U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 1917 (Authority decision, May 17, 1984)

Final FLRA decision. The Authority modified an arbitration award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator found that the Immigration and Naturalization Service had filled a criminal investigator position without announcing and posting the vacancy as required. He directed the agency to fill the position through proper procedures and remove the incumbent. The Authority held that the incumbent could remain while the agency took corrective action because the arbitrator had not found that the employee could not have been selected under proper procedures. It changed the award to require compliance with law, regulations, and the collective bargaining agreement when dealing with the incumbent.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Award modified to remove the immediate requirement to vacate the position.
• Key point: A procedural selection error did not by itself require removing the incumbent before corrective action.

Full text (FLRA public release)

[ v14 p638 ]

14:0638(86)AR

The decision of the Authority follows:

14 FLRA No. 86

UNITED STATES DEPARTMENT
OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1917
Union

Case No. O-AR-273

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Rodney E. Dennis 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. /1/

The dispute in this case concerns the voluntary demotion of the Agency's New York deputy district director to a particular criminal investigator position. The Arbitrator determined that the Activity had violated the parties' collective bargaining agreement and agency regulation by failing to announce the position and post the vacancy. Accordingly, the Arbitrator awarded as follows:

The Agency is directed to announce the open position on the Newark Strike Force and to fill it in accordance with appropriate rules and regulations. Its action of placing Drastal in the position shall be rescinded.

As one of its exceptions, the Agency contends that the award is contrary to FPM chapter 335 by ordering that the position be vacated in advance of corrective action. The Authority agrees.

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., Defense Contract Administration Services Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94 (1983). 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 substitute the following for 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., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Office of Personnel Management (OPM) filed a brief as an amicus curiae. The Union filed oppositions to both the Agency's exceptions and OPM's amicus curiae brief. In its opposition to the Agency's exceptions, the Union claims that the exceptions should be dismissed because the Activity and not the Agency is a party. However, the Authority finds that the exceptions were properly filed by the Agency on behalf of its Activity.

/2/ In its other exceptions the Agency contends that the award interferes with its rights to hire and fill positions under section 7106(a)(2)(A) and (C) and its right to select under FPM chapter 335, subchapter 1-4, Requirement 4. However, the award expressly provides that the corrective action must conform with appropriate rules and regulations 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 exceptions are denied. See 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, at 3 n. (1982).