14:0240(44)AR - Transportation, Federal Railroad Administration and AFGE Local 2814 -- 1984 FLRAdec AR

 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.