16:1122(145)AR FLRA CASE INFORMATION SHEET DIGEST HEADINGS SUBJECT MATTER INDEX ENTRIES STATUTE DIGEST NOTES DECISION -- 1984 FLRAdec AR
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The decision of the Authority follows:
16 FLRA NO. 145
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1546 Union and SHARPE ARMY DEPOT, DEPARTMENT OF THE ARMY, LATHROP, CALIFORNIA Activity Case No. 0-AR-779
This matter is before the Authority on exceptions to the award of Arbitrator Leo Kanowitz 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.
The dispute in this matter concerns the filling of a supervisory physical science technician position. The Arbitrator first determined that the grievance over the filling of a supervisory position was arbitrable under the parties' collective bargaining agreement. On the merits the Arbitrator determined that the Activity violated proper procedures in filling the position. Accordingly, the Arbitrator ordered that the selection action for the position be cancelled, the position be reannounced, and proper procedures be followed in filling the position.
As one of its exceptions the Agency essentially contends that the award is deficient by ordering that the position be vacated in advance of corrective action. The Authority agrees.
The Authority was repeated 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., Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 1919, 14 FLRA No. 86 (1984). 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. [ v16 p1122 ] 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, paragraph 3 of the award is modified to