14:0638(86)AR - Justice, INS and AFGE Local 1917 -- 1984 FLRAdec AR

 14 FLRA No. 86
 
 UNITED STATES DEPARTMENT
 OF JUSTICE, IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1917
 Union
 
                                            Case No. O-AR-273
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Rodney E. Dennis filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  /1/
 
    The dispute in this case concerns the voluntary demotion of the
 Agency's New York deputy district director to a particular criminal
 investigator position.  The Arbitrator determined that the Activity had
 violated the parties' collective bargaining agreement and agency
 regulation by failing to announce the position and post the vacancy.
 Accordingly, the Arbitrator awarded as follows:
 
          The Agency is directed to announce the open position on the
       Newark Strike Force and to fill it in accordance with appropriate
       rules and regulations.  Its action of placing Drastal in the
       position shall be rescinded.
 
    As one of its exceptions, the Agency contends that the award is
 contrary to FPM chapter 335 by ordering that the position be vacated in
 advance of corrective action.  The Authority agrees.
 
    The Authority has repeatedly held that the incumbent employee in
 these cases is entitled pursuant to FPM chapter 335, appendix A, section
 A-4b to be retained in the position pending corrective action unless it
 is specifically determined that the incumbent could not originally have
 been properly selected.  E.g., Defense Contract Administration Services
 Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of
 Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94 (1983).  In
 terms of this case, the Arbitrator did not specifically determine that a
 reconstruction of the selection action showed that the selected employee
 could not have been selected had the proper procedures been followed at
 the time the action was taken.  Therefore, the award to the extent it
 orders the position vacated in advance of corrective action is deficient
 as contrary to FPM chapter 335, appendix A, section A-4.  See id. at 2.
 Accordingly, the award is modified to substitute the following for the
 last sentence of the award:  /2/
 
          The action involving the incumbent employee must fully conform
       with controlling law and regulation and with the parties'
       collective bargaining agreement.
 
 Issued, Washington, D.C., May 17, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management (OPM) filed a brief as an
 amicus curiae.  The Union filed oppositions to both the Agency's
 exceptions and OPM's amicus curiae brief.  In its opposition to the
 Agency's exceptions, the Union claims that the exceptions should be
 dismissed because the Activity and not the Agency is a party.  However,
 the Authority finds that the exceptions were properly filed by the
 Agency on behalf of its Activity.
 
 
    /2/ In its other exceptions the Agency contends that the award
 interferes with its rights to hire and fill positions under section
 7106(a)(2)(A) and (C) and its right to select under FPM chapter 335,
 subchapter 1-4, Requirement 4.  However, the award expressly provides
 that the corrective action must conform with appropriate rules and
 regulations which would necessarily include, as applicable, the
 provisions cited by the Agency.  Accordingly, no basis is provided for
 finding the award deficient in this respect and the exceptions are
 denied.  See Adjutant General, State of Oklahoma, Air National Guard and
 American Federation of Government Employees, Will Rogers Air National
 Guard Local 3953, 8 FLRA No. 23, at 3 n. (1982).