15:0401(84)AR - Transportation, Federal Railroad Administration and AFGE Local 2814 -- 1984 FLRAdec AR

 15 FLRA No. 84
 
 UNITED STATES DEPARTMENT
 OF TRANSPORTATION, FEDERAL
 RAILROAD ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2814
 Union
 
                                            Case No. O-AR-497
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Seymour Strongin filed by the Agency 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 dispute in this matter concerned the filling of a GS-12 Railroad
 Safety Inspector (Hazardous Materials) position in Fort Worth, Texas.
 The list of "Best Qualified" applicants included two external
 candidates, i.e., applicants who were not employed by the Agency, and
 three internal candidates, i.e., Agency employees.  The dispute arose
 when the Agency selected one of the external candidates to fill the
 position rather than the grievant, the most senior of the internal
 candidates.
 
    The Arbitrator found that while the Agency had a statutory right to
 make a selection from any appropriate source, the Agency also had a duty
 under the parties' collective bargaining agreement to give special
 consideration in filling vacancies to unit employees who applied for
 voluntary reassignments to different geographical locations.  The
 Arbitrator determined that the Agency not only failed to give special
 consideration to the internal candidates for the Fort Worth vacancy as
 required by the parties' agreement, but considered the fact that it
 would have to pay the moving expenses of the internal candidates as a
 reason for their nonselection.  The Arbitrator therefore sustained the
 grievance and directed that the Agency reassign the grievant, if he
 desires, to Fort Worth with payment of appropriate expenses.  The
 Arbitrator further provided that the Agency could then fill the vacancy
 created by the grievant's reassignment in an appropriate manner and that
 the present incumbent of the Fort Worth position could either fill that
 vacancy or eventually be placed in another available and appropriate
 position.
 
    In its exceptions, the Agency contends, among other things, that the
 award violates section 7106(a) of the Statute.  The Authority agrees.
 
    It is well-established that an arbitrator's award may not interpret
 or enforce a provision of a collective bargaining agreement so as to
 deny the authority of an agency to exercise its statutory rights under
 7106(a) of the Statute, or so as to result in the substitution of the
 arbitrator's judgment for that of the agency in the exercise of those
 rights.  Veterans Administration Hospital, Lebanon, Pennsylvania and
 American Federation of Government Employees, AFL-CIO, Local 1966, 11
 FLRA No. 43 (1983).  Section 7106(a)(2)(A) of the Statute reserves to
 management officials the right to assign employees.  Section
 7106(a)(2)(C) reserves to management the right in filling positions to
 make selections from among properly ranked and certified candidates or
 from any other appropriate source.
 
    Thus, in terms of this case, while the Arbitrator had considerable
 latitude in fashioning a remedy for the Agency's violation of the
 parties' agreement, his award is deficient in two respects.  First, to
 the extent the award directs the Agency to reassign the grievant to Fort
 Worth the award is contrary to section 7106(a)(2)(A) and second, to the
 extent the award directs the Agency to vacate its selection and select
 the grievant for the Fort Worth position the award is contrary to
 section 7106(a)(2)(C).
 
    Therefore, the Arbitrator's award is modified to provide the
 following remedy in place of that ordered by the Arbitrator:
 
          The Agency shall rerun the selection action for the Railroad
       Safety Inspector (Hazardous Materials) GS-12 position in Fort
       Worth, Texas.  The rerunning of the selection action by the Agency
       and any action involving the incumbent employee must fully conform
       with controlling law and regulation and the parties' collective
       bargaining agreement.  More particularly, the rerunning of the
       selection action and any action involving the incumbent employee
       must be in accordance with section 7106(a) of the Federal Service
       Labor-Management Relations Statute and the corrective action
       provisions of Federal Personnel Manual chapter 335, appendix A,
       section A-4b.
 
    Issued, Washington, D.C., July 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY