34:0877(146)AR - - AFGE Local 12 and Labor - - 1990 FLRAdec AR - - v34 p877



[ v34 p877 ]
34:0877(146)AR
The decision of the Authority follows:


34 FLRA No. 146

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12

(Union)

and

UNITED STATES DEPARTMENT OF LABOR

(Agency)

0-AR-1604

DECISION

February 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Leon B. Applewhaite 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that the Agency violated the parties' collective bargaining agreement and the policies of the Civil Service Reform Act and the Federal Personnel Manual (FPM) by reassigning the grievant from the International Labor Affairs Bureau (ILAB) to the Women's Bureau. The Arbitrator directed the Agency to reassign the grievant to his former position at the ILAB or to another comparable position within the Agency.

For the reasons that follow, we find that the Arbitrator's award is deficient because it is contrary to section 7106(a)(2)(A) of the Statute.

II. Background and Arbitrator's Award

In order to avoid a reduction-in-force in the ILAB, the Agency reassigned 23 ILAB employees, including the grievant, to other bureaus within the Agency. The grievant had been a GS-14 International Program Development Specialist in the ILAB. He was reassigned to the Agency's Women's Bureau as a GS-14 Social Science Advisor. The grievant suffered no loss in grade or pay as a result of the reassignment.

The grievant was scheduled to start work in the Women's Bureau on February 9, 1986. On February 7, 1986, he requested a copy of his position description. Because no position description existed at that time, the grievant was given a GS-13 position description until a modified one could be supplied. He was given a GS-14 position description on March 14, 1986.

The grievant filed a grievance and the matter was submitted to arbitration. The issue presented to the Arbitrator was:

Whether [the grievant's] reassignment without loss in grade or pay in February, 1986 violated law, regulation or contract.

Award at 2.

The Union asserted that the grievant's reassignment violated: (1) the merit system principles of the Civil Service Reform Act of 1978; (2) the requirements of FPM chapter 511, subchapter 1-6.a; and (3) the parties' collective bargaining agreement. Award at 6. The Agency argued that the grievant was qualified for the reassignment and that the reassignment was made in accordance with decisions of the Merit Systems Protection Board. Award at 7. The Agency also argued that the reassignment involved the exercise of a management right under section 7106(a)(2)(A) of the Statute and that the reassignment did not violate the contract. Id.

The Arbitrator determined that management's decision to reassign the 23 employees was "a bona fide determination based on legitimate management considerations in the interests of the service." Award at 9. The Arbitrator then examined the procedure that the Agency followed in reassigning the grievant. The Arbitrator found that the Agency did not follow the procedural safeguards set forth in the FPM and the agreement in effectuating the reassignment.

The Arbitrator noted that pursuant to FPM chapter 511, subchapter 1-6.a, a position must be in existence before an employee can be reassigned to it. The Arbitrator found that there was no position description in existence for a GS-14 Social Science Advisor available to the grievant until he had worked in the new bureau for approximately 1 month. The Arbitrator concluded that although it was "certainly arguable that the nonexistence of a position to which Grievant was reassigned violates the letter and policy of the FPM . . . such a scenario . . . does not constitute an automatic reinstatement of Grievant to his former position, without a clear violation of the contractual agreement." Award at 10.

The Arbitrator then determined that the Agency's reassignment of the grievant and the other employees constituted an organizational change which, under Article 4, Section 7 of the parties' agreement, required "meaningful consultation and communication" between management and the Union before the change was implemented. Award at 11. The Arbitrator found that the Agency failed to comply with the contractual requirement of "meaningful consultations." Award at 14.

The Arbitrator concluded that the Agency violated the "policies of the Civil Service Reform Act of 1978 and the [FPM]" and the parties' contract. Id. The Arbitrator stated that the Agency's decision to reassign the grievant "was done in a procedurally defective manner" and ordered the Agency to reassign the grievant to "his former position at ILAB, level GS-14, or another position within the Department that is comparable." Id.

III. Agency's Exceptions

The Agency contends that the award violates management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency cites Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986) (Keyport), in which the Authority set aside an award which directed management to rescind the current assignment of an employee and to reassign him to his original position. The Agency asserts that in Keyport the Authority held that an arbitrator could not base such an award on a contractual provision requiring the parties to consult concerning transfers between work areas because that provision "'was not founded on any specific negotiated agreement' concerning reassignment within a work area." Exceptions at 5, quoting Keyport, 22 FLRA at 960.

The Agency contends that, as in Keyport, the Arbitrator's award in this case is not based on a specific negotiated agreement provision. According to the Agency, the provision of the agreement (Article 4, Section 7) relied on by the Arbitrator to order the grievant's reassignment to ILAB "had nothing to do with management's right of reassignment within a work area." Exceptions at 5. The Agency states that Article 4, Section 7 "concerns only labor-management consultations and does not relate in any way to the reassignment of employees and contains no language restricting the [A]gency's right to reassign. Thus, the Arbitrator's [award ordering] the reassignment of the grievant was not based on a specific negotiated agreement of the parties[.]" Exceptions at 6-7. The Agency claims, therefore, that "[b]ecause the arbitrator's award does not involve the enforcement of an applicable negotiated agreement under section 7106(b), the award unlawfully interferes with management's right to assign employees [under] section 7106(a)(2)(A)." Exceptions at 7.

IV. Union's Opposition

The Union contends that the Arbitrator's award was proper. According to the Union, management's reassignment of the grievant to a position without a position description violated the FPM and, therefore, "constitutes a prohibited personnel practice and an unlawful exercise of Management's right to assign employees" under section 7106(a)(2)(A) of the Statute. Opposition at 10.

The Union also asserts that the Arbitrator's award constitutes a proper enforcement of an applicable procedure provided for by Article 4, Section 7 of the parties' collective bargaining agreement. The Union disputes the Agency's contention that Article 4, Section 7 concerns only labor-management consultations and does not relate to the reassignment of employees or restrict the Agency's right to reassign.

V. Discussion

An arbitration award 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. Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987). As the Authority consistently has acknowledged, management's rights under section 7106(a) are subject to section 7106(b)(2) and (3) of the Statute. Thus, an award that enforces an applicable negotiated procedure or an appropriate arrangement is not deficient as contrary to section 7106(a). The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988); Office of Personnel Management and American Federation of Government Employees, AFL-CIO, Local 32, 19 FLRA 39, 40-41 (1985).

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to decide the particular position to which an employee will be assigned. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40, 43 (1987). The award in this case requires management to rescind its current assignment of the grievant in the Women's Bureau and to reassign the grievant to his former position in the ILAB or to another comparable position in the Agency. Therefore, the award interferes with management's right to assign employees to positions under section 7106(a)(2)(A) of the Statute, unless, as the Union claims, the award should be sustained because the reassignment violates applicable laws or because the award enforces a procedure which has been negotiated by the parties.

The Union first argues that the award is proper because management's reassignment of the grievant to a position for which there was no position description constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(11). The Union asserts that the grievant's reassignment violated FPM provisions which "implement [and] directly concern" merit system principles, including those which state that "'[a]ll employees should receive fair and equitable treatment; . . . the work force should be used efficiently and effectively; . . . employees should be retained on the basis of adequacy of performance; . . . [and] employees should be protected against arbitrary action.'" Opposition at 7-8 n.5, quoting 5 U.S.C. § 2301.

We do not agree with the Union that management's delay in providing the grievant with the position description requires a conclusion that the Agency committed a prohibited personnel practice. Rather, the failure to provide the appropriate position description was caused by management's desire to assign the grievant to a position of comparable grade during an unavoidable reassignment. This conclusion is consistent with the Arbitrator's findings that: (1) the Agency's decision to reassign the grievant was based on a "bona fide determination based on legitimate management considerations in the interests of the service"; (2) the grievant was given a GS-13 position description upon reassignment until a modified GS-14 position description could be provided to him; (3) the GS-14 position description was supplied to him approximately 1 month later; and (4) the grievant suffered no loss in grade or pay. Award at 2, 6, and 9.

With regard to the Union's second argument, we agree that Article 4, the provision the Arbitrator found was violated in this case, constituted a negotiable procedure. We further find, however, that the terms of that provision do not prescribe standards governing the Agency's right under section 7106(a)(2)(A) of the Statute to reassign employees. In fact, Article 4 requires only that the Agency consult with the Union on a proposed organizational change. Nothing in Article 4 addresses the assignment of employees. Moreover, nothing in that provision dictates a course of action to be followed if the Agency fails to consult prior to a proposed organizational change. Thus, although the Agency may have failed to comply with the procedures set forth in Article 4, this failure cannot justify an award requiring a reassignment. Compare Michigan Air National Guard, Adjutant General of Michigan, Department of Military Affairs and Michigan State Council of the Association of Civilian Technicians, 30 FLRA 165 (l987) (arbitrator's award ordering that grievant be assigned to the alert function tour of duty did not violate management's right to assign work but rather enforced a negotiable procedure concerning the assignment of employees to that tour of duty).

Consequently, the Arbitrator's remedy directing the Agency to reassign the grievant to his former position or a suitably equivalent position was not founded on a specific negotiated agreement of the parties. Accordingly, thi