American Federation of Government Employees, AFL-CIO, Local 3824 (Union) and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado (Agency)

[ v56 p518 ]

56 FLRA No. 80

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3824
(Union)

and

U.S. DEPARTMENT OF ENERGY WESTERN
AREA POWER ADMINISTRATION
GOLDEN, COLORADO
(Agency)

0-AR-3289

_____

DECISION

July 28, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John Phillip Linn filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance challenging the directed reassignment of a grievant.

      After the Arbitration award issued, the Authority found, as relevant here, that the Agency violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with prior notice and an opportunity to bargain over the impact and implementation of the reassignment. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 56 FLRA 9 (2000) (WAPA). To remedy the violation, the Authority ordered the Agency to rescind the reassignment of the grievant and to offer him reinstatement to the position he occupied prior to the directed reassignment. In addition, the Authority directed the Agency to notify the Union of any intent to direct the reassignment of the grievant and, upon request, negotiate over the impact and implementation of that reassignment.

      For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions. [ v56 p519 ]

II.     Background and Arbitrator's Award

      This case arose in the course of the reorganization of the Agency. By letter dated February 24, 1998, the Agency notified the grievant that he would be assigned from his position as Electrical Engineer, GS-850-14, at Golden, Colorado to a position as Electrical Engineer, GS-850-14, in the Desert Southwest, Office of Regional Manager, with duty station in Phoenix, Arizona. In this new position the grievant would serve as the Maximo Project manager for the Maximo system, a new maintenance management information system intended to improve the cost-effectiveness of the Agency's maintenance and construction functions.

      The letter stated that, if the grievant declined the reassignment, the Agency would separate him from Federal Service, pursuant to "the negotiated agreement." Award at 2. The grievant accepted the directed reassignment under protest and filed a grievance challenging it. The grievance was submitted to arbitration, on the following stipulated issues:

1.     Was the directed assignment of [the grievant] taken for a legitimate managerial reason?
2.     If not, what is the appropriate remedy?

Id.

      The Arbitrator concluded that the directed reassignment of the grievant was based on legitimate managerial reasons. The Arbitrator found that the reassignment of the grievant was not intended to coerce the grievant to resign. Rather, the Arbitrator found that the Agency recognized that the grievant's skills "qualif[ied] him for the work essential to the success of the Maximo project." Id. at 18. The Arbitrator added that the Agency's location of the position in Phoenix, Arizona was based on, among other things, the "basic principle of decentralization." Id.

      In reaching his conclusion, the Arbitrator rejected the Union's argument that the recommended finding of an unfair labor practice (ULP) by the Judge in WAPA established that the directed reassignment of the grievant was for illegitimate reasons. The Arbitrator stated that, although he found no fault with the decision of the Judge, the "decision lacks the finality essential to a granting of deference and addresses an issue outside the scope of the issue in arbitration." Id. at 19. Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that, because of the ULP found in WAPA, the directed reassignment of the grievant in this case was for illegitimate managerial reasons. Exceptions at 2. The Union relies on a decision by the Authority in U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 981-86 (1990) (Scott Air Force Base), and a decision by the Merit Systems Protection Board (MSPB) in Gragg v. Department of the Air Force, 24 M.S.P.R. 506 (1984) (Gragg).

      The Union requests that the Authority reverse the Arbitrator's decision and remand the case "to ensure that [the grievant] receives full relief." Exceptions at 3.

B.     Agency's Opposition

      The Agency disputes the Union's contention that, because of the ULP found in WAPA, the directed reassignment of the grievant in this case was for illegitimate managerial reasons. The Agency asserts that the related ULP charge "addressed only the means of implementing the reassignment and not the reasons for the directed reassignment." Opposition at 5.

      In addition, the Agency contends that the Authority's decision in Scott Air Force Base and the MSPB's decision in Gragg are different from this case. Furthermore, the Agency challenges the Union's request to the Authority to remand this case to ensure that the grievant receives full relief. In this regard, the Agency states that "[i]nterjecting the unfair labor practice issue into this arbitration for enforcement purposes can result in no remedy that the Union can not gain from the unfair labor practice process." Opposition at 5.

IV.     Analysis and Conclusions

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. [ v56 p520 ] National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998).

      We find no merit to the Union's contention that, because of the ULP found in WAPA, the Arbitrator erred in concluding that the directed reassignment of the grievant in this case was for legitimate managerial reasons. This contention is based on a misinterpretation of the Authority's decision in WAPA. The dispute in WAPA did not concern the legitimacy of the managerial reasons for the directed reassignment of the grievant. Rather, the dispute concerned the Agency's obligation to provide the Union with prior notice of its intent to reassign the grievant and an opportunity to bargain over the impact and implementation of the decision. Thus, the Authority's determination in the ULP proceedings in WAPA is immaterial to our analysis relating to the award in this case.

      The Union's reliance on the Authority's decision in Scott Air Force Base is misplaced. In Scott Air Force Base, a grievant, who had been granted priority referral status, filed a grievance challenging his nonselection for either of two vacancies. The Agency did not select the grievant for either position on the grounds that other candidates were more qualified based upon their answers to the job interview questions. The arbitrator denied the grievance. On reviewing the award, the Authority set forth the requirements on the doctrine of issue preclusion. The Authority noted that, in a related ULP case, it found that, based on certain statements, a manager expressed bias against priority referral candidates.

      The Authority held that it was estopped from reaching a determination on the issue of bias that was contrary to its findings in the related ULP case. The Authority remanded the arbitration case to the parties to request that the arbitrator interpret and clarify the award in light of a related ULP case that issued subsequent to the award. On remanding the award, the Authority directed the parties to request that the arbitrator reexamine the interview questions used to eliminate the grievant from consideration for the positions at issue.

      In this case, by contrast, the record does not establish that the Authority is estopped from reaching a result that is contrary to our findings in WAPA. As the issue of the legitimacy of the managerial reasons for the directed reassignment of the grievant was not litigated in WAPA, the requirements established in Scott Air Force Base on the doctrine of issue preclusion are not applicable to this case.

      Similarly, the Union's reliance on the MSPB's decision in Gragg is misplaced. In Gragg, the agency removed the employee for failure to comply with a directive by his supervisor to be clean shaven in the area where a respirator face piece meets the face. The MSPB found that the supervisor's directive could not serve as the basis for the removal action because it was in contravention of a related ULP case ordering the Agency to rescind the policy underlying the directive at the time the employee was ordered to comply with it. See also United States Department of Defense, Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8 FLRA 740 (1982). In the ULP case, the Authority found that the Agency had instituted the policy without affording the Union prior notice or an opportunity to bargain over the change and its impact and implementation.

      In this case, by contrast, the Arbitrator's ruling is not directly contingent on an issue resolved in the ULP case. Rather, the Arbitrator's ruling, in contrast to the MSPB's decision in G