19:0389(52)AR - New Cumberland Army Depot and AFGE Local 2004 -- 1985 FLRAdec AR
[ v19 p389 ]
The decision of the Authority follows:
19 FLRA No. 52 NEW CUMBERLAND ARMY DEPOT Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2004 Union Case No. O-AR-893 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. According to the Arbitrator, the grievant, a GS-3 payroll clerk, was suspended for 14 days and reassigned to a position of equal grade, and as a result she filed a grievance that was submitted to arbitration. After the grievance was filed but before the arbitration hearing, the grievant's suspension was cancelled. Before the Arbitrator, who stated the issue as whether the grievant's suspension was for just cause, the grievant argued that her reassignment was also punishment because she was reassigned from a position which had promotion potential to GS-5 to a position which had no known promotion potential. The Arbitrator agreed, finding that after the cancellation of her suspension, the Activity continued to punish her and that she was not treated fairly. Accordingly, as his award, the Arbitrator rescinded the reassignment and ordered her promoted to the grades she would have attained if she had not been reassigned. In one of its exceptions, the Activity contends that by rescinding the reassignment, the award is deficient as an interference with management's right to assign employees. The Authority agrees. In Department of Health and Human Services, Social Security Administration, Charlotte, North Carolina District and American Federation of Government Employees, Local 3509, AFL-CIO, 17 FLRA No. 21 (1985), the agency filed exceptions to an arbitration award which rescinded a reassignment of an employee as not in accordance with the collective bargaining agreement, and the agency contended that the award was contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. In particular, the agency argued that the award interfered with its right to assign employees and that the award had no basis in the parties' agreement because the agreement contained no prohibition against the disputed reassignment. In finding the award deficient, the Authority ruled that it was clear that the award interfered with management's right to assign employees by rescinding the assignment of the grievant, and the Authority further ruled that the arbitrator had not enforced a negotiated provision of the parties' agreement providing an appropriate arrangement for employees adversely affected by management's exercise of the authority under section 7106(a)(2)(A) to assign employees. Thus, the Authority held that the prohibition against the reassignment was solely the creation of the arbitrator. Accordingly, the Authority decided that the award, which interfered with management's right to assign employees in the agency and which did not constitute the enforcement of an applicable negotiated appropriate arrangement, was deficient as contrary to section 7106(a)(2)(A) of the Statute. In terms of this case, the Authority concludes that the award is likewise deficient. By rescinding the grievant's reassignment, the award clearly interferes with the Activity's exercise of its right under section 7106(a)(2)(A) to assign employees in the agency. Social Security Administration, Charlotte at 2. Additionally, the Arbitrator did not enforce a negotiated provision of the parties' agreement providing an appropriate arrangement for employees adversely affected by the Activity's exercise of its authority under section 7106(a)(2)(A) to assign employees. Although the Arbitrator expressly ruled that the grievant "was not treated fairly," the Arbitrator cited no provisions of the parties' collective bargaining agreement. Thus, the rescinding of the grievant's reassignment was not founded on any specific negotiated agreement of the parties and was solely the creation of the Arbitrator. Id. at 3. Consequently, the award, which interferes with management's right to assign employees in the agency and which does not constitute the enforcement of an applicable negotiated appropriate arrangement, is deficient as contrary to section 7106(a)(2)(A) of the Statute and accordingly is set aside. /1/ Issued, Washington, D.C., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is unnecessary to address the other exceptions to the award.