18:0317(41)AR - INS and AFGE Local 2805 -- 1985 FLRAdec AR

 18 FLRA No. 41
 
 U.S. IMMIGRATION AND 
 NATURALIZATION SERVICE 
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 2805 
 Union
 
                                            Case No. 0-AR-689
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Donald T. Weckstein 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 Arbitrator as his award in this case ruled that the Activity
 violated the parties' collective bargaining agreement and the Federal
 Employees Part-time Career Employment Act of 1978, 5 U.S.C. 3401-3408
 (1982), in the assignment, utilization, and compensation of the five
 grievants while they were filling permanent part-time positions.  As a
 remedy the Arbitrator ordered in paragraph 2 of the award that the
 grievants shall be made whole by awarding them retroactively the pay and
 benefits of full-time immigration inspectors from the date that each
 grievant began regularly working a full-time workweek, that is, an
 average of forty or more hours per week, until the date that each was
 formally employed as a full-time employee.
 
    In its exceptions the Agency contends among other things that the
 remedy ordered by the Arbitrator is not authorized by law.  The
 Authority agrees.
 
    It is well established that as a matter of law a Federal employee is
 only entitled to the pay and benefits of the position to which the
 employee has been appointed.  U.S. v. Testan, 424 U.S. 392, 402 (1976);
 Ganse v. U.S., 376 F.2d 900, 902 (Ct. Cl. 1967).  In view of the
 Arbitrator's express acknowledgment that the grievants had been
 appointed as part-time immigration inspectors, it is clear that under
 Federal personnel law, the grievants were not entitled to receive and
 the Arbitrator was not authorized to order that they receive the pay and
 benefits attendant to an appointment as a full-time immigration
 inspector.  More specifically, for example, it has been expressly held
 that only full-time immigration inspectors and not part-time immigration
 inspectors are entitled to the additional compensation under the
 Overtime Act of March 2, 1931, 8 U.S.C. 1353a (commonly referred to as
 1931 Act overtime).  49 Comp.Gen. 577 (1970).  Furthermore, although the
 Arbitrator found violations of law and the collective bargaining
 agreement, the remedy awarded by the Arbitrator is not otherwise
 authorized under the Back Pay Act, 5 U.S.C. 5596 (1982).  With the
 Arbitrator only awarding the grievants the pay and benefits of the
 full-time position, there is no order by the Arbitrator appointing them
 retroactively to the position of full-time immigration inspector;  and
 with the Arbitrator expressly acknowledging that because of a personnel
 freeze, the grievants could not have been appointed as full-time
 inspectors, there is no finding by the Arbitrator that as a direct
 result of the violations of law and the agreement, the grievants were
 not appointed as full-time immigration inspectors when they otherwise
 would have been.  Consequently, the Arbitrator was not authorized under
 the terms of the Back Pay Act to award the grievants, as he did, the pay
 and benefits of the full-time immigration inspector position.  Picatinny
 Arsenal, U.S. Army Armament Research and Development Command, Dover, New
 Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA
 703, 707-08 & n.7 (1982);  cf. Smith v. U.S., 654 F.2d 50, 52 (Ct. Cl.
 1980) (In which case the Federal employee had claimed and a U.S.
 district court had found that denying him conversion from temporary to
 permanent employment status as a U.S. marshal was improper.  With
 respect to this claim and finding, the Court of Claims held in relevant
 part that there could be no entitlement under the Back Pay Act to the
 pay and benefits of a permanent employee because his conversion had been
 denied and he had never been appointed permanently as a marshal.).
 
    For these reasons the Authority finds that the Arbitrator's remedy is
 deficient as contrary to law and accordingly the Authority strikes
 paragraph 2 of the award constituting the directed remedy.  /2/ Issued,
 Washington, D.C., May 24, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union's opposition was untimely and has not been considered
 by the Authority.
 
 
    /2/ In view of this decision, it is necessary to resolve the Agency's
 other exceptions to the award.