38:0270(30)AR - - VA Medical Center, Marion, IL and AFGE Local 2483 - - 1990 FLRAdec AR - - v38 p270
[ v38 p270 ]
The decision of the Authority follows:
38 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 21, 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 Milton T. Edelman. The Arbitrator found that management violated the parties' collective bargaining agreement by detailing the grievant to a position in the Activity's grounds section. The Arbitrator directed management to make the grievant whole by paying him the premium pay he would have received if he had not been improperly detailed.
The Department of Veterans Affairs (the Agency) filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations on behalf of the Activity. The Union filed an opposition to the Agency's exceptions.
We conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is a boiler plant operator at the Activity's facility. An inspection of the Activity's boilers showed that they had been tampered with and could have exploded. Several management officials met and decided that immediate action had to be taken to prevent further tampering and the explosion such tampering might cause. The grievant was detailed to the Activity's grounds section because the management officials at this meeting felt that he "was the most likely suspect" to have tampered with the boilers. Award at 2. The grievant filed a grievance over whether the detail was in accordance with pertinent law, regulations, and provisions of the parties' collective bargaining agreement. The grievance was not resolved, and the matter was submitted to arbitration.
The Arbitrator first ruled that the grievance was not rendered moot by the dismissal of an unfair labor practice charge filed by the Union.
Next, the Arbitrator examined the evidence that the grievant was the most likely suspect to have tampered with the boilers. The Arbitrator found that there was "insufficient evidence to support a finding that [the grievant] had a motive to damage the Boiler Plant." Id. at 10. He also found that the evidence concerning the grievant's opportunity to tamper with the boiler controls was not convincing in light of the fact that the grievant was not on duty around the time the tampering was discovered. Consequently, he concluded that the evidence before him raised serious doubts that the grievant was the most likely suspect.
The Arbitrator then examined the options and obligations management had under its regulations and the parties' collective bargaining agreement. According to the Arbitrator, Article 16, Section 1 of the parties' agreement pertinently provides that management may detail employees only "for a specified period[.]" Id. at 12. He also noted that this section of the agreement states that details "'are intended only for meeting temporary need [sic] of the Agency's work requirements, when necessary services cannot be obtained by other desireable [sic] or practicable means.'" Id.
The Arbitrator found that the grievant's detail was improper under the agreement. The Arbitrator concluded that the grievant "was detailed to get him out of the boiler room, not primarily to provide additional services to the ground crew." Id. at 11-12. Moreover, he found that the grievant was detailed indefinitely and not for a specified period, as required by Article 16, Section 1. Consequently, the Arbitrator sustained the grievance and directed management to pay the grievant "the premium pay he would have received had he worked his regular tour in the boiler room[.]" Id. at 14. He also directed management to revoke the detail and remove all mention of it from the grievant's personnel file.
III. First Exception
A. Positions of the Parties
The Agency contends that the award contravenes its right under section 7106(a)(2)(A) of the Statute to assign employees. The Agency maintains that the Authority has consistently held that an arbitrator may not interpret a collective bargaining agreement so as to deny a management right under section 7106(a) of the Statute. Specifically, the Agency argues that the Authority has held that provisions in collective bargaining agreements that "restrict management's assignment of employees to details are violative of section 7106(a)(2)(A)." Exceptions at 4. The Agency also argues that the Authority has held that the inclusion in a collective bargaining agreement of a phrase that would require management to keep details of employees "to an absolute minimum" contravenes management's rights to direct employees and assign work because such a provision would subject the exercise of management's rights to arbitral review. Accordingly, the Agency asserts that the Arbitrator violated the Statute by rescinding the detail.
The Union contends that the award does not contravene management's right to detail its employees. The Union notes that the Arbitrator found that the detail was not in accordance with the parties' agreement. Consequently, the Union contends that this exception constitutes an attempt to relitigate the underlying dispute between the parties before the Authority.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to law.
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we recently reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.
Applying that approach in this case, we conclude that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute. It is evident that Article 16, Section 1 constitutes an arrangement and, as interpreted and applied by the Arbitrator, does not abrogate management's right to assign or direct its employees.
Article 16, Section 1 provides that management must assign employees to details for a definite period of time and for the purpose of meeting the temporary work needs of the Agency. It is clear that Article 16, Section 1 constitutes an arrangement for employees adversely affected by management's exercise of its right to assign its employees by details to other positions. In this regard, the Arbitrator found that this provision gave protection to employees by limiting details to a specified period only and for the purpose of meeting temporary needs of the Agency's work requirements.
Furthermore, we find that as interpreted and applied by the Arbitrator, Article 16, Section 1 does not abrogate management's rights. In U.S. Customs Service, we held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. 37 FLRA at 314. Article 16, Section 1, as interpreted and applied by the Arbitrator certainly limits management's right to assign employees to details in situations where management may have some non-work related reason for detailing a particular employee, but it clearly does not abrogate the exercise of that right. Management's right to detail its employees in situations where there are valid work-related reasons for doing so remains unaffected. Accordingly, we deny the Agency's exception.
IV. Second Exception
A. Positions of the Parties
The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. º 5596, and must be set aside. The Agency argues that because the award is based on a collective bargaining agreement provision that conflicts with section 7106(a)(2)(A) of the Statute, there was no unwarranted or unjustified personnel action on which to base the award of premium pay under the Back Pay Act.
The Union contends that the Arbitrator properly awarded backpay.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act. We reject the Agency's contention that there was no unjustified or unwarranted personnel action on which to base the award of premium pay under the Back Pay Act. Contrary to the Agency's contention, and for the reasons set forth with respect to the first exception, the award was not improperly based on an agreement provision that conflicts with section 7106(a)(2)(A). Accordingly, the Arbitrator's determination that the grievant's detail was improper under the agreement constituted the requisite finding under the Back Pay Act that the grievant was affected by an unjustified or unwarranted personnel action.
Moreover, it is obvious that the unwarranted detail directly resulted in the loss of the premium pay the grievant would have received while working his regular shift. The Arbitrator quoted the Activity as stating that it was ready "to reconstruct the grievant's tour-of-duty in the Boiler Plant to determine what premium pay [the grievant] would have earned had he actually worked his regular tour rather than being detailed[.]" Award at 13. Accordingly, the Arbitrator made the findings required by the Back Pay Act to order the grievant "be made whole by being paid the premium pay he would have received had he worked his regular tour in the boiler room rather than being detailed to the grounds section." Id. at 14. Consequently, the Agency's exception provides no basis for finding the award deficient. See, for example,