (1981). Consequently, this
exception provides no basis for finding the award deficient.
In its second exception the Agency contends that the Arbitrator
exceeded his authority by considering the reconstruction of the original
selection action and the reassignments of the incumbents because these
were not questions properly before him. However, both the
reconstruction and the reassignments were specifically raised by the
Agency itself as support for its position before the Arbitrator that
there had been compliance with the original award. Thus, the Agency has
not established that the Arbitrator exceeded his authority by
considering such contentions in the course of resolving the submitted
issue of whether the Agency had complied with the original award. See,
e.g., Social Security Administration and American Federation of
Government Employees, AFL-CIO, Local No. 1923, 5 FLRA No. 33 (1981);
Federal Aviation Science and Technological Association, Local No. 291,
Fort Worth, Texas and Federal Aviation Administration, Fort Worth Air
Route Traffic Control Center, Airway Facilities Sector, Southwest
Region, Fort Worth, Texas, 3 FLRA 544, 548 (1980).
In its third exception the Agency contends that the Arbitrator's
findings as to the reconstruction of the selection action and the
reassignments of the incumbents are contrary to Federal Personnel Manual
(FPM) chapter 335. However, this exception does not address, and thus
does not demonstrate, in what manner the award of the Arbitrator is
contrary to FPM chapter 335. Instead, the Agency's contentions
constitute nothing more than disagreement with the findings of fact made
by the Arbitrator and with the reasoning and conclusions employed by the
Arbitrator to resolve the merits of the compliance issue, and it is well
established that such contentions provide no basis for finding an award
deficient. E.g., Department of the Air Force, McGuire Air Force Base
and American Federation of Government Employees, Local No. 1778, 6 FLRA
No. 50 (1981); American Federation of Government Employees, National
Border Patrol Council and U.S. Immigration and Naturalization Service,
Southern Region, Dallas, Texas, 3 FLRA 540 (1980).
In its fourth exception the Agency contends that the collective
bargaining agreement provision involved in the original award is
contrary to E.O. 11491, Civil Service Rule 7.1, 5 CFR 335.103, and FPM
chapter 335. However, the Agency again does not address in this
exception, and thus again does not demonstrate, in what manner the award
is contrary to the Order and/or the cited civil service rules and
regulations. Rather, this exception merely constitutes an attempt to
relitigate the original award which was specifically sustained on review
by the Council, and consequently this exception provides no basis for
finding the present award deficient. See, e.g., American Federation of
Government Employees, Local 2206 and Department of Health and Human
Services, Social Security Administration, Southeastern Program Service
Center, 6 FLRA No. 103 (1981).
In its fifth exception the Agency contends that the award is contrary
to the Back Pay Act, 5 U.S.C. 5596, because the issue of backpay was
rendered moot by the decision of the Agency not to fill the positions in
dispute after reassigning the incumbents. However, this exception again
is premised merely on the Agency's contention that it complied with the
original award and therefore constitutes nothing more than disagreement
with the Arbitrator's finding that there had been no compliance with the
original award. Consequently, this exception provides no basis for
finding the award deficient. See, e.g., U.S. Department of Labor and
American Federation of Government Employees, Local 644, 5 FLRA No. 11
(1981).
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., June 24, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency filed timely exceptions to the Arbitrator's award.
After the period for filing exceptions had expired, the Agency filed a
request to amend the exceptions and enclosed the amended exceptions.
The Union opposed the Agency's request. Because the proposed amendment
would have added an additional ground on which review of the award was
requested, the request is denied and only the grounds stated in the
original exceptions have been considered by the Authority.
/2/ For this reason the petition for enforcement of the award filed
by the Union must be, and hereby is, denied.