---

 1 FLRA No. 41
                                            MAY 21, 1979
 
 MR. HERBERT L. ZIPPERIAN
 LABOR RELATIONS SPECIALIST
 LABOR AND EMPLOYEE RELATIONS BRANCH
 OFFICE OF CIVILIAN PERSONNEL
 DEPARTMENT OF THE NAVY
 WASHINGTON, D.C.  20390
 
 MS. JIMMIE F. GRIFFITH
 NATIONAL REPRESENTATIVE
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 3141 CLIFFOAK DRIVE
 DALLAS, TEXAS 75233
 
                RE:  NAVAL PLAN REPRESENTATIVE OFFICE, DALLAS, TEXAS 
                     AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,          
                     LOCAL UNION 3548 (SCHEDLER, ARBITRATOR), FLRC
                     No. 78A-157
 
 DEAR MR. ZIPPERIAN AND MS. GRIFFITH:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE PETITIONS FOR REVIEW OF
 THE ARBITRATOR'S AWARD FILED BY THE AGENCY AND THE UNION, THE UNION'S
 OPPOSITION TO THE AGENCY'S PETITION, AND THE RESPECTIVE REQUESTS FOR A
 STAY OF THE AWARD, ALL FILED IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER AROSE AS THE RESULT
 OF AN ANNOUNCEMENT POSTED BY THE NAVAL PLANT REPRESENTATIVE OFFICE (THE
 ACTIVITY) FOR A VACANCY IN A GRADE 12 POSITION.  THE GRIEVANT BID ON THE
 VACANCY AND HE WAS RATED AS HIGHLY QUALIFIED ALONG WITH THREE OTHER
 EMPLOYEES.  THE GRIEVANT FILED A GRIEVANCE WHEN HE WAS NOT SELECTED FOR
 THE POSITION.  AS PART OF HIS GRIEVANCE, THE GRIEVANT CLAIMED THAT THE
 SELECTION FOR THE POSITION HAD BEEN IMPROPER BECAUSE OF THE SELECTING
 OFFICIAL'S PARTIALITY IN FAVOR OF THE EMPLOYEE WHO WAS PROMOTED.  THE
 GRIEVANT ALLEGED THAT THE SELECTING OFFICIAL HAD SOLICITED AND ACCEPTED
 GRATUITIES AND FAVORS FROM THIS EMPLOYEE TO THE EXTENT THAT THE OFFICIAL
 COULD NOT MAKE A PROPER SELECTION.  THUS, THE GRIEVANT CLAIMED THAT HIS
 PROMOTIONAL OPPORTUNITIES HAD BEEN PREJUDICED BY THIS RELATIONSHIP
 BETWEEN THE SELECTING OFFICIAL AND THE SELECTED EMPLOYEE.  THE ACTIVITY
 FORMALLY INVESTIGATED THE GRIEVANT'S ALLEGATIONS AND EXONERATED FROM ANY
 MISCONDUCT BOTH THE SELECTING OFFICIAL AND THE EMPLOYEE SELECTED.
 THEREAFTER, THE GRIEVANT WAS REMOVED FROM THE FEDERAL SERVICE FOR
 "(K)NOWINGLY MAKING FALSE AND MALICIOUS STATEMENTS WITH INTENT TO HARM
 OR DESTROY THE REPUTATION OF OTHERS."
 
    THE GRIEVANCE DISPUTING THE SELECTION WAS ULTIMATELY SUBMITTED TO
 ARBITRATION WITH THE UNION REQUESTING THE ARBITRATOR TO FIND THAT THE
 ACTIVITY HAD VIOLATED THE PARTIES' NEGOTIATED AGREEMENT AND THE
 ACTIVITY'S MERIT PROMOTION PLAN IN ITS SELECTION FOR THE POSITION IN
 QUESTION.  THE UNION ALSO REQUESTED THE ARBITRATOR TO FIND THAT THE
 GRIEVANT WAS UNJUSTLY REMOVED FROM THE FEDERAL SERVICE.  IN THIS RESPECT
 THE ARBITRATOR RULED THAT THE CIVIL SERVICE COMMISSION WAS THE PROPER
 FORUM TO DISPUTE THE REMOVAL AND THAT HE WAS WITHOUT AUTHORITY TO RULE
 ON THE JUST CAUSE OF THE GRIEVANT'S REMOVAL.  HOWEVER, THE ARBITRATOR
 ALSO CONCLUDED THAT THERE WAS "NO DOUBT THAT THE REMOVAL OF THE GRIEVANT
 WAS DUE TO THE WORDS HE USED IN HIS WRITTEN GRIEVANCE, AND THERE IS
 LANGUAGE IN THE AGREEMENT AS WELL AS THE EXECUTIVE ORDER THAT GOVERNS
 THE RELATIONSHIP BETWEEN THE PARTIES WHEN AN EMPLOYEE FILES A
 GRIEVANCE." THUS, THE ARBITRATOR STATED THE ISSUES TO BE WHETHER THE
 ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND REGULATIONS IN ITS
 SELECTION AND WHETHER THE ACTIVITY VIOLATED THE AGREEMENT, THE ORDER, OR
 REGULATIONS IN ITS DISCIPLINE OF THE GRIEVANT FOR THE WORDS HE USED IN
 HIS WRITTEN GRIEVANCE.
 
    WITH RESPECT TO THE FIRST ISSUE, THE ARBITRATOR DETERMINED THAT THE
 SELECTING OFFICIAL HAD THE RIGHT TO SELECT ANY NAME FROM THE HIGHLY
 QUALIFIED LIST AND CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE THE
 AGREEMENT OR APPLICABLE REGULATIONS IN ITS SELECTION IN THIS CASE.  WITH
 RESPECT TO THE SECOND ISSUE, THE ARBITRATOR WAS OF THE OPINION THAT
 FEDERAL SECTOR ARBITRATION IS A CREATURE OF THE FEDERAL GOVERNMENT AND
 CONSEQUENTLY COMMUNICATIONS MADE IN THE COURSE OF A GRIEVANCE PROCEDURE
 ARE ABSOLUTELY PRIVILEGED.  ALTHOUGH THE ARBITRATOR FOUND ON THIS BASIS
 THAT THE ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT AND THE EXECUTIVE
 ORDER IN DISCIPLINING THE GRIEVANT FOR THE WORDS HE USED IN HIS WRITTEN
 GRIEVANCE, THE ARBITRATOR HELD THAT HE HAD NO AUTHORITY TO RULE ON
 WHETHER THE GRIEVANT SHOULD BE RETURNED TO HIS JOB SINCE THAT AUTHORITY
 IS RESERVED TO THE CIVIL SERVICE COMMISSION.
 
    THEREFORE, AS HIS AWARD THE ARBITRATOR FOUND AND ORDERED AS FOLLOWS:
 
    1.  THERE WAS NO SUBSTANTIAL AND MATERIAL VIOLATION OF THE AGREEMENT
 WHEN THE EMPLOYER
 
    SELECTED (THE EMPLOYEE THAT IT DID) FOR THE PROMOTION . . . .
 
    2.  THE EMPLOYER VIOLATED THE AGREEMENT AND THE EXECUTIVE ORDER WHEN
 THE EMPLOYER REMOVED
 
    THE GRIEVANT FROM SERVICE FOR THE WORDS USED IN HIS GRIEVANCE.  THE
 EMPLOYER WILL IMMEDIATELY
 
    OFFER TO EXPUNGE THE GRIEVANT'S PERSONNEL FILE OF HIS REMOVAL.
 
    BOTH THE AGENCY AND THE UNION FILED PETITIONS FOR REVIEW OF THE
 ARBITRATOR'S AWARD.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 7) AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
 RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART
 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE EXCEPT
 THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
 WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.35 OF THE RULES AS SO AMENDED, YOU ARE
 NOTIFIED THAT THE AUTHORITY HAS ACCEPTED THE AGENCY'S PETITION FOR
 REVIEW INSOFAR AS IT RELATES TO THE AGENCY'S EXCEPTION WHICH ALLEGES
 THAT PARAGRAPH 2 OF THE AWARD IS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL.  YOU ARE REMINDED THAT BRIEFS MAY BE FILED AS PROVIDED IN
 SECTION 2411.36 OF THE AMENDED RULES.
 
    THE AUTHORITY HAS ALSO CAREFULLY CONSIDERED THE AGENCY'S REQUEST FOR
 A STAY OF PARAGRAPH 2 OF THE ARBITRATOR'S AWARD.  PURSUANT TO SECTION
 2411.47(F) OF THE AMENDED RULES, THE AUTHORITY HAS DETERMINED, BASED ON
 THE FACTS AND CIRCUMSTANCES PRESENTED, THAT ISSUANCE OF A STAY OF
 PARAGRAPH 2 IS WARRANTED IN THIS CASE.  ACCORDINGLY, THE AGENCY'S
 REQUEST FOR A STAY IS GRANTED.  /1/
 
    IN ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD, THE UNION
 ASSERTS IN ITS ONE EXCEPTION TO THE AWARD THAT PARAGRAPH 1 OF THE AWARD
 SHOULD BE MODIFIED BECAUSE THE AGENCY VIOLATED APPLICABLE LAW,
 APPROPRIATE REGULATION, AND THE ORDER.  IN SUPPORT OF ITS EXCEPTION, THE
 UNION ESSENTIALLY ARGUES THAT WITH RESPECT TO THE ISSUE SUBMITTED TO
 ARBITRATION OF WHETHER THE ACTIVITY VIOLATED THE NEGOTIATED AGREEMENT
 AND REGULATIONS IN ITS SELECTION, THE GRIEVANCE HAD MERIT IN THAT THE
 ACTIVITY VIOLATED THE AGREEMENT, THE ACTIVITY MERIT PROMOTION PLAN,
 AGENCY REGULATIONS, AND THE FEDERAL PERSONNEL MANUAL BY ITS ACTIONS IN
 THIS CASE.
 
    AS NOTED, UNDER SECTION 2400.5 OF THE AUTHORITY'S TRANSITION RULES
 AND REGULATIONS AND SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, THE RULES OF PROCEDURE OF THE
 COUNCIL REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE EXCEPT THAT AS
 APPROPRIATE "AUTHORITY" IS SUBSTITUTED FOR "COUNCIL." ACCORDINGLY,
 PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD WHERE IT
 APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION,
 THAT AN EXCEPTION PRESENTS A GROUND THAT THE AWARD VIOLATES APPLICABLE
 LAW OR THAT THE AWARD VIOLATES APPROPRIATE REGULATION OR THAT THE AWARD
 VIOLATES THE ORDER.  IN THIS CASE, HOWEVER, THE UNION'S ASSERTIONS ARE
 THAT THE AGENCY'S ACTIONS, RATHER THAN THE AWARD, VIOLATED APPLICABLE
 LAW, APPROPRIATE REGULATION, AND THE ORDER.  AS IS WELL ESTABLISHED
 UNDER THE ORDER, ASSERTIONS THAT THE AGENCY VIOLATED APPLICABLE LAW OR
 APPROPRIATE REGULATION FAIL TO STATE A GROUND UPON WHICH A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD MAY BE GRANTED UNDER SECTION 2411.32 OF
 THE RULES.  PUGET SOUND NAVAL SHIPYARD AND BREMERTON METAL TRADES
 COUNCIL, AFL-CIO (SMITH, ARBITRATOR), 5 FLRC 480 (FLRC NO. 76A-146 (JUNE
 7, 1977), REPORT NO. 128).  LIKEWISE, AN ASSERTION THAT THE AGENCY
 RATHER THAN THE AWARD VIOLATED THE ORDER FAILS TO STATE A GROUND FOR
 REVIEW UNDER SECTION 2411.32 OF THE RULES.  OKLAHOMA CITY AIR LOGISTICS
 CENTER, TINKER AIR FORCE BASE, OKLAHOMA AND LOCAL 916, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (GRAY, ARBITRATOR), FLRC NO.
 78A-113 (DEC. 28, 1978), REPORT NO. 167.  THEREFORE, THE UNION'S
 PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD IS DENIED BECAUSE IT FAILS
 TO MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE RULES FOR ACCEPTANCE
 BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    /1/ IN VIEW OF THIS DECISION, IT IS UNNECESSARY TO PASS ON THE
 UNION'S REQUEST FOR A STAY OF THE ARBITRATOR'S AWARD.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

---