22:0475(48)AR - Southwestern Power Administration and IBEW Local 1002 -- 1986 FLRAdec AR



[ v22 p475 ]
22:0475(48)AR
The decision of the Authority follows:


 22 FLRA No. 48
 
 SOUTHWESTERN POWER ADMINISTRATION
 Activity
 
 and
 
 INTERNATIONAL BROTHERHOOD OF 
 ELECTRICAL WORKERS, LOCAL 1002
 Union
 
                                            Case No. 0-AR-1062
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator John P. Owen 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed and submitted to arbitration claiming that the
 performance by a general foreman of switching duties, which is work
 regularly performed by bargaining-unit employees, violated Article
 XXIII, Section 23.1 of the parties' collective bargaining agreement.
 Article XXIII, Section 23.1 pertinently provided that a general foreman
 shall not normally perform bargaining-unit work except in situations
 such as checking the work of others, training of employees, and when
 life or property is in danger and there are no other qualified persons
 available to do the work.  The Arbitrator determined that the
 performance by the general foreman of the switching duties in dispute
 was clearly prohibited by the parties' agreement because none of the
 exceptions provided applied.  Consequently, he ruled that the Activity
 had violated the agreement.  In so ruling he rejected the Activity's
 argument that such a determination was inconsistent with management's
 right to assign work in accordance with section 7106(a)(2)(B) of the
 Statute.  He concluded in this respect that although the Statute
 reserves to management the right to assign work, "it does not prevent an
 Agency from voluntarily relinquishing that right under negotiated
 conditions." Accordingly, as his award, the Arbitrator sustained the
 grievance and directed that the Activity refrain from assigning
 bargaining-unit work to general foremen and nonbargaining-unit personnel
 except as provided in Article XXIII, Section 23.1 of the collective
 bargaining agreement.
 
                              III.  EXCEPTION
 
    In its exception the Activity contends that the award is deficient
 because the Arbitrator was not authorized to order the Activity to
 refrain from assigning bargaining-unit work to general foremen and other
 nonbargaining-unit personnel.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    Contrary to the conclusion of the Arbitrator, the Authority has
 repeatedly indicated that management rights under section 7106(a) cannot
 be waived or relinquished through collective bargaining.  See
 Professional Air Traffic Controllers Organization and Federal Aviation
 Administration, 5 FLRA 763, 768 (1981).  The Authority has consistently
 emphasized 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.  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).  Thus,
 the Authority has specifically held that no arbitration award may
 interpret or enforce a collective bargaining agreement so as to
 improperly deny an agency the authority to exercise its rights under
 that section.  172d Infantry Brigade, Fort Richardson, Alaska and
 American Federation of Government Employees, Locals 1712, 1834 and 1949,
 19 FLRA No. 71 (1985).  Section 7106(a)(2)(B) of the Statute, in
 particular, reserves to management officials the authority to assign
 work.  In American Federation of Government Employees, AFL-CIO, National
 Joint Council of Food Inspection Locals and Department of Agriculture,
 Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982),
 the Authority considered a proposal (proposal 1) which provided, in
 part, that management could not assign duties normally performed by
 employees in the bargaining unit to supervisors except in specific
 circumstances.  The Authority found that this disputed portion of the
 proposal conflicted with management's right to assign work because it
 would improperly limit management's discretion to determine which
 personnel will receive particular work assignments.
 
    In this case the Arbitrator directed that the Activity refrain from
 assigning bargaining-unit work to general foremen and other
 nonbargaining-unit personnel on the basis of his determination that the
 collective bargaining agreement prohibited such assignments.  The
 Authority concludes that the Arbitrator's award is therefore deficient
 as contrary to section 7106(a)(2)(B) by interpreting and enforcing the
 collective bargaining agreement so as to improperly interfere with
 management's discretion to determine which personnel will receive
 particular work assignments.  See 172d Infantry Brigade;  Department of
 Transportation, Federal Railroad Administration, Alaska Railroad and
 United Transportation Union, 16 FLRA 582 (1984).
 
                               V.  DECISION
 
    For these reasons, the award is modified by striking the direction to
 the Activity pertai