39:0286(21)AR - - DOD, Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE Local 1827 - - 1991 FLRAdec AR - - v39 p286



[ v39 p286 ]
39:0286(21)AR
The decision of the Authority follows:


39 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY AEROSPACE CENTER

ST. LOUIS, MISSOURI

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1827

(Union)

0-AR-1926

DECISION

January 31, 1991

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 Raymond L. Hilgert. The Arbitrator determined that the parties' placement program for employees whose security clearances had been revoked was unenforceable. Accordingly, he concluded that the Agency had not violated the parties' collective bargaining agreement when it terminated the program.

The Union 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. The Agency filed an opposition to the Union's exceptions.

We conclude that the basis on which the Arbitrator determined the placement program to be unenforceable is deficient under our decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service). Accordingly, we will vacate the award and remand this case to the parties for further proceedings.

II. Background and Arbitrator's Award

In April 1987, the parties' negotiated an agreement for the placement of employees whose required security clearances had been revoked. According to the Arbitrator, the placement program provides, in pertinent part:

POLICY WHEN SECURITY CLEARANCE/ACCESS IS REVOKED

1. The procedure set forth in DoD Regulation 5200.2-R, Personnel Security Program, for revocation of security clearance/access will be completed prior to taking adverse action against an employee on the basis of revocation of security clearance/access.

2. Prior to initiating action to terminate employment, the employee will be considered for reassignment to another position. Reassignment will be effected provided all of the following criteria are met.

a. A vacant position is available commensurate with the employee's personal qualifications and reduced security clearance.

b. No formal disciplinary actions were taken against the employee during the reckoning period. (Past three years for suspensions, past two years for official reprimands.)

c. The employee's performance rating at the time of suspension of clearance/access is Fully Successful or better.

d. Where more than one similarly situated employee qualify for the vacant position, the employee with the earliest service computation date shall be placed.

3. If reassignment cannot be effected, the employee may request voluntary change to lower grade to another position. The employee's request will be honored provided all four of the above criteria are met.

4. Individuals whose employment is terminated because of revocation of security clearance/access are not prohibited from seeking reemployment commensurate with personal qualifications and security clearance/access required.

Arbitrator's Award at 7-8.

On October 16, 1989, the Agency notified the Union that it considered the previously negotiated placement program to be in conflict with management rights under the Statute and that it would no longer comply with the placement procedures outlined in the agreement. The Union filed a grievance over whether the termination of compliance with the placement procedures constituted a violation of the parties' collective bargaining agreement. The grievance was not resolved, and the matter was submitted to arbitration.

Before the Arbitrator, the Agency argued that the placement program was nonnegotiable because the provisions directly and excessively interfered with management's rights under the Statute. The Agency asserted that the placement program imposed an absolute restriction on management's ability to select an individual for a position. The Agency maintained that the program dictated the individual to be hired and did not expressly preserve management's right to determine not to fill a position. The Agency also claimed that the program excessively interfered with management's right to remove employees by placing an indefinite hold on the removal of an employee whose required security clearance has been revoked. Accordingly, the Agency asserted that, as it was nonnegotiable and violative of the Statute, the program was void and unenforceable. The Union argued that the placement program constituted an appropriate arrangement under section 7106(b)(3) of the Statute for employees who have been adversely affected by the Agency's exercise of its management rights. The Union asserted that, as it was negotiable, the program could not be repudiated by the Agency.

The Arbitrator denied the grievance. In agreement with the position of the Agency, the Arbitrator determined that the placement program excessively interfered with the exercise of management's rights under section 7106(a) of the Statute. Accordingly, he concluded that the Agency properly declared the program to be void and unenforceable and that such declaration did not violate the parties' collective bargaining agreement.

III. Positions of the Parties

The Union contends that the award is contrary to the Statute because the Arbitrator applied an incorrect standard in determining that the placement program excessively interfered with management's rights. The Union argues that the Arbitrator was required to apply the factors and standards established by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). The Union maintains that had the Arbitrator duly considered the factors and standards set forth in KANG, the Arbitrator would have found that the program did not excessively interfere with management's rights and was enforceable as an appropriate arrangement under section 7106(b)(3).

The Agency contends that the Arbitrator did analyze the case consistent with KANG and that the Union is merely disagreeing with the Arbitrator's reasoning. The Agency further contends that the Arbitrator correctly determined that the program excessively interfered with management's rights and that no basis is provided for finding the award deficient.

IV. Analysis and Conclusions

We conclude that this case must be remanded to the parties for further processing in accordance with this decision.

After the issuance of the Arbitrator's award and the filing by the parties of their positions in this case, in U.S. Customs Service, 37 FLRA 309, we 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. More importantly, in terms of this case, we also held that, when an arbitrator is presented with a provision that constitutes an arrangement, the arbitrator may not refuse to enforce the provision on the basis of a conflict with management's rights under section 7106 of the Statute unless the provision abrogates a management right. 37 FLRA at 315. See also U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186 (1990); U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816 (1990).

Because the Arbitrator's denial of the grievance is not based on the analysis set forth in U.S. Customs Service, the award is deficient and we will vacate the award. We will remand the case to the parties for resolution. In remanding the case, we find that it is evident that the placement program constitutes an arrangement for employees adversely affected by the exercise of management's rights. However, in denying the grievance, the Arbitrator did not determine how the parties intended the placement program to be applied when an employee's security clearance is revoked. Therefore, we cannot determine whether the placement program, as interpreted and applied by an arbitrator, abrogates the exercise of a management right. Compare U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204 (1990) (Authority enforced an evident arrangement which, as interpreted and applied by the arbitrator, did not abrogate the exercise of a management right). Accordingly, if the matter remains unresolved, the parties may submit the matter to an arbitrator of their choice for resolution of the gr