19:0544(72)AR - Marine Corps Logistics Base, Albany, GA and AFGE Local 2317 -- 1985 FLRAdec AR
[ v19 p544 ]
The decision of the Authority follows:
19 FLRA No. 72 MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2317 Union Case No. O-AR-929 DECISION This matter is before the Authority on an exception to the award of Arbitrator H. Ellsworth Steele 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. A grievance was filed and submitted to arbitration challenging management's assignment of a portion of the grievant's duties to military personnel. The Arbitrator concluded that it had not been demonstrated that civilian employees cannot successfully perform the duties in question and that the Activity did not have the right to move duties from a civilian employee position to military personnel without negotiating with the Union. Thus, the Arbitrator determined that the Activity had acted improperly and accordingly ordered as follows: Unless the parties agree otherwise within 60 days from the date of this award, the duties at issue must be returned to civilians. In its exception the Agency contends that the award is deficient as contrary to section 7106(a) of the Statute. The Authority agrees. The Authority has repeatedly recognized that the plain language of section 7106 provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). Therefore, the Authority has consistently held that no arbitration award may improperly deny an agency the authority to exercise its rights under that section or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of these rights. Id.; National Treasury Employees Union and U.S. Customs Service, 17 FLRA No. 12 (1985), U.S. Customs Service, Laredo, Texas and Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. Encompassed within this right is the discretion to determine the particular personnel to whom work will be assigned. E.g., National Treasury Employees Union, Chapter 204 and Federal Election Commission, 19 FLRA No. 25 (1985), slip op. at 2-3. Furthermore, the Authority has consistently found proposals that would limit management's right to assign bargaining-unit work outside the bargaining unit to conflict with management's right to assign work. E.g., International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA 432 (1984) (proposals 1-3); National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (proposal 5). In terms of this case, the Authority similarly finds that the award conflicts with management's right to assign work. By directing that the disputed duties be returned to civilians, the Arbitrator, contrary to section 7106(a)(2)(B), has substituted his judgment for that of management as to whom will be assigned that work. Therefore, the Authority finds that the award is deficient as contrary to management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute. /1/ Accordingly, the award is modified by striking the order of the Arbitrator quoted above. /2/ Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In this regard with respect to the agency policies cited by the Arbitrator, the Arbitrator did not find and it is not apparent that the award is otherwise authorized by such policies. /2/ In view of this decision, it is not necessary that the Authority address other provisions of section 7106(a) raised by the Agency in its exception.