United States Department of Transportation, Federal Railroad Administration and American Federation of Government Employees, Local 2814 (Authority decision, July 31, 1984)

Final FLRA decision. The Authority modified an arbitration award under 5 U.S.C. § 7122(a), replacing a directed reassignment with a new selection process. 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 Federal Railroad Administration selected an external candidate for a hazardous materials inspector position in Fort Worth. An arbitrator found that the agency failed to give contractually required special consideration to employees seeking reassignment and considered their moving expenses against them. He ordered the agency to reassign the grievant to Fort Worth and move the incumbent. The Authority held that the directed reassignment and displacement infringed management's statutory assignment and selection rights. It kept the agreement violation but replaced the remedy with an order to rerun the selection under governing law, regulation, and the labor agreement.

Decision snapshot

• Authority: Management assignment and selection rights under 5 U.S.C. § 7106(a)(2)(A) and (C).
• Outcome: Award modified to require a new selection process rather than direct reassignment.
• Key point: An arbitrator could remedy a contract breach without dictating whom management must assign or select.

Full text (FLRA public release)

[ v15 p401 ]

15:0401(84)AR

The decision of the Authority follows:

15 FLRA No. 84

UNITED STATES DEPARTMENT
OF TRANSPORTATION, FEDERAL
RAILROAD ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2814
Union

Case No. O-AR-497

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Seymour Strongin 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 concerned the filling of a GS-12 Railroad Safety Inspector (Hazardous Materials) position in Fort Worth, Texas. The list of "Best Qualified" applicants included two external candidates, i.e., applicants who were not employed by the Agency, and three internal candidates, i.e., Agency employees. The dispute arose when the Agency selected one of the external candidates to fill the position rather than the grievant, the most senior of the internal candidates.

The Arbitrator found that while the Agency had a statutory right to make a selection from any appropriate source, the Agency also had a duty under the parties' collective bargaining agreement to give special consideration in filling vacancies to unit employees who applied for voluntary reassignments to different geographical locations. The Arbitrator determined that the Agency not only failed to give special consideration to the internal candidates for the Fort Worth vacancy as required by the parties' agreement, but considered the fact that it would have to pay the moving expenses of the internal candidates as a reason for their nonselection. The Arbitrator therefore sustained the grievance and directed that the Agency reassign the grievant, if he desires, to Fort Worth with payment of appropriate expenses. The Arbitrator further provided that the Agency could then fill the vacancy created by the grievant's reassignment in an appropriate manner and that the present incumbent of the Fort Worth position could either fill that vacancy or eventually be placed in another available and appropriate position.

In its exceptions, the Agency contends, among other things, that the award violates section 7106(a) of the Statute. The Authority agrees.

It is well-established that an arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement so as to deny the authority of an agency to exercise its statutory rights under 7106(a) of the Statute, or so as to result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA No. 43 (1983). Section 7106(a)(2)(A) of the Statute reserves to management officials the right to assign employees. Section 7106(a)(2)(C) reserves to management the right in filling positions to make selections from among properly ranked and certified candidates or from any other appropriate source.

Thus, in terms of this case, while the Arbitrator had considerable latitude in fashioning a remedy for the Agency's violation of the parties' agreement, his award is deficient in two respects. First, to the extent the award directs the Agency to reassign the grievant to Fort Worth the award is contrary to section 7106(a)(2)(A) and second, to the extent the award directs the Agency to vacate its selection and select the grievant for the Fort Worth position the award is contrary to section 7106(a)(2)(C).

Therefore, the Arbitrator's award is modified to provide the following remedy in place of that ordered by the Arbitrator:

The Agency shall rerun the selection action for the Railroad Safety Inspector (Hazardous Materials) GS-12 position in Fort Worth, Texas. The rerunning of the selection action by the Agency and any action involving the incumbent employee must fully conform with controlling law and regulation and the parties' collective bargaining agreement. More particularly, the rerunning of the selection action and any action involving the incumbent employee must be in accordance with section 7106(a) of the Federal Service Labor-Management Relations Statute and the corrective action provisions of Federal Personnel Manual chapter 335, appendix A, section A-4b.

Issued, Washington, D.C., July 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY