22:0957(96)AR - Naval Undersea Warfare Engineering Station, Keyport, WA and IAM Local 282 -- 1986 FLRAdec AR



[ v22 p957 ]
22:0957(96)AR
The decision of the Authority follows:


 22 FLRA No. 96
 
 NAVAL UNDERSEA WARFARE ENGINEERING 
 STATION, KEYPORT, WASHINGTON
 Activity
 
 and
 
 INTERNATIONAL ASSOCIATION OF 
 MACHINISTS AND AEROSPACE WORKERS, 
 LOCAL 282
 Union
 
                                            Case No. 0-AR-1014
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This case is before the Authority on an exception to the award of
 Arbitrator Eaton H. Conant 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    According to the Arbitrator, the grievance in this case arose when
 the grievant, a union steward, was transferred from the industrial
 engineering department in building 82 of the Activity to the research
 and engineering department of the Activity at a location several miles
 away.  A grievance was filed protesting that this reassignment violated
 Article 7, section 10 of the parties' collective bargaining agreement
 because management failed to consult with the Union concerning the
 transfer between work areas as required by the agreement.  After the
 grievance was filed, the grievant was again reassigned:  first, to the
 building adjacent to building 82 and subsequently, back to building 82,
 his original work area as a steward.
 
    Before the Arbitrator the Activity argued that these subsequent
 reassignments ultimately returning the grievant to his original building
 of assignment operated to ameliorate the inadvertent failure to
 communicate with the Union over the disputed reassignment.  The
 Arbitrator noted that it was not disputed that management violated the
 collective bargaining agreement when it assigned the grievant to the
 research and engineering department several miles away from his previous
 work area assignment.  The Arbitrator also noted that the Union
 contended that management's actions subsequent to the filing of the
 grievance did not ameliorate the violation and that only an award which
 returned the grievant to his original position was tenable.  Although
 the Arbitrator stated that this remedy was complicated by the apparent
 abolishment of the grievant's original position in the industrial
 engineering department, the Arbtrator agreed with the Union.
 Accordingly, as his award, the Arbitrator directed that the grievant be
 returned to his former position in the industrial engineering department
 under the direction of his former supervisor.  The Arbitrator further
 directed that if the former position is not available because of
 substantial job redesign, the grievant will be trained to undertake a
 suitable job in the original work area.
 
                              III.  EXCEPTION
 
                       A.  Contentions of the Agency
 
    As its exception the Agency contends that the award is contrary to
 section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the Agency
 argues that to the extent the Arbitrator's award directs assignment of
 the grievant to a particular position, it interferes with management's
 right to assign work.
 
                        B.  Opposition of the Union
 
    In its opposition the Union concedes that the Arbitrator was not
 authorized to require that the Agency provide training to the grievant.
 However, the Union maintains that the Arbitrator's direction to return
 the grievant to his original position, or a suitable alternative, is not
 contrary to section 7106(a) because it merely constitutes a proper
 enforcement of an applicable procedure or appropriate arrangement of the
 parties' collective bargaining agreement.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    The Authority has consistently recognized that the plain language of
 section 7106(a) provides that "nothing in the Statute shall affect the
 authority" of an agency to exercise the rights enumerated in that
 section.  The 438 Air Base Group, McGuire Air Force Base, New Jersey and
 American Federation of Government Employees, Local 1778, 22 FLRA No. 3
 (1986).  Therefore, the Authority has held that an arbitration award
 under a negotiated grievance procedure may not interpret or enforce a
 provision of a collective bargaining agreement so as to improperly deny
 an agency the authority to exercise its rights under section 7106(a) of
 the Statute.  Id.  Under the language of section 7106(a)(2)(A) of the
 Statute and previous decisions of the Authority, it is clear that
 management has the right to assign employees in the agency.  It is
 equally clear that the award in this case interferes with the Activity's
 exercise of its right to assign employees by rescinding management's
 current assignment of the grievant and directing that he be reassigned
 to his original position or a suitable equivalent.  See 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 103, 104 (1985).  However, in these same
 decisions the Authority has indicated that because management's section
 7106(a) rights are subject to section 7106(b)(2) and (3), /1/ an award
 that is claimed to interfere with rights under section 7106(a) that
 enforces an applicable procedure or appropriate arrangement which has
 been negotiated by the parties may not necessarily be contrary to
 section 7106(a).  Id.
 
    In this case because the award directly interferes with management's
 right to assign employees, we find contrary to the argument of the Union
 that the award does not merely constitute a proper enforcement of an
 applicable procedure of the parties' collective bargaining agreement.
 See National Treasury Employees Union, Chapter 26 and Internal Revenue
 Service, Atlanta District, 22 FLRA No. 30 (1986) (Proposals 1, 2, and
 4).  In directing that the grievant be returned to his original position
 under the direction of his original supervisor, the Arbitrator has not
 enforced the terms of an applicable negotiated appropriate arrangement
 of the parties' agreement.  Although the Arbitrator ruled that
 management had violated the parties' agreement by not consulting with
 the Union concerning the transfer of the grievant, the cited provision
 only pertains to transfers between work areas and work shifts.  The
 provision does not in any respect pertain to assignments of union
 stewards to positions in the agency when the work area remains the same.
  Consequently, once the grievant was reassigned to a building adjacent
 to, and subsequently back to, his original building of assignment, the
 Arbitrator's remedy of directin