Internal Revenue Service, Jacksonville District and National Treasury Employees Union (Authority decision, June 6, 1984)

Final FLRA decision. The Authority modified an arbitration award concerning a nonsupervisory GS-12 position and denied the union's exception 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

The IRS laterally reassigned an employee from a supervisory GS-12 job to a nonsupervisory GS-12 bargaining-unit job before he completed supervisory probation. An arbitrator found that the reassignment violated the collective bargaining agreement because competitive procedures had not been used. The Authority rejected the union's claim that the law barred reassignment at the same grade. It agreed with the IRS that the arbitrator's order to fill the position only through competition improperly limited management's selection right. The Authority modified the remedy to require a new selection action under merit promotion and corrective action rules while preserving management's statutory choice of source.

Decision snapshot

• Authority: Management selection right under 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Union exception denied; arbitration remedy modified on the agency's exception.
• Key point: The agency could return the employee to a position at the same grade and retain its statutory selection options.

Full text (FLRA public release)

[ v15 p9 ]

15:0009(2)AR

The decision of the Authority follows:

15 FLRA No. 2

INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
Activity

and

NATIONAL TREASURY EMPLOYEES UNION
Union

Case No. O-AR-378

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Edwin R. Render filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the promotion of a GS-11 revenue officer to GS-12 supervisory revenue officer and his subsequent lateral reassignment to a nonsupervisory GS-12 bargaining unit position before he completed his supervisory probationary period. A grievance was filed and submitted to arbitration challenging the reassignment. The Arbitrator first ruled in disagreement with the Union that the Activity is not precluded from reassigning a supervisory employee who does not satisfactorily complete the prescribed probationary period to a nonsupervisory position at the same grade level. However, the Arbitrator further determined that the Activity's filling of the nonsupervisory GS-12 position in the bargaining unit by lateral reassignment was in violation of the parties' collective bargaining agreement. He ruled that under the agreement the Activity was required to have used competitive procedures. Accordingly, he declared the awarding of the GS-12 position to the reassigned employee a violation of the agreement and directed that if the Activity wanted the position filled at GS-12, competitive procedures must be used.

The Union in its exception to the award essentially contends that the award is contrary to 5 U.S.C. 3321 insofar as the Arbitrator ruled that the activity could permissiveLy reassign the employee to a nonsupervisory GS-12 position despite not having satisfactorily completed his probationary period for the GS-12 supervisory position.

Section 3321 pertinently provides that employees who do not satisfactorily complete the prescribed probationary period for a supervisory or managerial position "shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted." The Union in support of its exception contends as to promotions that the statutory provision requires the employee to be returned to the same grade from which the employee was promoted. To the contrary the Authority finds that section 3321 provides on behalf of the employee a minimum entitlement to be assigned to a position of no lower grade than the position the employee left; the provision in no manner prohibits an agency from assigning such an employee to a position of the same grade as the supervisory or managerial position. See also 5 CFR 315.907. Accordingly, the Union's exception is denied.

The Agency in its exception contends that the award is contrary to section 7106(a)(2)(C) of the Statute. The Authority agrees.

The Authority has expressly held that section 7106(a)(2)(C) provides for management's right to select from among a group of properly ranked and certified candidates for promotion or from any appropriate source. U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983). Therefore, in terms of this case, the award to the extent that it requires the Activity to fill the position competitively is deficient as contrary to section 7106(a)(2)(C) and must be modified accordingly. Therefore, the award is modified to provide the following remedy in place of that ordered by the Arbitrator:

The Activity shall rerun the selection action for the nonsupervisory GS-12 bargaining unit position in this case by announcing the position and proceeding under applicable merit promotion procedures. The rerunning of the selection action by the Activity and the action involving the incumbent employee must fully conform with controlling law and regulation and the parties' collective bargaining agreement. In particular, the action involving the incumbent employee must be in accordance with the corrective action provisions of FPM chapter 335, appendix A, section A-4b. In addition, the filling of the position must be in accordance with section 7106(a) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4.

Issued, Washington, D.C., June 6, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY