37:1304(109)AR - - Navy, Marine Corps HQ and AFGE Council 240 - - 1990 FLRAdec AR - - v37 p1304



[ v37 p1304 ]
37:1304(109)AR
The decision of the Authority follows:


37 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

UNITED STATES MARINE CORPS

HEADQUARTERS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 240

(Union)

0-AR-1816

DECISION

October 29, 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 Jerome H. Ross 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 Commanding General, Quantico, Virginia Marine Corps Combat Development Command was the "head of the activity" for purposes of step 3 of the parties' negotiated grievance procedure. We conclude that the Agency has failed to establish that the award is contrary to section 7106(a) of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In 1987, the Agency determined to reorganize its commissaries. On January 1, 1988, the East Coast Commissary Complex (ECCC) reorganization was implemented resulting in the transfer of all commissary positions from the various base organizations to ECCC. The organizational structure and chain of command of the commissaries were transferred from the base commander to ECCC, with the individual base commissary officers reporting to ECCC rather than to the base commander.

In 1989, the Commanding General, Quantico, Virginia Marine Corps Combat Development Command (MCCDC), returned without action a commissary employee's grievance. The General claimed that it should have been directed to the store manager at step 2 and the commissary officer at step 3 of the parties' negotiated grievance procedure. The Union filed a grievance claiming that the Commanding General remains the "head of the activity" within the meaning of step 3 of the grievance procedure for purposes of grievances by commissary employees at MCCDC. Article 13, Grievance Procedure, of the parties' collective bargaining agreement provides, in relevant part:

c. Step 3. If the grievant is not satisfied with the decision at Step 2, and desires to proceed to Step 3, the employee (or the employee's representative) must submit a grievance in writing to the head of the activity within 10 days after the decision at Step 2 was received by the employee. . . . Within 15 days after receiving the grievance, the head of the activity shall meet with the grievant and the union representative, complete such inquiry as he or she deems necessary and render his or her decision in writing to the grieving employee. . . .

Award at 1.

The matter was not resolved and was submitted to arbitration.

The Agency contended before the Arbitrator that the commissary officer should now be considered the head of activity for the purposes of responding at step 3 of the grievance procedure. The Agency did not dispute that prior to the reorganization, the head of the activity for purposes of responding at step 3 was the Commanding General, MCCDC. Instead, the Agency stated that under the reorganization, the commissary became a separate tenant activity on the base. The Agency maintained that the agreement is reasonably interpreted as designating the commissary officer as the head of the activity for purposes of responding to grievances of commissary employees who are subject to the commissary officer's personnel and administrative decisions. The Agency argued that the grievance procedure guarantees the Union that whatever the activity structure may be, the employee may seek recourse with the activity head at the third and final step of the negotiated grievance procedure. The Agency asserted that the reorganization did not change that recourse; it only changed the identity of the step 2 and step 3 officials. The Agency further asserted that the parties' agreement cannot require that the organizational structure which was in place when the parties' agreement was negotiated not be changed. The Agency contended that the Union's demand that the Commanding General, MCCDC retain the authority to deal with grievances of commissary employees would violate management's right under the Statute to create new activities or to consolidate existing ones.

The Union contended before the Arbitrator that the Agency's actions resulted in violations of law and the parties' agreement. The Union asserted that the Agency had attempted to unilaterally modify the agreement's definition of the term "head of the activity." The Union recognized that the Agency can reorganize and rename any of its organizational components and it can designate its own agents. However, the Union emphasized that because the Marine Corps Base, Quantico, Virginia is clearly defined in the parties' agreement as the activity for purposes of the grievance procedure, the Agency cannot unilaterally change its meaning during the contract term to conform the grievance procedure to its reorganization. The Union observed that the Agency could have complied with the agreement by establishing a designee for the Commanding General, MCCDC.

The Arbitrator stated that his arbitral role in this matter was to determine the meaning of the term "activity" as used in Article 13, Step 3. The Arbitrator concluded that the head of the activity for purposes of responding at step 3 of the parties' grievance procedure at Quantico is the Commanding General, MCCDC.

The Arbitrator noted that the Agency argued persuasively that the commissary officer is responsible for commissary operations, and that to require the Commanding General, MCCDC to take action on matters over which the General has no authority would produce an absurd result. However, the Arbitrator emphasized that his determination does not require the Commanding General, MCCDC to take any action beyond serving as the step 3 official as required under Article 13. The Arbitrator explained that the Commanding General, MCCDC can easily comply with this contractual requirement by simply designating the commissary officer to act as the step 3 official on matters affecting the commissary. The Arbitrator emphasized that he was not usurping management's right to determine its organization. He stated that he had only rendered the agreement drafters' intent: that the step 3 official be at the highest level of the Agency's activities.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award interferes with its right to determine its organization and its right to assign work under section 7106(a)(1) and (2)(B) of the Statute. The Agency argues that, although the Arbitrator disclaims any intent to usurp management's right to determine its organization, the award clearly has the effect of negating management's decision to establish commissaries as separate tenant activities with the commissary officers as the functional and administrative heads of those activities. The Agency maintains that, pursuant to the reorganization, commissary store employees, including management officials, were removed from installation commanders' chain of command. The Agency claims that the Arbitrator's award treats this undisputed reorganization as a nullity by precluding commissary officers from serving as step 3 officials unless installation commanders, officials who exercise no authority over the commissary, elect to designate the commissary officers to act on employee grievances.

The Agency also contends that the Arbitrator's award directly conflicts with management's right to assign work by forcing the installation commander to act at step 3 of the grievance procedure.

B. Union's Opposition

The Union contends that the Agency's exceptions are nothing more than mere disagreement with the Arbitrator's award and are founded on a failure or refusal to recognize the actual issue in the grievance: the employer's failure to have the contractually agreed upon management official respond to the grievance at the appropriate step. The Union claims that the award has no substantive effect on the Agency's reorganization. The Union argues that the Arbitrator went to some lengths to limit his award to compliance with the negotiated grievance procedure. The Union further notes that the Authority has held that the structure of a negotiated grievance procedure is within the duty to bargain notwithstanding management's right to assign work.

IV. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient.(*)

A. The Award Does Not Interfere with the Agency's Right to Determine Its Organization

We conclude that the Arbitrator's award finding that the head of the activity for purposes of responding at step 3 of the parties' grievance procedure at Quantico is the Commanding General, MCCDC does not interfere with the Agency's right to determine its organization. We find that the Arbitrator's award was limited to interpreting the parties' intent in establishing the structure of their negotiated grievance procedure, in particular, the meaning of the term "head of the activity" as used in Article 13, Step 3. Contrary to the Agency's contentions, the Arbitrator's award was limited to that issue; has no substantive effect on the Agency's reorganization; and does not treat the reorganization as a nullity. The Arbitrator's award merely reflects his finding that the agreement drafters intended that the step 3 official be at the highest level of the Agency's activities. The award does not have the effect of negating the Agency's decision to establish commissaries as separate tenant activities. That decision and the reorganization are unaffected.

Accordingly, the Agency fails to establish that the Arbitrator's award is contrary to its right to determine its organization under section 7106(a)(1), and we will deny the exception. See, for example, Association of Civilian Technicians and Pennsylvania National Guard, 29 FLRA 1318 (1987) (award did not conflict with management's right to determine its organization under section 7106(a)(1) because the award preserved management's discretion to establish its organizational structure).

B. The Award Does Not Interfere with the Agency's Right to Assign Work

The Arbitrator's award was limited to interpreting the parties' intent in establishing the structure of their negotiated grievance procedure, in particular, the meaning of the term "head of the activity" as used in Article 13, Step 3. Moreover, the Arbitrator specified that the Commanding General, MCCDC could easily comply with the contractual requirement by simply designating the commissary officer to act as the step 3 official on matters affecting the commissary. We conclude that the Agency fails to establish that the Arbitrator's award is contrary to its right to assign work under section 7106(a)(2)(B). In our view, this one-time action by the Commanding General, MCCDC of designating the commissary officer in order to comply with the Arbitrator's award and the grievance procedure mutually agreed to by the parties is a ministerial action under the Commanding General's plenary au