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16 FLRA NO. 138

UNITED STATES DEPARTMENT
OF LABOR, WASHINGTON, D.C.

     Agency

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 12

     Union

Case No. 0-AR-589

 

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Harold D. Jones, Jr. 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.

The parties submitted to arbitration the issue of whether the Agency violated law, regulation, or the parties' collective bargaining agreement in connection with the reduction-in-force effective December 31, 1981, in the National Office of the Employment and Training Administration. The Arbitrator determined that the Agency violated regulations and the agreement. Consequently, the Arbitrator directed that the Agency "make employees involved in the reduction-in-force effective December 31, 1981, whole to the extent required by changes in retention factors, other than performance, which would have occurred prior to, or as of, December 31, 1981 but for the retention standings of employees being arbitrarily frozen at a time prior to their releases from their competitive level effective December 31, 1981."

In its exception the Agency contends that the award is contrary to the Statute. However, contrary to the Agency's contention, the Authority finds that the award is fully in accordance with law and regulation and that consequently no basis is provided for finding the award deficient.

The phrase "reduction-in-force" (RIF) refers to the process a Federal agency can initiate to eliminate positions in the agency and to take appropriate action with respect to employees who had occupied the abolished positions. See generally International Federation of Professional and Technical Engineers, AFL - CIO, NASA Headquarters [ v16  p1075 ] Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982). In taking such an action the agency must comply with regulations issued by the Office of Personnel Management (OPM) pursuant to statute. 5 U.S.C. 3505 (1982). Among other things, these regulations prescribe that except for determining additional service credit for performance ratings, "(t)he retention standing of each employee released from his competitive level ... is determined as of the date he is so released." 5 CFR 351.506(a) (Supp. 1984). Moreover, the regulations further prescribe that "(w)hen an agency discovers an error in the determination of an employee's retention standing, it shall correct the error and adjust any erroneous reduction in force action to accord with the employee's true retention standing as of the effective date established by this section." 5 CFR 351.506(c) (Supp. 1984). Thus, pursuant to 5 CFR 351.506(a), no basis has been provided for finding deficient the Arbitrator's determination that the Agency acted improperly by establishing retention standings prior to the release date of employees. Likewise, pursuant to 5 CFR 351.506(c), no basis has been provided for finding deficient the remedy directed by the Arbitrator. In this respect, as noted, the award in effect is no more than a restatement of that which the Agency must do under governing law and regulation, namely, adjust the RIF action to accord employees' their true retention standing as of December 31, 1981. The Agency has specifically argued that this remedy is contrary to section 7106(a) because is directs that the Agency promote a certain employee. However, if in adjusting the RIF action to accord the proper retention standings, the effecting of particular personnel actions are mandated by governing law and regulation, such personnel actions, again, are those which the Agency must do under law and regulation. Consequently, the Authority concludes that this argument provides no basis for finding the award deficient under the Statute.

Accordingly, the Agency's exception is denied.

 

Issued, Washington, D.C., December 24, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

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