---

16 FLRA NO. 145

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1546

     Union

     and

SHARPE ARMY DEPOT, DEPARTMENT OF
THE ARMY, LATHROP, CALIFORNIA

     Activity

Case No. 0-AR-779

 

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Leo Kanowitz 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 dispute in this matter concerns the filling of a supervisory physical science technician position. The Arbitrator first determined that the grievance over the filling of a supervisory position was arbitrable under the parties' collective bargaining agreement. On the merits the Arbitrator determined that the Activity violated proper procedures in filling the position. Accordingly, the Arbitrator ordered that the selection action for the position be cancelled, the position be reannounced, and proper procedures be followed in filling the position.

As one of its exceptions the Agency essentially contends that the award is deficient by ordering that the position be vacated in advance of corrective action. The Authority agrees.

The Authority was repeated 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. [ v16  p1122 ] 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, paragraph 3 of the award is modified to provide as follows: 1

3) The Activity shall rerun the selection action for the supervisory physical science technician position. 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 with the parties' collective bargaining agreement.

See Defense Contract Administration Services Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of Government Employees, Local 2752, AFL - CIO, 10 FLRA 547, 548-49 (1982).

 

Issued, Washington, D.C., December 27, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v16  p1123 ]

FOOTNOTES

Footnote 1 In its other exception the Agency contends that the Arbitrator's determination that the grievance was arbitrable is contrary to the agreement. This exception however constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and accordingly this exception is denied. See American Federation of Government Employees, AFL-CIO and Equal Employment Opportunity Commission, 15 FLRA No. 63 (1984).

---