27:0109(20)AR - DOL, OIPA and AFGE Local 12 -- 1987 FLRAdec AR

 27 FLRA No. 20
 
 U.S. DEPARTMENT OF LABOR, OIPA
 Agency
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 12
 Union
 
                                            Case No. O-AR-1225
 
                        DECISION ON RECONSIDERATION
 
                         I.  Statement of the Case
 
    This case has been reopened by the Authority basead on the Union's
 motion seeking reconsideration of our decision in U.S. Department of
 Labor, OIPA and American Federation of Government Employees, AFL-CIO,
 Local 12, 26 FLRA No. 44 (March 23, 1987).  In that decision, we
 addressed the Agency's exceptions to the award of Arbitrator Harry M.
 Leet.  However, we did not address the Union's exceptions to the award,
 which had been docketed under another case number and inadvertently had
 not been considered in connection with the Agency's exceptions.  This
 decision addresses the Union's exceptions.
 
                  II.  Background and Arbitrator's Award
 
    As stated in our decision of March 23, 1987, the grievance in this
 case arose when, as the result of a moratorium on the production of
 audiovisual materials and a reduction in its budget, the Agency
 determined that a reduction in force (RIF) of three GS-11 audiovisual
 specialists was necessary.  At the same time, the Agency created a new
 GS-12 audiovisual specialist position to perform the duties remaining
 and other duties relating to new work.  The three employees affected by
 the RIF were advised of the new position and were urged to apply.  All
 were found to be qualified for it.  The employee with the least
 seniority among the three candidates was selected.  As a result of the
 RIF, one of the other employees who was not selected was downgraded from
 GS-11 to GS-4 position.  That employee grieved, and the matter was
 submitted to arbitration.
 
    The Arbitrator found that (1) the RIF was properly conducted, (2) the
 GS-12 position was properly created and (3) there was justification for
 the selection of the least senior employee.  The Arbitrator also found
 that the Agency had breached the parties' collective bargaining
 agreement by not establishing a Placement Committee at the time of the
 RIF as required by the agreement.  As his award, the Arbitrator ordered
 the Agency to pay the grievant an amount equal to one month's difference
 between the regular rate of pay for the GS-4 job which the grievant now
 holds and the rate of pay for the GS-12 audiovisual specialist position
 the grievant claimed he should have received.
 
    The Agency excepted only to that portion of the award which awarded
 backpay to the grievant.  In resolving the Agency's exception, we
 determined that the award was contrary to the Back Pay Act, 5 U.S.C.
 Section 5596, and we modified the award accordingly.
 
                         III.  Union's Exceptions
 
    The Union contends that the Arbitrator erred in his application of
 federal law and regulations pertaining to racial discrimination claims.
 Accouding to the Union, the Arbitrator should have found that (1) the
 Agency improperly discriminated against the grievant on the basis of
 race in not selecting him for the new GS-12 position;  and (2) the
 creation and filling of the new GS-12 vacancy simultaneously with the
 RIF improperly circumvented contr