45:0906(86)AR - - Army HQ, Army Garrison, Fort A.P. Hill, Bowling Green, Virginia and AFGE Local 2902 - - 1992 FLRAdec AR - - v45 p906
[ v45 p906 ]
The decision of the Authority follows:
45 FLRA No. 86
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to a stipulated award of Arbitrator M. Bernard Keisler filed by the Department of the Army 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 did not file an opposition to the Agency's exceptions.
A grievance was filed over the assignment of additional duties to the firefighters at Fort A. P. Hill. In response to the Arbitrator's suggestion that the parties attempt to settle the grievance, the parties reached an agreement, which became the Arbitrator's "stipulated award."
For the following reasons, we conclude that Paragraph 4 of the award is deficient because it is contrary to law. Accordingly, we will modify the award by striking Paragraph 4.
II. Background and Arbitrator's Award */
In March 1989, the Commander of Fort A. P. Hill issued a new policy requiring that the installation's firefighters assume ambulance driver duties for the period from October 1 to April 15 of each year. Prior to the issuance of this policy, the installation's firefighters were required to respond to emergency service calls after regular working hours and to provide such emergency services to installation structures as plumbing, electrical, and heating maintenance and repair. The new policy stated that during the period in which firefighters were required to assume ambulance duties, they would not be required to respond to service calls.
On April 17, 1991, the Union filed a grievance alleging that the Agency had violated an Agency regulation by assigning to firefighters the duties of responding to service calls and performing emergency medical technician work, in addition to fire fighting. The regulation states that: "[t]he Fire Department will be staffed with enough professional firefighters . . . to combat most anticipated fires . . . ." and "firefighters will not be assigned to duties or details which interfere with fire protection functions . . . ." Exceptions, enclosure 3. The grievance also alleged that the Agency's conduct violated Article 3 of the parties' collective bargaining agreement, but it neither set forth Article 3 nor specifically alleged how that provision was violated. The grievance was not resolved and was submitted to arbitration.
In an attempt to settle the grievance, at the request of the Arbitrator, the parties at the local level reached an agreement. The Arbitrator issued only this agreement as his "stipulated award." Paragraph 4 of the stipulated award states as follows:
Command group, Fort A. P. Hill, agrees to send a letter to the Fort A. P. Hill [Directorate of Engineering and Housing]. This letter will state that during the period firefighters are primarily responsible for ambulance services (normally 1 October-15 April), it will be the firefighters' option to respond to service calls based on the situation. In the event a firefighter determines that they [sic] can not respond to a service call, no adverse or disciplinary action will result to the firefighter.
The Agency contends that Paragraph 4 of the stipulated award "clearly abrogates the agency's right to assign work pursuant to [section] 7106(a)(2)(B) of the Statute." Exceptions at 3. The Agency argues that pursuant to the award, a firefighter will have the "sole discretion" as to whether he will act upon a service call, which could result in not meeting a particular emergency service. Id. The Agency further argues that under Authority precedent the right to assign work includes the right to determine the specific duties to be performed by particular employees. Citing American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1054-56 (1991) (Department of Veterans Affairs), the Agency notes that a proposal that permits employees to "not honor" certain work assignments interferes with management's right to assign work. Similarly, the Agency contends that the award directly interferes with its right to assign work because it conditions the exercise of that right on the employee's discretion to decide whether to perform the work.
The Agency also argues that the award directly interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. Citing various Authority cases, the Agency contends that the award directly interferes with its right to discipline because it precludes management from taking an adverse or disciplinary action against a firefighter who refuses to respond to a service call.
IV. Analysis and Conclusions
The Agency contends only that Paragraph 4 of the award is contrary to law. We conclude that the Paragraph 4 is deficient because it directly interferes with management's rights under section 7106(a)(1)(A) and (B) of the Statute to discipline employees and assign work. Accordingly, Paragraph 4 of the award is contrary to law.
Initially, we note that the award appears to address only the alleged violation of the Agency regulation quoted in the grievance. In the absence of any discussion in the grievance or the award of the alleged violation of the parties' agreement, we conclude that the Arbitrator was not enforcing an appropriate arrangement negotiated by the parties. Accordingly, we will not apply the standard set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990), for assessing whether an award enforcing a negotiated appropriate arrangement is contrary to law. Rather, we will determine whether the award is contrary to law because it directly interferes with management's rights set forth in the Statute.
Management's right under section 7106(a)(2)(B) of the Statute to assign work includes the right to require that employees perform specific duties. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 816-20 (1990). By conditioning the assignment of service call work to firefighters on the decisions of individual firefighters whether to respond to service calls, Paragraph 4 of the award directly interferes with the Agency's right to assign that work. See Department of Veterans Affairs, 40 FLRA at 1056; Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 401, 405 (1990). Consequently, the award is deficient in this respect.
An arbitration award will also directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, and thereby be deficient, if it precludes an agency from imposing lawful discipline under certain circumstances. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 35 FLRA 1146, 1153 (1990), petition for review dismissed, 951 F.2d 276 (10th Cir. 1991). As Paragraph 4 of this award precludes the Agency from imposing any discipline on firefighters based on their refusals to respond to service calls, the award is clearly deficien