15:0009(2)AR - IRS, Jacksonville District and NTEU -- 1984 FLRAdec AR



[ v15 p9 ]
15:0009(2)AR
The decision of the Authority follows:


 
 15 FLRA No. 2
 
 INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
                                            Case No. O-AR-378
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Edwin R. Render filed by both the Agency and the Union under
 section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.
 
    The dispute in this matter concerns the promotion of a GS-11 revenue
 officer to GS-12 supervisory revenue officer and his subsequent lateral
 reassignment to a nonsupervisory GS-12 bargaining unit position before
 he completed his supervisory probationary period.  A grievance was filed
 and submitted to arbitration challenging the reassignment.  The
 Arbitrator first ruled in disagreement with the Union that the Activity
 is not precluded from reassigning a supervisory employee who does not
 satisfactorily complete the prescribed probationary period to a
 nonsupervisory position at the same grade level.  However, the
 Arbitrator further determined that the Activity's filling of the
 nonsupervisory GS-12 position in the bargaining unit by lateral
 reassignment was in violation of the parties' collective bargaining
 agreement.  He ruled that under the agreement the Activity was required
 to have used competitive procedures.  Accordingly, he declared the
 awarding of the GS-12 position to the reassigned employee a violation of
 the agreement and directed that if the Activity wanted the position
 filled at GS-12, competitive procedures must be used.
 
    The Union in its exception to the award essentially contends that the
 award is contrary to 5 U.S.C. 3321 insofar as the Arbitrator ruled that
 the activity could permissiveLy reassign the employee to a
 nonsupervisory GS-12 position despite not having satisfactorily
 completed his probationary period for the GS-12 supervisory position.
 
    Section 3321 pertinently provides that employees who do not
 satisfactorily complete the prescribed probationary period for a
 supervisory or managerial position "shall be returned to a position of
 no lower grade and pay than the position from which the individual was
 transferred, assigned, or promoted." The Union in support of its
 exception contends as to promotions that the statutory provision
 requires the employee to be returned to the same grade from which the
 employee was promoted.  To the contrary the Authority finds that section
 3321 provides on behalf of the employee a minimum entitlement to be
 assigned to a position of no lower grade than the position the employee
 left;  the provision in no manner prohibits an agency from assigning
 such an employee to a position of the same grade as the supervisory or
 managerial position.  See also 5 CFR 315.907.  Accordingly, the Union's
 exception is denied.
 
    The Agency in its exception contends that the award is contrary to
 section 7106(a)(2)(C) of the Statute.  The Authority agrees.
 
    The Authority has expressly held that section 7106(a)(2)(C) provides
 for management's right to select from among a group of properly ranked
 and certified candidates for promotion or from any appropriate source.
 U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation
 of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983).
 Therefore, in terms of this case, the award to the extent that it
 requires the Activity to fill the position competitively is deficient as
 contrary to section 7106(a)(2)(C) and must be modified accordingly.
 Therefore, the award is modified to provide the following remedy in
 place of that ordered by the Arbitrator:
 
          The Activity shall rerun the selection action for the
       nonsupervisory GS-12 bargaining unit position in this case by
       announcing the position and proceeding under applicable merit
       promotion procedures.  The rerunning of the selection action by
       the Activity and the action involving the incumbent employee must
       fully conform with controlling law and regulation and the parties'
       collective bargaining agreement.  In particular, the action
       involving the incumbent employee must be in accordance with th