[ v14 p240 ]
The decision of the Authority follows:
14 FLRA No. 44 U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL RAILROAD ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814, AFL-CIO Union Case No. O-AR-356 DECISION This matter is before the Authority on an exception to the award of Arbitrator Frederick U. Reel 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 dispute in this matter concerns the filling of a GS-12 railroad safety inspector position in Little Rock, Arkansas. The Agency posted the position vacancy and specified that requests for change to lower grade would be accepted, but that such requests would not be deemed essential to the Agency's mission and moving expenses consequently would not be paid by the Agency. No applicants applied for the position and the posting was removed. Thereafter, the Agency filled the position by reassignment of an employee who requested a change to lower grade from his position to the safety inspector position, and the Agency paid his moving expenses. A grievance was filed and submitted to arbitration protesting the payment of the employee's moving expenses. The Arbitrator determined that the Agency had violated the parties' collective bargaining agreement and applicable travel regulations by paying the employee's moving expenses, and accordingly he sustained the grievance. However, the Arbitrator expressly acknowledged that the question of an appropriate remedy was exceedingly difficult. Consequently, he outlined three alternative remedies and directed the Agency to remedy the violation by selecting one of the alternatives. The first remedy outlined is to restore the status quo ante by vacating the safety inspector position and returning the incumbent employee to his original position and by reposting the safety inspector position vacancy under the original terms. The second remedy is to repost the vacancy with moving expenses to be paid and with the incumbent employee retained in the position. The third remedy outlined by the Arbitrator is for the Agency to provide as part of the next posting of a vacancy in a safety inspector position that moving expenses will be paid. In its exception the Agency contends that the award is deficient because all three remedies are in some respect contrary to law, rule, or regulation. The Authority agrees. Governing law and regulation clearly prescribe that in order for the payment of travel and transportation expenses of a transferred employee to be authorized from Government funds, the transfer must be in the interest of the Government and must not be primarily for the convenience or benefit of the employee or at the employee's request. 5 U.S.C. 5724; Federal Property Management Regulations (41 CFR), section 101-7.003; GSA Bulletin FPMR A-40, chapter 2, paragraph 2-1.3 (commonly known as Federal Travel Regulations). Consequently, the third remedy outlined by the Arbitrator is deficient in its entirety because it orders that a provision for the payment of moving expenses from Government funds must be included as part of the posting for the next vacancy in a safety inspector position without regard to whether such payment would be authorized by controlling law and regulation. Therefore, this remedy may not be implemented. National Federation of Federal Employees, Local 1332 and United States Army Materiel Development and Readiness Command Headquarters, 7 FLRA No. 95(1982). The second remedy is likewise contrary to such law and regulation to the extent that it orders that a provision for the payment of moving expenses must be included as part of the reposting of the safety inspector position vacancy. With respect to the first remedy outlined by the Arbitrator, the Authority has uniformly held that the incumbent employee in these cases is entitled pursuant to Federal Personnel Manual (FPM) chapter 335, appendix A, section A-4b to be retained in the position unless it is specifically determined that the selection action cannot be corrected to conform essentially to all applicable requirements as of the date the action was taken. Defense Contract Administration Services Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94(1982); The Adjutant General, State of Oklahoma, Air National Guard and American Federation of Government Employees, Will Rogers Air National Guard Local 3953, 8 FLRA No. 23(1982). Because the Arbitrator essentially determined that the selection action could be appropriately corrected, the first remedy to the extent that it orders the position vacated in advance of corrective action is deficient as contrary to FPM chapter 335, appendix A, section A-4b. See DCASMA, at 2; The Adjutant General, State of Oklahoma, at 3. Accordingly, and in view of the Arbitrator's finding that the Agency violated the agreement and applicable regulations by its actions in this case, the award is modified as follows: /1/ The grievance is sustained, and the Agency is directed to remedy its violation by a means which is consistent with applicable law and regulation, and the parties' collective bargaining agreement. /2/ Issued, Washington, D.C., April 6, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency also contends that the award is contrary to section 7106(a) of the Statute and the Back Pay Act, 5 U.S.C. 5596. However, there is no basis for finding the award, as modified by the Authority, deficient. See U.S. Department of Justice, Medical Center For Federal Prisoners and American Federation of Government Employees, Local 1612, 11 FLRA No. 15(1983), at 3 n.3; The Adjutant General, State of Oklahoma, 8 FLRA No. 23, at 3 n.; American Federation of Government Employees, AFL-CIO, Local 41 and Department of Health and Human Services, Office of the Secretary, Headquarters, 8 FLRA No. 18(1982), at 2 n. /2/ The Authority has modified the award in this manner because all the remedies suggested in the alternative by the Arbitrator have been found in some respect deficient. However, if the matter of an appropriate remedy cannot be resolved, the parties may resubmit that matter to the Arbitrator or may refer such matter to arbitration.