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