37:0566(42)AR - - Veterans Affairs, Medical Center, Providence, RI and LIUNA Local 1056 - - 1990 FLRAdec AR - - v37 p566
[ v37 p566 ]
The decision of the Authority follows:
37 FLRA No. 42
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
PROVIDENCE, RHODE ISLAND
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA
September 26, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Harry B. Purcell. A grievance was filed over the Activity's changes in the position description for the position of carpenter. The Arbitrator sustained the grievance and ordered that the changes in the carpenter position description not be implemented until the parties negotiate a resolution of the dispute.
The Activity filed an exception 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 Activity's exception.
We conclude that the award must be modified to limit bargaining to the impact and implementation of the changes.
II. Background and Arbitrator's Award
In May 1988, the grievant, a carpenter, WG-4607, protested the assignment of masonry removal work because it was not part of his position description. On June 9, 1988, the Activity's chief of engineering service approved a "redescription" for the position of carpenter, WG-4607. Award at 2. In addition to language changes, the "redescription" added the following language: "repair of gutters and downspouts, and removal of masonry, sheet rock, or plastered walls and ceilings" and "Performs other duties as assigned by the Buildings Unit Supervisor that revolve around the work scope of the unit." Id.
The Union filed a grievance. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the Activity violated the parties' agreement when it changed the carpenter position description.
The Arbitrator sustained the grievance. The Arbitrator found that the Activity's action was arbitrary, capricious, and discriminatory, in violation of the agreement, and that the Activity failed to notify the Union president in advance of the changes as required by the agreement. As a remedy, the Arbitrator ordered as follows:
The remedy hereby ordered by this Award is that the Redescription of the job classification of Carpenter, issued June 9, 1985 [sic] (Joint Exhibit No. 7) shall not be implemented from the date this Award is received by the Parties but the same shall be held in abeyance pending a resolution of the dispute by the Company and the Union through collective bargaining which negotiations shall be conducted in good faith.
Id. at 10.
III. Positions of the Parties
In its exception, the Activity contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Activity maintains that the award requires it to negotiate about duties prior to assigning them. The Activity argues that the award prohibits management from making any changes in the duties in a position description without first negotiating over the changes with the Union. The Agency asserts that to the extent that the award requires bargaining over the assignment of work, the award is deficient.
In its opposition, the Union contends that the award is not contrary to management's right to assign work under section 7106(a)(2)(B). The Union argues that the award does not prevent the Activity from assigning new duties to the carpenter position description, but only requires the Activity to observe the collective bargaining agreement and stay implementation of the changes pending compliance with the agreement. The Union maintains that this case is governed by International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 21) (International Plate Printers), in which the Authority found negotiable a provision requiring the agency to negotiate about the impact and implementation of a decision to impose additional work requirements on unit employees.
IV. Analysis and Conclusion
We conclude that the award is deficient as contrary to section 7106(a)(2)(B) of the Statute to the extent that it subjects to negotiations the Activity's decision to change the carpenter position description by adding additional duties and to assign such additional work to carpenters.
We find that by requiring negotiations over the decision to add duties to the carpenter position description and to assign such duties to the grievant, the award conflicts with management's right to assign work. See, for example, National Association of Government Employees, SEIU, AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA 801 (1987) (Proposal 2). However, the Activity fails to establish any basis for finding a delay in implementing the position description changes or bargaining over the impact and implementation of the changes to be contrary to section 7106(a)(2)(B). See American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979) (Proposal II), enforced as to other matters sub nom. DOD v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) (proposal found to be negotiable that would delay the assignment of work until the position description is changed when the agency decides to add unrelated duties to a position to be performed regularly); International Plate Printers, 25 FLRA at 129 (the obligation to negotiate procedures and appropriate arrangements when an agency imposes the assignment of additional duties that constitutes a change in conditions of employment does not violate management's rights under section 7106(a) of the Statute). See generally National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA No. 26 (1990) (discussing the duty to bargain over an agency's decision to change a condition of employment that constitutes the exercise of a management right and the obligation of an agency to maintain the status quo during the bargaining process except in specified circumstances).
Accordingly, we will modify the award to provide for bargaining only on the impact and implementation of the changes.(*) See Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347 (1984) (award was found to be contrary to section 7106(a) to the extent that it ordered bargaining on the agency's decision to change incentive award criteria; award was modified to provide for bargaining only on the impact and implementation of the changes).
The remedy in the award is modified to provide as follows:
The remedy hereby ordered by this Award is that the Redescription of the job classification of Carpenter, issued June 9, 1988 (Joint Exhibit No. 7) shall not be implemented from the date this Award is received by the Parties but the same shall be held in abeyance pending negotiations, if requested by the Union, on the impact and implementation of the Redescription, in accordance with law, regulation, and the parties' collective bargaining agreement.
(If blank, the decision does not have footnotes.)
*/ Neither the parties nor the Arbitrator considered provisions of the agreement governing the dispute to be arrangements for employees adversely affected by the exercise of management's rights and it is not otherwise apparent that the provisions constitute such arrangements. Moreover, the remedy ordered by the Arbitrator of negotiating a resolution of the dispute does not constitute an enforcement of an arrangement for employees adversely affected by the exercise of any management right. Accordingly, we have not applied the approach set forth in our recent decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA No. 20 (1990).