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The decision of the Authority follows:
16 FLRA NO. 139
U.S. NAVAL AIR STATION, KEY WEST FLORIDA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1566 Union Case No. 0-AR-749
This matter is before the Authority on exceptions to the award of Arbitrator David F. Sweeny 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 Union filed an opposition. 1
The parties submitted to arbitration the issue of whether the Activity's filling of the position of transportation equipment maintenance foreman was in full compliance with the provisions of the parties' collective bargaining agreement and the Activity's merit promotion plan regulation, NASKWINST 1200.4. The Arbitrator determined that the Activity did not fully comply with the agreement and the plan. Accordingly, the Arbitrator awarded as follows:
The grievance is sustained. The appointment of Thomas Gates to the position of Transportation Equipment Maintenance Foreman WS 10 should be rescinded. The position should be reposted in accordance with the provisions of the agreement and filled in accordance with the requirements of NASKWINST 12000.4.
As one of its exceptions, the Agency essentially contends that the award is contrary to FPM chapter 335 by ordering that the position be vacated in advance to corrective action. The Authority agrees. [ v16 p1077 ]
The Authority has repeatedly held that the incumbent employee in these cases is entitled pursuant to FPM chapter 335, appendix A, section A-4b to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been properly selected. E.g., Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 1919, 14 FLRA No. 86 (1984). In terms of this case, the Arbitrator did not specifically determine that a reconstruction of the selection action showed that the selected employee could not have been selected had the proper procedures been followed at the time the action was taken. Therefore, the award to the extent it orders the position vacated in advance of corrective action is deficient as contrary to FPM chapter 335, appendix A, section A-4. See id. at 2. Accordingly, the award is modified to strike the second sentence of the award and add the following as the last sentence of the award: 2
The action involving the incumbent employee must fully conform with controlling law and regulation and with the parties' collective bargaining agreement.
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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Footnote 1 In its opposition the Union has objected to the Agency's exceptions on various procedural grounds. The Authority however concludes that the exceptions are not procedurally deficient as alleged by the Union.
Footnote 2 In its other exceptions of the Agency contends that the award is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4. However, the award expressly provides that the corrective action must conform with the activity's merit promotion plan regulation which would necessarily include, as applicable, the provisions cited by the Agency. Accordingly, no basis is provided for finding the award deficient in this respect and the exception is denied. See Department of Justice, INS, 14 FLRA No. 86, at 2 n.2; Adjutant General, State of Oklahoma, Air National Guard and American Federation of Government Employees, Will Rogers Air national Guard Local 3953, 8 FLRA 112, 114 n. (1982).