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56 FLRA No. 166
AFGE, Local 1698 and U.S. Dept. of the Navy, Naval Inventory Control Point, Philadelphia, Pennsylvania (Jarrell, Arbitrator), 0-AR-3316 (Decided December 13, 2000)
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it filled vacant positions using noncompetitive procedures. The Authority concluded that the Union failed to establish that the award was deficient under section 7122(a) of the Statute.
The Authority found that the Union's exception that the award was contrary to 7103(a)(14)(B) of the Statute was barred by section 2429.5 of the Authority's Regulations. Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator.
The Authority found that it was clear from the record that the Union was aware that the existence and enforcement of a past practice regarding accretions was an issue at the hearing. Thus, the Union's argument that the practice was not enforceable could have been presented to the Arbitrator. The Authority found no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the accretion process involved a classification matter.
The Union also argued that the award was contrary to 5 C.F.R. § 335.103(c)(3)(ii) because an agency's accretion process was not intended by the regulation to replace merit promotion as the normal method of promoting employees. However, the Authority noted that 5 C.F.R. § 335.103(c)(3)(ii) permits an agency discretion to utilize an accretion process. Although the regulation designates an agency's accretion process as an exception to required competitive procedures, the regulation does not limit the agency's discretion regarding how frequently the accretion process is exercised. The Authority further found that the Union did not provide any other basis to find that the Agency's use of the accretion process was contrary to the regulation. As such, the Union failed to demonstrate that the award was contrary to 5 C.F.R. § 335(c)(3)(ii).