American Federation of Government Employees, Local 1867 (Union) and United States, Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado (Agency)

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59 FLRA No. 132

LOCAL 1867







March 5, 2004


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sherman G. Finesilver filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The grievance concerns an employee's reassignment during a reduction-in-force (RIF). For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was a motor vehicle operator at the United States Air Force Academy. As a result of contracting out under OMB Circular A-76, a RIF occurred at the facility. The grievant was "bumped" from his position by an employee in a higher retention group and with longer service and placed in a waiter position in the cadet dining hall. The grievant filed a grievance alleging that the Agency violated 5 C.F.R. §§ 702 and 705, and 5 U.S.C. § 2301, and that he was improperly displaced. The parties did not resolve the issue and submitted it to arbitration. The Arbitrator identified the issue before him as whether the Agency violated applicable procedures of the RIF and whether the grievant was improperly displaced.

      The Arbitrator found no violations of RIF procedures or regulations, and that there was no evidence to substantiate the grievance. More particularly, the Arbitrator found that the employee who displaced the grievant was qualified for the position and was entitled to bump the grievant under RIF procedures. The Arbitrator also found that the grievant failed to identify any other available position for which he was qualified during the RIF and reorganization process that would have provided another assignment option.

      As to the other employees who testified, the Arbitrator found that their situations did not support the grievant and only provided background as to the effects of the RIF. The Arbitrator determined that any alleged RIF rights violations regarding these employees were not properly before him.

      Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union maintains that the Arbitrator exceeded his authority by failing to address the placement of three other employees, Peters, Patterson and Barela, during the RIF and whether their placement undermined the grievant's RIF rights. Among other things, the Union claims that Peters was not qualified for the position when he was placed in it because he had to obtain the proper license after placement. The Union then claims that Patterson was placed into a scheduler/dispatcher position without following RIF procedures. Finally, the Union asserts that Barela was placed into a newly created Wage Leader (WL) position. The Union alleges that the RIF actions regarding these three employees resulted in violating the RIF rights of the grievant.

      The Union makes several contentions regarding the three other employees also affected by the RIF and contends that the circumstances of the other employees adversely affected the grievant's placement rights. In particular, the Union claims that the Agency violated RIF regulations regarding the placement of these other employees.

B.     Agency's Opposition

      The Agency maintains, as the Arbitrator found, that all appropriate RIF regulations and procedures were observed. The Agency contends that the grievant did not identify any other available positions for which he would qualify during the RIF process. The Agency asserts that the circumstances of the three other employees referenced in the Union's exceptions would have [ v59 p738 ] had no effect on the grievant's situation because these employees/positions were not among the positions to which the grievant could retreat.

      In particular, the Agen