46:0093(10)AR - - AFGE, Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v46 p93
[ v46 p93 ]
The decision of the Authority follows:
46 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
October 15, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to a supplemental award of Arbitrator Robert L. Taylor filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the exception.
In his supplemental award, the Arbitrator clarified his previous award by ordering the Agency to assign the grievant to a particular position. For the following reasons, we conclude that the award is deficient. Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The underlying grievance concerned the reassignment of the grievant from a WG-8 testing equipment operator position to a WG-8 sheet metal worker position as a result of a RIF. The grievant maintained that she should have been assigned to a WG-8 aircraft mechanic position. A grievance was filed over the matter and, when it was unresolved, it was submitted to arbitration. The Arbitrator sustained the grievance and awarded the grievant an aircraft mechanic position.
The Agency filed exceptions to the award and claimed that, among other things, the award was inconsistent with FPM Supplement 351-1, subchapter S5-3 (1) and Air Force Regulation (AFR) 40-351 (2). In American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 44 FLRA 247, 248 (1992)(Tinker Air Force Base), we concluded that, under FPM Supplement 351-1, subchapter S5-3, the grievant could not properly have been assigned to an aircraft mechanic position at a level lower than WG-8 because a WG-8 sheet metal worker position was available at the time of reassignment. However, we were unable to determine whether the Arbitrator awarded the grievant a WG-5 or a WG-8 aircraft mechanic position. Accordingly, we remanded the case to the parties for resubmission to the Arbitrator for clarification.
In his supplemental award, the Arbitrator determined that, at the time of the grievant's reassignment, there were no vacant WG-8 aircraft mechanic positions. However, the Arbitrator also determined that there were vacant aircraft mechanic positions at the WG-5 level "to which [the grievant] could have been assigned . . . ." Supplemental Award at 2. The Arbitrator noted that other employees, who were junior to the grievant, had been assigned to WG-5 aircraft mechanic positions and stated that it was his intention to accord the grievant "the right to claim the same job to which [the other employees] were assigned." Id. at 3.
As relevant here, the Agency argues that, because the Arbitrator clarified his previous award to require the Agency to assign the grievant to a WG-5 position, the supplemental award is inconsistent with FPM Supplement 351-1, subchapter S5-3 and AFR 40-351.(3) According to the Agency, these regulations entitle an employee affected by a RIF to assignment to the highest-graded available position for which the employee is qualified at the time of the assignment. The Agency argues that, as a WG-8 sheet metal worker position was available at the time of the grievant's assignment, a requirement that the grievant be assigned to a WG-5 position is contrary to the FPM Supplement and its regulation.
IV. Analysis and Conclusions
In his supplemental award, the Arbitrator noted that, at the time of the grievant's assignment, there were no WG-8 aircraft mechanic positions available. The Arbitrator also noted, however, that a number of aircraft mechanic positions were available at the WG-5 level and that other employees had been assigned to the WG-5 positions. The Arbitrator specifically stated his "intention" to accord the grievant "the same job" as the other employees. Supplemental Award at 3. In view of these findings and conclusions, and as there is no assertion to the contrary in the record before us, we conclude, in agreement with the Agency, that the Arbitrator awarded the grievant a WG-5 aircraft mechanic position.
In Tinker Air Force Base, we noted that, as a WG-8 sheet metal worker position was available at the time of the grievant's reassignment, she could not be assigned to a lower level position. We also stated that, if the Arbitrator awarded the grievant a WG-5 position, the award would be deficient under FPM Supplement 351-1, subchapter S5-3. We conclude that the Arbitrator awarded the grievant a WG-5 aircraft mechanic position. Consequently, we conclude also that the supplemental award is inconsistent with FPM Supplement 351-1, subchapter S5-3.
FPM Supplement 351-1, subchapter S5-3 is a Government-wide regulation. For example, Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 354 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). Accordingly, the award is deficient under section 7122(a)(1) of the Statute. In view of this decision, we do not address the Agency's argument that the award also is inconsistent with an Agency regulation.
The Arbitrator's supplemental award is set aside.
(If blank, the decision does not have footnotes.)
1. FPM Supplement 351-1, subchapter S5-3 provides in pertinent part:
b. More than one available position. When more than one available position will satisfy an employee's assignment right, the employee is entitled to the position with the highest representative rate. . . .
2. The Agency states that AFR 40-351, paragraph 7b, provides that "'an employee is entitled to the position that represents the best offer in terms of grade at or below his or her current grade or representative rate.'" Exceptions to the Original Award at 4.
3. The Agency also argues,