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60 FLRA No. 139
National Treasury Employees Union Chapter 207 and Federal Deposit Insurance Corporation (Krendel, Arbitrator) 0-AR-3850 (Decided March 14, 2005)
The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement by not reassigning the grievant to either of two different vacant positions. The Authority found that the award was deficient and set it aside.
The Authority found that the award evidenced disregard of the parties' agreement and it was found to be deficient under §§ 7122(a)(2) of the Statute. Regarding the allegation of past practice, the Authority found that the record was insufficient to establish that the non-selection of the grievant was based on a past practice that modified the terms of the parties' agreement.
The Authority further noted that because the effect of the decision, setting aside the award, would sustain the grievance, the issue of remedy had to be addressed. The Authority directed the Agency to select the employee for the next available position for which he was qualified, as such a remedy constituted a reconstruction of what the Agency would have done had it not violated the parties' agreement.