[ v34 p691 ]
34:0691(119)AR
The decision of the Authority follows:
34 FLRA No. 119
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
ADJUTANT GENERAL
STATE OF OKLAHOMA, AIR NATIONAL GUARD
TULSA, OKLAHOMA
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R8-17
0-AR-1671
DECISION
February 1, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes. The National Association of Government Employees, Local R8-17 (the Union) filed a grievance claiming that a vacancy announcement did not comply with applicable regulations and the parties' collective bargaining agreement. The Arbitrator ruled that the vacancy announcement complied with applicable regulations and the provisions of the collective bargaining agreement. Accordingly, he denied the grievance.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The National Guard Bureau (the Agency) filed an opposition to the Union's exceptions on behalf of the Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma (the Activity).
For the reasons stated below, we conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in the Statute. Accordingly, we will deny the Union's exceptions.
II. Background
In January 1988, the GS-9 production controller in functional area 2121 (FA 2121) at the Activity agreed to accept a voluntary downgrade to his former position of GS-8 production controller in FA 2121. On January 13, 1988, a classification action was initiated to reduce the employee from the military grade of E-7 to E-6.
On February 1, 1988, the vacancy for the GS-9 production controller position was announced. The announcement stated that military positions compatible with the GS-9 production controller position were those in grades E-4 through E-6. The area of consideration for the announcement included all employees currently employed in FA 2121. Five employees were employed as GS-8 production controllers in FA 2121 in addition to the employee who had been downgraded.
Two GS-8 employees applied for the position and one was selected. At the time of the selection, the former GS-9 employee had not yet been officially reduced in military grade from E-7 to E-6. Consequently, the selection resulted in "grade inversion" because the selected employee in her civilian capacity (GS-9) would be supervising an employee of a higher military grade (E-7). Grade inversion is not permitted under Agency regulations.
On March 15, 1988, the Activity requested a waiver of Agency regulations on grade inversion. On March 16, 1988, the selected employee was detailed to the GS-9 production controller position for a period not to exceed 120 days. On March 31, 1988, the National Guard Bureau approved a waiver of the grade inversion regulations for a period of 12 months. On April 10, 1988, the selected employee was temporarily promoted to the position. Thereafter, the downgraded employee was officially reduced in military grade to E-6, and on June 3, 1988, the selected employee was permanently promoted to the GS-9 production controller position.
The Union filed a grievance claiming that the vacancy announcement did not comply with the Oklahoma Military Department merit promotion plan (OMD-TPR-335) and the parties' collective bargaining agreement. The Union claimed that the area of consideration was not wide enough to ensure a sufficient number of qualified candidates, as required by OMD-TPR-335. The Union also claimed that the Activity improperly requested a waiver of grade inversion regulations in order to select an employee from the area of consideration. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the vacancy announcement complied with applicable regulations and the collective bargaining agreement.
III. The Arbitrator's Award
The Arbitrator determined that the "crux of the case" was whether the size or scope of the area of consideration was proper under the regulations. Arbitrator's Award at 12. The Arbitrator noted that all the relevant regulatory provisions specify that the area of consideration should be broad enough to reasonably assure a pool of qualified candidates. The Arbitrator also noted that none of the applicable regulatory provisions specified any minimum or particular number of candidates. Instead, the regulations require only an area of "sufficient" size to produce a pool of "highly qualified" candidates. Id. The Arbitrator also noted that "an abundance of discretion is left to the nominating authority." Id. at 13. The Arbitrator further noted that OMD-TPR-335 listed some types of "standard areas of consideration" to include "functional area." Id.
The Arbitrator found that the specified area of consideration provided a realistic potential of providing three candidates well-qualified for the position. "In view of the measure of discretionary judgement allowed by the pertinent regulations," he concluded that this number was sufficient and in accordance with applicable regulations and the parties' collective bargaining agreement. Id. at 14.
Because the area of consideration provided two applicants "uniquely qualified" to fill the position, the Arbitrator also concluded that it was proper for management not to expand the area of consideration. Id. at 15. The Arbitrator rejected several cases cited by the Union "in which arbitrators recognized that areas of consideration may be, and sometimes should be expanded." Id. He was not persuaded by the cases cited by the Union because, in his view, this type of case turns on its "own special facts." Id.
The Arbitrator also rejected the Union's claim that the Activity improperly sought a waiver of grade inversion regulations. The Arbitrator found that there was no basis for concluding that the Activity's use of existing provisions of National Guard Bureau regulations to resolve the problems presented by the personnel actions in this case was contrary to OMD-TPR-335 or the parties' collective bargaining agreement.
Consequently, the Arbitrator ruled that the announcement complied with applicable regulations and the provisions of the collective bargaining agreement. Accordingly, he denied the grievance.
IV. Positions of the Parties
A. The Union
The Union contends that the award is contrary to regulation and the collective bargaining agreement.
The Union argues that the Arbitrator erred by finding that the Activity acted properly by limiting the area of consideration to FA 2121. The Union claims that the area of consideration was contrary to OMD-TPR-335 because it did not produce a sufficient number of qualified candidates. The Union maintains that, at a minimum, the area of consideration should provide three qualified candidates for a position. Because the Activity received only two applications, the Union asserts that the Activity should have expanded the area of consideration and that the Arbitrator erred by not requiring expansion of the area of consideration. The Union cites three arbitration awards involving other parties where the arbitrators interpreted collective bargaining agreements to allow expansion of the area of consideration when three or fewer qualified candidates were available.
The Union also argues that the award is contrary to OMD-TPR-335 and the collective bargaining agreement by affirming the selection of an employee whose selection resulted in grade inversion. The Union maintains that in order to comply with regulations and the collective bargaining agreement, the Activity must prohibit grade inversions, not obtain a waiver of the prohibition.
B. The Agency
The Agency contends that the Arbitrator properly determined that the vacancy announcement complied with applicable regulations and the provisions of the collective bargaining agreement. The Agency maintains that the Union's exceptions provide no basis for finding the award deficient.
V. Discussion
Under section 7122(a) of the Statute, an award will be found 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 relations cases. For the reasons stated below, we conclude that the Union fails to establish that the award is deficient on any ground set forth in the Statute.
The Union's contention that the award is contrary to the collective bargaining agreement provides no basis for finding the award deficient. The contention constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. For example, Department of the Army, Headquarters, United States Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 33 FLRA 53 (1988) (an exception contending that the award was contrary to the collective bargaining agreement provided no basis for finding the award deficient because the exception constituted nothing more than disagreement with, among other matters, the arbitrator's interpretation and application of the agreement).
The Union also contends that the award is contrary to regulation. We are not persuaded that the award is contrary to regulation. None of the applicable regulatory provisions specifies that an area of consideration must provide any minimum or particular number of candidates. Therefore, there is no basis on which to conclude that the Arbitrator's award is contrary to regulation.
Furthermore, we reject the Union's assertion that the award is deficient because it conflicts with other arbitration awards. Even if the Arbitrator's award is inconsistent with the three arbitration awards cited by the Union, a matter which is not apparent from the brief descriptions of the awards provided by the Union, arbitration awards are not precedential and an inconsistency with these awards provides no basis for finding the Arbitrator's award deficient. See, for example, Department of the Army, Headquarters, U.S. Army Materiel Command and National Federation of Federal Employees, Local 1332, 32 FLRA 961 (1988) (an arbitrator's award in one case is without precedential effect on the outcome of another case).
Finally, in view of the waiver granted the Activity under existing National Guard Bureau regulations on grade inversion, we reject the Union's contention that under OMD-TPR-335, grade inversion prohibited the selection in this case.
The Union's exceptions fail to establish that the award is deficient on any ground set forth in the Statute. Accordingly, we will deny the exceptions.
VI. Decision
The Union's exceptions are denied.
FOOTNOTES:
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have footnotes.)