18:0317(41)AR - INS and AFGE Local 2805 -- 1985 FLRAdec AR
[ v18 p317 ]
The decision of the Authority follows:
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.