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



[ v18 p317 ]
18:0317(41)AR
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 appoint