---

 1 FLRA No. 94
 
 DIVISION OF MILITARY AND
 NAVAL AFFAIRS, STATE OF NEW YORK
 
 and
 
 ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., NEW YORK COUNCIL
 
                                            FLRC No. 78A-54
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY POSTED A VACANCY ANNOUNCEMENT FOR THE POSITION OF MILITARY
 PAY EXAMINER, GS-05.  THE ANNOUNCEMENT LIMITED APPLICANTS TO TECHNICIAN
 EMPLOYEES IN THE EXCEPTED SERVICE.  /1/ THE GRIEVANTS WERE THREE GS-4
 MILITARY PAY CLERKS WHO WERE IN THE COMPETITIVE SERVICE AND WHO WERE
 THEREBY EXCLUDED FROM CONSIDERATION FOR THE POSITION.  THEY FILED
 GRIEVANCES ALLEGING THAT THE ACTIVITY'S ANNOUNCEMENT LIMITING
 ELIGIBILITY TO EXCEPTED SERVICE EMPLOYEES VIOLATED ARTICLE 14, SECTION 6
 /2/ OF THE PARTIES AGREEMENT.  THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED THE
 NEGOTIATED AGREEMENT SINCE ARTICLE 14, SECTION 6 PROVIDES THAT
 QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE CONTAINED IN
 OFFICIAL JOB DESCRIPTIONS AND THE OFFICIAL JOB DESCRIPTION FOR THE
 POSITION IN QUESTION PROVIDES THAT BOTH EXCEPTED AND COMPETITIVE
 EMPLOYEES ARE QUALIFIED TO APPLY FOR SUCH POSITION.
 
    ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
 
    1.  MANAGEMENT DID VIOLATE ARTICLE 14 OF THE COLLECTIVE AGREEMENT
 BETWEEN THE PARTIES
 
    ("MERIT PROMOTION") WHEN IT DETERMINED ON 25 NOVEMBER 1975 THAT IT
 WOULD ONLY CONSIDER
 
    ELIGIBLE FOR APPOINTMENT TO THE POSITION MILITARY PAY EXAMINER
 (GS-05) APPLICANTS WHO ARE
 
    MEMBERS OF THE NEW YORK ARMY NATIONAL GUARD (EXCEPTED EMPLOYEES).
 
    2.  MANAGEMENT SHALL VACATE ITS WRONGFUL PERMANENT APPOINTMENT TO THE
 POSITION REFERRED TO
 
    IN THE PRECEDING PARAGRAPH, ANNOUNCE ITS VACANCY WITHOUT RESTRICTION
 TO EXCEPTED EMPLOYEES AND
 
    FILL THE VACANCY IN ACCORD WITH ARTICLE 14 OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
                     AGENCY'S APPEAL TO THE AUTHORITY
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  UNDER SECTION 2411.32 OF THE
 COUNCIL'S RULES OF PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR
 REVIEW OF THE ARBITRATOR'S AWARD INSOFAR AS IT RELATED TO THE AGENCY'S
 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
 SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  /3/ THE UNION FILED A BRIEF
 ON THE MERITS.  /4/
 
                                  OPINION
 
    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.
 
    SECTION 2411.37(A) OF THE RULES AS SO AMENDED PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE FEDERAL LABOR RELATIONS COUNCIL ACCEPTED
 THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S
 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE REGULATIONS,
 SPECIFICALLY THE FEDERAL PERSONNEL MANUAL.  THEREAFTER, IN ACCORDANCE
 WITH ESTABLISHED PRACTICE, THE COUNCIL REQUESTED FROM THE CIVIL SERVICE
 COMMISSION AN INTERPRETATION OF THE RELEVANT COMMISSION REGULATIONS AS
 THEY RELATE TO THE ARBITRATOR'S AWARD IN THIS CASE.  THE OFFICE OF
 PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
 COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) REPLIED IN
 RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANTS ALLEGE THAT AGENCY MANAGEMENT VIOLATED THE NEGOTIATED
 AGREEMENT BY LIMITING
 
    ELIGIBILITY FOR A VACANT MILITARY PAY EXAMINER POSITION ANNOUNCED
 UNDER THE AGENCY MERIT
 
    PROMOTION PROGRAM TO EXCEPTED EMPLOYEES.  THEY CLAIM THAT ARTICLE 14
 OF THE AGREEMENT REQUIRES
 
    THAT VACANCIES IN THE UNIT BE OPEN TO ALL QUALIFIED UNIT EMPLOYEES,
 WHETHER THEY ARE IN THE
 
    COMPETITIVE OR EXCEPTED SERVICE.  BECAUSE OF A HIRING FREEZE, THE
 VACANCY ANNOUNCEMENT AT
 
    ISSUE WAS WITHDRAWN AND A COMPETITIVE SERVICE TECHNICIAN WAS
 REASSIGNED TO THE VACANT
 
    POSITION.
 
    THE ARBITRATOR FOUND THAT MANAGEMENT HAD VIOLATED THE AGREEMENT BY
 LIMITING CONSIDERATION
 
    UNDER THE VACANCY ANNOUNCEMENT TO EXCEPTED EMPLOYEES.  THE PERTINENT
 PART OF ARTICLE 14
 
    REQUIRES THAT QUALIFICATION STANDARDS BE IN ACCORDANCE WITH THOSE
 CONTAINED IN OFFICIAL JOB
 
    DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.
  THE ARBITRATOR ORDERED
 
    MANAGEMENT TO VACATE ITS WRONGFUL PERMANENT APPOINTMENT (MADE
 SUBSEQUENT TO CANCELLATION OF
 
    THE VACANCY ANNOUNCEMENT BY LATERAL REASSIGNMENT), REANNOUNCE THE
 VACANCY UNDER MERIT
 
    PROMOTION PROCEDURES WITHOUT RESTRICTION TO EXCEPTED EMPLOYEES, AND
 FILL IT IN ACCORDANCE WITH
 
    THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 
    RULE 7.1 OF THE CIVIL SERVICE RULES GRANTS AN AGENCY THE RIGHT, WHICH
 MAY NOT BE GIVEN UP
 
    BILATERALLY, TO SELECT OR NON-SELECT CANDIDATES FROM A PROMOTION
 CERTIFICATE OR TO SELECT OR
 
    NON-SELECT FROM ANY OTHER APPROPRIATE SOURCE.  THAT RIGHT IS FURTHER
 ARTICULATED IN
 
    REQUIREMENT 4 OF FPM CHAPTER 335.
 
    AN AGENCY MAY PROPERLY BE REQUIRED TO RECONSTRUCT OR REPROCESS A
 PROMOTION ACTION IN WHICH
 
    AN ERROR OR VIOLATION HAS OCCURRED, AND THE INCUMBENT MAY BE REMOVED
 FROM THE POSITION PRIOR
 
    TO THE NEW COMPETITION IF HE COULD NOT PROPERLY HAVE BEEN SELECTED IN
 THE FIRST
 
    INSTANCE.  HOWEVER, A RULING IN A CASE LIKE THIS ONE TO RERUN A
 PROMOTION ACTION THAT WAS NOT
 
    COMPLETED IS NECESSARILY WITHOUT EFFECT SINCE MANAGEMENT COULD NOT BE
 CONSTRAINED TO SELECT
 
    FROM THE CANDIDATES WHO APPLIED UNDER A NEW VACANCY ANNOUNCEMENT ANY
 MORE THAN IT COULD HAVE
 
    BEEN REQUIRED TO COMPLETE THE SELECTION PROCESS UNDER MERIT PROMOTION
 PROCEDURES.
 
    BASED ON THE ABOVE ANALYSIS, WE BELIEVE THAT THE ARBITRATOR'S AWARD
 IN THIS CASE CONFLICTS
 
    WITH CIVIL SERVICE RULE 7.1 AND REQUIREMENT 4 OF FPM CHAPTER 335.
 
    BASED UPON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE FIND THAT PART 2 OF THE ARBITRATOR'S AWARD VIOLATES
 APPROPRIATE REGULATIONS AND, THEREFORE, MUST BE SET ASIDE.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 RULES OF PROCEDURE, WE HEREBY SET ASIDE PART 2 OF THE ARBITRATOR'S
 AWARD.  /5/
 
    ISSUED, WASHINGTON, D.C., AUGUST 10, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ACCORDING TO THE ARBITRATOR, TECHNICIAN EMPLOYEES ARE IN EITHER
 THE COMPETITIVE SERVICE OR THE EXCEPTED SERVICE.  EMPLOYEES IN THE
 EXCEPTED SERVICE, AS A CONDITION OF EMPLOYMENT, MUST MAINTAIN MILITARY
 STATUS IN THE NATIONAL GUARD.  EMPLOYEES IN THE COMPETITIVE SERVICE HAVE
 NO SUCH MILITARY OBLIGATION.  BOTH CLASSES OF EMPLOYEES ARE COVERED BY
 THE RELEVANT PROVISIONS OF THE AGREEMENT.
 
    /2/ ACCORDING TO THE ARBITRATOR, ARTICLE 14, SECTION 6, PROVIDES:
 
    QUALIFICATION STANDARDS WILL BE IN ACCORDANCE WITH THOSE CONTAINED IN
 OFFICIAL JOB
 
    DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.
 
    /3/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
 2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
 PENDING DETERMINATION OF THE APPEAL.
 
    /4/ THE UNION OBJECTED TO CERTAIN DOCUMENTS THAT WERE PART OF THE
 PUBLIC RECORD OF THE PROCEEDINGS BEFORE THE ARBITRATOR FORWARDED BY THE
 AGENCY.  SINCE THESE DOCUMENTS WERE NOT RELIED UPON IN REACHING THE
 DECISION IN THIS CASE, THE AUTHORITY DEEMS IT UNNECESSARY TO PASS ON THE
 UNION'S OBJECTION.
 
    /5/ 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.
 
 
 

---