29:0225(20)AR AFGE, LOCAL 1336 VS HHS, SSA
[ v29 p225 ]
The decision of the Authority follows:
29 FLRA NO. 20 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336 Union Case No. 0-AR-1315
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Alvin N. Zachrich filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, we deny the exceptions.
II. Background and Arbitrator's Award
The Arbitrator framed the issue submitted to arbitration as follows:
Was the reprimand of (the grievant) on September 15, 1986, for just cause? If not, what shall the remedy be?
In resolving this issue, the Arbitrator awarded as follows:
The Agency did not have just cause to reprimand the grievant. Grievance sustained. As to the Remedy: The reprimand shall be removed from all records maintained by the Agency. Further, (the grievant) shall be transferred to another module as soon as practical. The transfer to be outside of Section 3 if possible.
In directing that the grievant be transferred, the Arbitrator explained that the record indicated that the grievant's conduct in his assigned module has not been good. Consequently, the Arbitrator considered that a change in his work place would be beneficial by providing the grievant a fresh start and a new opportunity to conduct himself as expected.
III. First Exception
The Agency contends that by directing the Agency to transfer the grievant, the Arbitrator exceeded his authority. Specifically, the Agency maintains that as framed by the Arbitrator, the issue submitted to arbitration was whether the reprimand was for just cause and if not, what shall the remedy be: The Agency argues that by finding that the grievant's reprimand was not for just cause and by ordering that the reprimand be removed from all Agency records, the Arbitrator decided the issue submitted. Thus, the Agency claims that by further ruling that the grievant be transferred, the Arbitrator exceeded his authority by awarding a remedy concerning an issue not submitted to arbitration, namely, the work location to which the grievant is assigned.
In its opposition the Union contends that the Arbitrator did not exceed his authority. The Union argues that in the circumstances presented, the grievant's transfer was an appropriate remedy for the Arbitrator to order.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the Arbitrator exceeded his authority by deciding an issue not submitted. There is no indication in the record before us that the parties by joint stipulation of an issue or by submission agreement specifically precluded the Arbitrator from fashioning the remedy he did. Rather, the Arbitrator framed the issue for arbitration, and he specifically included the question of an appropriate remedy. In his award the Arbitrator sustained the grievance and as the remedy ordered that the grievant's reprimand be removed from the Agency's records and that he be transferred to another module. Thus, contrary to the Agency's contention, the Arbitrator's award concerning the grievant's transfer is directly responsive to and properly confined to the issue as the Arbitrator framed it. Thus, the Agency's exception provides no basis for finding the award deficient. See, for example, Department of Defense Dependents Schools and Overseas Education Association, 13 FLRA 475, 476 (1983).
IV. Second Exception
The Agency contends that the portion of the Arbitrator's award dealing with the grievant's transfer is contrary to section 7106(b)(1) of the Statute. Specifically, the Agency asserts that by directing the grievant's transfer, the Arbitrator's award would require the Agency to adjust the number of employees assigned to two organization subdivisions: the grievant's current work location and the work location to which he would be transferred. The Agency maintains that the parties' collective bargaining agreement demonstrates that the Agency has elected not to bargain on the number of employees assigned to its organizational subdivisions. The Union disputes the Agency's contentions.
B. Analysis and Conclusions
Assuming that the parties' collective bargaining agreement contains no applicable negotiated provision constituting the Agency's election under section 7106(b)(1) to negotiate, we conclude that the Agency has failed to establish that the award concerns a matter which is negotiable only at the election of the Agency under section 7106(b)(1). The Agency has in no manner established that the award is directly or integrally related to the numbers of employees or positions assigned to an organizational subdivision so as to be determinative of such matters. See National Aeronautics and Space Administration, Lewis Research Center and International Federation of Professional and Technical Engineers, Local 28, LESA (AFL - CIO), 17 FLRA 966, 967 (1985). Consequently, the Agency's second exception provides no basis for finding the award deficient.
V. Third Exception
The Agency contends that the portion of the Arbitrator's award dealing with the grievant's transfer is contrary to its right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency maintains that by directing the grievant's transfer, the Arbitrator's award would conflict with its right to assign work in two ways. First, the transfer would negate the Agency's determination that the grievant should be assigned to his current position in Section 3, Module 14. Second, by compelling the Agency to fill another position with the grievant, the Arbitrator's award would prevent the Agency from deciding to assign a different employee or deciding to leave the position vacant. Finally, the Agency argues that the transfer does not enforce a "procedure" under section 7106(b)(2) or an "appropriate arrangement" under section 7106(b)(3) because the parties' collective bargaining agreement contains no s