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

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The decision of the Authority follows:

 14 FLRA No. 86
 LOCAL 1917
                                            Case No. O-AR-273
    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       position shall be rescinded.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, Chairm