32:0160(24)AR - - AFGE Local 2924 and Davis-Monthan AFB - - 1988 FLRAdec AR - - v32 p160
[ v32 p160 ]
The decision of the Authority follows:
32 FLRA No. 24
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924
DAVIS-MONTHAN AIR FORCE BASE
Case No. O-AR-1477
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Sara Adler filed by the Department of the Air Force (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. The Union filed an opposition.
The Arbitrator ruled that the Activity violated the parties' agreement when it failed to restructure a Nurse Trainee position for the grievant. As a remedy, the Arbitrator ordered that a Nurse Trainee position be restructured from a Registered Nurse (RN) position and the grievant be assigned to the restructured position.
For the reasons discussed below, we find that the award is contrary to management's rights to determine its organization, assign employees, and assign work under section 7106(a)(1) and (2) of the Statute. Therefore, the award is set aside.
II. Background and Arbitrator's Award
The grievant was a Licensed Practical Nurse who received sufficient training to be state registered as a nurse. She did not qualify for an RN position at the Activity. Although the Activity restructured a position into a Nurse Trainee position for another employee in a similar situation to enable that employee to gain the experience needed to qualify for an RN position, the grievant was not offered a similar opportunity. She filed a grievance alleging harassment and disparate treatment. The matter was submitted to arbitration.
The parties were unable to agree on an issue and stipulated that the Arbitrator should determine the issue. The Arbitrator framed the following issues: (1) Is the grievance arbitrable? (2) If it is, did the Activity violate the agreement in its treatment of the grievant? and (3) If so, what is the appropriate remedy?
The Arbitrator ruled that the grievance was arbitrable to the extent that it concerned the grievant's desire to retain her state registration as a nurse and to be able to obtain an RN position at the Activity.
The Arbitrator then found that the Activity violated Article 30, Section 3 of the agreement. Article 30, Section 3, the equal employment opportunity provision of the parties' agreement, states:
Section 3. The Employer will utilize the present skills of employees to the maximum extent possible, including restructuring of positions, where feasible. The Employer will provide opportunity for employees to enhance their skills through on-the-job training, details, work study programs, upward mobility program, and other training measures so that the employees may perform at their highest potential and advance in accordance with their abilities.
Award at 4.
The Arbitrator found that under Article 30, Section 3, the Activity had "an affirmative obligation to maximize the potential of current employees" and that "[i]t has long failed to take the actions it agreed to, such as restructuring a position." Award at 5. The Arbitrator stated that the restructuring of an RN position to that of Nurse Trainee was not a complex matter and that the procedures in place required that a request for restructuring be made by the appropriate hospital administrator. The Arbitrator ruled that the Activity had failed to meet its obligation to request the restructuring of a position for the grievant after the grievant became state registered.
In considering a remedy, the Arbitrator noted that there was a relatively short period of time for the grievant to complete the additional educational requirements to retain state registration and stated that it appeared to be inconsistent for the grievant to complete those requirements at the same time that she was working in a Nurse Trainee position. Therefore, the Arbitrator ordered the Activity to "restructure an RN position to a Nurse Trainee position so that Grievant can acquire the experience necessary to qualify for an RN position, at such time as the Grievant meets the new state registration requirements, and conditioned on the Grievant's acceptance of the offer of reasonable accommodation to her schooling made by the [Activity]." Award at 6-7.
III. Positions of the Parties
The Agency contends that the Arbitrator's award is deficient because it violates management's rights to determine its organization, to assign work and to assign employees under sections 7106(a)(1) and 7106(a)(2)(A) and (B) of the Statute. The Agency contends that by requiring management to restructure an RN position to a Nurse Trainee position, the award interferes with management's rights to determine its organization and to assign work. The Agency cites American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987) (Provision 8), petition for review as to other matters filed sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988), in which the Authority found to be nonnegotiable a provision which would require management to redesign jobs to create promotion opportunities.
The Agency also contends that the award violates management's right to assign employees under section 7106(a)(2)(A) of the Statute because the award directs the assignment of a particular employee into a restructured Nurse Trainee position. The Agency maintains that there was no showing that the grievant would have been selected for assignment to a restructured position but for management's unwarranted action.
The Union contends that the Arbitrator properly interpreted Article 30, Section 3, a provision which was first negotiated in 1975 and to which the Agency never objected on the ground that it violated management's rights.
The Union maintains that the Arbitrator properly found "that there was a direct causal connection between the agency's unwarranted actions and its failure to give 'Equal Employment Opportunity' treatment to this aggrieved Registered Nurse." Opposition at 2, emphasis in original.
We conclude that the award is deficient. An arbitration award may not interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a). See, for example, Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987). In this case, we find that the award is deficient because it directly interferes with management's rights under section 7106(a).
Provisions which interfere with management's right to determine its organization under section 7106(a)(1) of the Statute are not negotiable. In Marine Corps Logistics Base, the Authority found to be nonnegotiable a provision which contained the following sentence: "The Employer agrees to provide opportunities for employees to improve their skills through . . . other training programs including redesigning jobs where and if feasible so that they may perform at their highest potential and advance in accordance with their abilities." 29 FLRA at 1606. Relying on American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 17 FLRA 790 (1985) (Proposal 4), the Authority held that a proposal which requires management to redesign jobs to create promotion opportunities interferes with the rights to determine organization and to assign work. Therefore, the Authority found that the job redesign portion of the provision interfered with management's rights to determine its organization and to assign work. 29 FLRA 1607-08. Further, the Authority held that the provision did not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because the union failed to establish how the provision related to adverse effects on employees produced by the exercise of management's rights. 29 FLRA 1608.
We find that the Arbitrator's award in the instant case is deficient for the same reasons. The award specifically requires the Activity to restructure a position for the grievant. We find, therefore, on the basis of Marine Corps Logistics Base, that the award improperly interferes with management's right to determine its organization under section 7106(a)(1) and to assign work under section 7106(a)(2)(B) of the Statute.
We also find that the award violates management's right to assign employees. The right to assign an employee to a position includes the discretion to determine which employee will be assigned. Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA 934, 939 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th Cir. June 25, 1987). In Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028, AFL-CIO, 25 FLRA 520 (1987), the Authority found that an award which rescinded the assignment of the grievant to a different shift in a different position with different duties was deficient because it was contrary to man