United States, Department of Transportation, Maritime Administration (Agency) and National Association of Independent Labor, Local 6 (Union)

[ v61 p816 ]

61 FLRA No. 164

UNITED STATES
DEPARTMENT OF TRANSPORTATION
MARITIME ADMINISTRATION
(Agency)

and

NATIONAL ASSOCIATION
OF INDEPENDENT LABOR
LOCAL 6
(Union)

0-AR-4040

_____

DECISION

September 28, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Irwin Kaplan filed by the Agency and the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Each party filed an opposition to the other's exceptions.

      The Arbitrator found that the Agency violated a government-wide regulation in several respects when it conducted a reduction in force (RIF) and established a new competitive area without notifying the Office of Personnel Management (OPM). The Arbitrator ordered specific remedies for individuals he found were adversely affected by the violations.

II.     Background and Arbitrator's Award

      As part of a study of whether to contract out certain functions, the Agency developed: (1) a Most Efficient Organization (MEO) as a basis to bid on the functions; and (2) a Residual Organization (RO) to perform quality assurance functions whether the work was awarded to the MEO or an outside contractor. The MEO was successful in the competition process and, as a result, the functions were not contracted out. Subsequently, the Agency conducted a reorganization, in which it used one retention register to staff first the MEO, then the RO. See Award at 7. Thus, employees who were higher on the retention register were placed in [ v61 p817 ] the MEO while employees who were lower on the retention register were placed in the RO. Employees who received positions in the MEO and the RO were downgraded; employees who did not receive such positions were separated.

      Seventeen grievances were filed and consolidated for processing. Unresolved, the consolidated grievance was submitted to arbitration. The parties did not stipulate the issues for resolution. The Arbitrator resolved four issues.

      First, pursuant to the Agency's motion to strike certain evidence and testimony, the Arbitrator considered whether the Union's allegation that employees were performing work outside of their new position descriptions was properly before him. The Arbitrator determined that it was not.

      Second, the Arbitrator considered whether the Agency satisfied one of the reasons enumerated in 5 C.F.R. § 351.201(a)(2) as justifying a RIF. [n1]  The Arbitrator found that the Agency conducted the RIF for a permissible reason under the regulations, namely, as the result of "an A-76 [contracting out] study, which led to the disputed reorganization . . . ." Id. at 23. In so concluding, the Arbitrator rejected the Union's argument that the reorganization was not bona fide because the employees continued to perform the same duties after the RIF as before the RIF. In this regard, the Arbitrator found that the pre-RIF positions "changed substantially as part of the Agency's overall reorganization." Id. at 26.

      The third issue that the Arbitrator resolved was whether the Agency violated RIF regulations in setting up the RO. Initially, the Arbitrator found that the Agency set up the MEO and the RO as separate competitive areas, explaining that, before the MEO and the RO were developed, all employees affected by the RIF were part of one organization and one "competitive area," namely the Fort Eustis James River Reserve Fleet. [n2]  The Arbitrator agreed with the Union that the Agency "unfairly favored" employees who were placed in the RO because the RO jobs were not subject to being contracted out, as were the MEO jobs. Id. at 24. More specifically, the Arbitrator found that a certain High Voltage Electrician was placed in the RO as a WG-10 Electrical Worker over pre-RIF High Voltage Electricians with higher retention standing who were placed in the MEO. Similarly, the Arbitrator found that a certain WG-10 Marine Machinery Mechanic was placed in the RO over employees with higher retention standing who were placed in the MEO. Based on witness testimony, the Arbitrator found that this "produced situations where a lower grade WG worker in the RO basically supervised' higher graded WG workers in the MEO. Id. at 25. The Arbitrator found that, without more, this "anomalous result . . . does not appear plausible." Id.

      The Arbitrator also found, with respect to the third issue, that employees who were placed in the RO "had an edge in continued employment" while employees who were placed in the MEO "faced separation, if [the Agency] had lost its bid." Id. at 24. The Arbitrator relied on witness testimony that "even if [the Agency] had lost the bid competition, there still would have been a need for the RO." Id. at 24 (citing TR. at 52-53). Turning to 5 C.F.R. § 351.402(c), which requires agencies to notify the OPM "[w]hen a competitive area will be in effect for less than 90 days prior to the effective date of a [RIF]," the Arbitrator found that the Agency improperly established the RO as a competitive area because it did not notify OPM that the RO was a new competitive area in effect for less than 90 days prior to the RIF.

      Finally, the Arbitrator resolved the issue of whether the Agency followed proper retention registers and committed other errors. The Arbitrator found that the Agency made "some mistakes in following the retention registers," but that those mistakes did not "cast doubt on the legitimacy of the RIF." Id. at 27. However, the Arbitrator found that the Agency violated 5 C.F.R. § 351.702 by wrongly assigning employee C to a Small Craft Operator position for which he was not qualified, had no experience, and had no desire to be assigned. The Arbitrator acknowledged the Agency's claim that employee C was trainable for the position, but he, nonetheless, found that employee C's assignment violated 5 C.F.R. § 351.702(a)(1)-(4). In view of this finding, the Arbitrator also found that employees B and [ v61 p818 ] H (two grievants who were separated as a result of the RIF) were improperly not considered for the Small Craft Operator position to which employee C was wrongly assigned.

      Because the Arbitrator found that the Agency had a legitimate reason for conducting the RIF and that it properly abolished the pre-RIF positions, the Arbitrator did not cancel the RIF as the Union requested. However, because he found that employees in the RO had an "edge" over employees in the MEO, the Arbitrator found that the Agency violated § 351.402(c) and, thus, ordered the Agency to "offer certain positions in the RO to qualified employees who had been . . . placed in the [MEO] notwithstanding their higher retention standing[.]" Id. at 28. The Arbitrator also ordered the Agency to offer employee C a position for which he is qualified. Finally, the Arbitrator ordered the Agency to offer employee C's former position of Small Craft Operator to employee H, and if he declines, then to employee B. The Arbitrator split his fees and costs between the parties, requiring the Union to pay two thirds and the Agency to pay one third, and he retained jurisdiction for 90 days to resolve any disputes over these remedies. See id. at n.11.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency claims the Arbitrator's conclusion that it created two separate competitive areas is based on several nonfacts. First, the Agency claims that a certain High Voltage Electrician was not placed in the RO as a WG-10, as stated in the award, but was placed in the RO as a WG-7. Second, the Agency disputes as a nonfact that it placed a certain Marine Machinery Mechanic in the RO as a WG-10 over employees with higher retention standing in that same competitive level who were placed in the MEO. The Agency claims this employee was downgraded to WG-7 and, therefore, received "no better offer than those immediately preceding him in the retention order." Agency's Exceptions at 7. Third, the Agency disputes as a nonfact the Arbitrator's conclusion, based on witness testimony, that the employees in the RO had an "edge in continued employment" over those in the MEO. Id. Finally, the Agency disputes the Arbitrator's finding that a witness' testimony that lower grade employees in the RO were supervising higher graded employees in the MEO created an anomalous result that did "not appear plausible." Id. at 8. According to the Agency, the witness further testified that "the RO was created in order to have a group of workers available to perform work which fell outside the MEO's contract or PWS." Id. The Agency argues that these nonfacts were central to the Arbitrator's finding that the Agency established two competitive areas.

      The Agency also argues that the award is contrary to law with respect to employee B, C, and H because it conflicts with 5 C.F.R. §§ 351.203, 702 and 703 and Merit Systems Protection Board (MSPB) precedent. As to the regulations, the Agency asserts that the Arbitrator "ignored the undue interruption provision" of § 351.203, which allowed the agency to place employee C in the Small Craft Operator position so long as he could perform the duties of the position, without undue interruption, within 90 days of being placed in the position. [n3]  Id. at 11. The Agency asserts that employee C was properly placed in the position because he was "deemed trainable for the position." Id. at 12. Turning to MSPB precedent, the Agency asserts that "[a]n employee is entitled to one proper offer and has no right to a choice of positions." Id. at 14 (citing Jorgenson v. Dep't of Agriculture, 22 MSPR 207, 209 (1984)). As such, the Agency argues that the Arbitrator erred in relying on the fact that employee C had no desire to be a Small Craft Operator. Moreover, citing MSPB precedent, the Agency asserts that its determination of employee C's qualifications is entitled to deference absent a showing of bad faith or patent unfairness. Id. at 13 (citing Hayes v. Dep't of Health and Human Servs., 829 F.2d 1092, 1100 (Fed. Cir. 1987) (Hayes)).

      The Agency also claims that the Arbitrator made an "implied finding" that the qualifications of employees B and H were superior to those of employee C. Id. at 14. The Agency claims this determination is contrary to law and disputes the Arbitrator's conclusion that either employee B or employee H should have received the Small Craft Operator position instead of employee C. The Agency claims that both employees B and H were "lower in the retention order than any of the individuals who were placed or retained in Small Craft Operator positions." Id. at 15. Therefore, the Agency asserts that, even if employee C was improperly placed in the Small Craft Operator position, neither employee B nor employee H would have been placed in that position because employee K was next on the retention register. [ v61 p819 ] The Agency also claims that under MSPB precedent, a "displaced employee will not succeed by showing that he is better qualified for a position than an employee with superior tenure. The displacing employee need only qualify for the position; he need not demonstrate superior qualifications." Id. (citing Madsen v. VA, 754 F.2d 343 (Fed. Cir. 1985)). Thus, the Agency claims that the superior qualifications of employees B and H are irrelevant and should not have been considered by the Arbitrator.

      The Agency also claims that, by requiring it to offer certain positions in the RO to employees who were placed in the MEO, the remedy awarded interferes with its rights to determine its organization and assign work. See id. at 16. According to the Agency, these management rights include the right to fill the MEO positions before filling the RO positions, which is what the Agency claims it did.

      Finally, the Agency argues that the Arbitrator exceeded his authority because he granted relief to three employees who did not file grievances on their own behalf.

B.      Union's Opposition

      According to the Union, the issue of whether the Agency established two separate competitive areas was undisputed, as the Agency admits to establishing the MEO and the RO as "separate organizations[.]" Union's Opposition at 2. The Union also asserts that the Arbitrator made only a typographical error in finding that two WG-10, rather than two WG-7, employees were assigned to the RO. This error, the Union argues, does not render the award deficient because the relevant fact was not the grade level of the employees but, instead, was that the employees were lower on the retention register than other employees who were assigned to the MEO. See id. at 4.

      The Union disputes the Agency's claim that its assignment of employee C to the Small Craft Operator position was consistent with § 351.703. [n4]  In this connection, the Union claims that provision applies only in filling a vacant position. According to the Union, the position assigned to employee C was not vacant, but was occupied by another employee (employee S) who was bumped by employee C. Also, the Union asserts that the Agency violated § 351.701(b) by permitting employee C to bump employee S because the employees C and S held the same tenure group and subgroup. [n5] 

      The Union asserts that the award does not affect management's rights to determine its organization or assign work. According to the Union, the award merely requires the Agency to follow the law and government-wide regulations when conducting a RIF. Finally, the Union disputes that the remedy exceeded the Arbitrator's authority.

C.      Union's Exceptions

      The Union disputes the Arbitrator's remedy, asserting that "once the Arbitrator found the [A]gency improperly set up two separate competitive areas, the [A]gency's RIF should have been reversed." Union's Exceptions at 2. More specifically, the Union argues that the proper remedy for the Agency's violation is to cancel the improperly established competitive area, namely the RO, thus resulting in only one competitive area. See id. at 5. The Union further argues that certain employees' positions were "not actually abolished" because they continued "doing the same work . . . at a lower grade." Id. at 6-7 (citing Metger v. Dep't of the Navy, 68 MSPR 225 (1995) (Metger) and Hoffman v. Dep't of Housing and Urban Dev., 22 MSPR 564, 568 (1984) (Hoffman)). Based on the foregoing, the Union asserts that the Arbitrator's fees and expenses should be reapportioned by the Authority or by the Arbitrator on remand. Finally, the Union claims that it reserved its right to file a motion for attorney fees before the Arbitrator and again requests that "its right to attorney fees be preserved." Id. at 8.

D.      Agency's Opposition

      The Agency disputes the Union's claim that the proper remedy should have been a reversal of the RIF. According to the Agency, under MSPB precedent, even "if there were two competitive areas in violation of the RIF regulations, there would be no corrective action taken unless a grievant's substantive rights were affected by the misapplication of the regulations." Agency's Opposition at 3. The Agency claims the Union did not assert, and the Arbitrator did not find, that any grievants' "substantive rights were affected by virtue [ v61 p820 ] of being placed in the MEO rather than in the RO." Id. In addition, the Agency claims the Union's argument regarding the employees performing the same duties as before is "an apparent attempt to revisit the Arbitrator's finding on the bona fides of the RIF." Id. at 4. The Agency claims the MSPB's decision in Metger and Hoffman also do not support the Union's argument because those "cases involved successful challenges to the bona fides of a RIF." Id. at 5. As to the Union's request with respect to arbitral fees, the Agency asserts that the Union has provided no basis for the Authority to reapportion fees. Finally, according to the Agency, the Union's request to preserve its right to file a motion for attorney fees "requires no action by the Authority . . . at this time." Id. at 6.

IV.     Analysis and Conclusions

A.     The Award Is Not Based On Nonfacts

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Agency excepts to the Arbitrator's conclusion that it created two competitive areas, arguing that the conclusion is based on several non-facts. [n6]  Specifically, the Agency claims the Arbitrator erred in finding that a certain High Voltage Electrician and a certain Marine Machinery Mechanic were placed in the RO as WG-10s. The Union agrees with the Agency that this finding was in error because these employees were placed in the RO as WG-7s. Nevertheless, as the Union further notes, the proper grade level of these employees was not a central fact underlying the Arbitrator's finding of two competitive areas. Rather, the central fact underlying the Arbitrator's finding was that these employees were lower on the retention register and were placed in the RO, which gave them "an edge in continued employment . . . while other employees who were in the same pre-RIF competitive level faced separation, if [the Agency] had lost its bid." Award at 24. The Agency does not dispute the Arbitrator's finding that these employees were lower on the retention register. The Agency does dispute, as a nonfact, that employees assigned to the RO had an edge in continued employment. However, that issue was disputed below and cannot be challenged here. As such, the Arbitrator's error regarding the employees' proper grade does not demonstrate that the award is deficient, and we deny the Agency's exception.

B.      The Award Is Deficient To the Extent It Grants Relief To Non-Grievants

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). The Agency claims that the Arbitrator's award grants relief to three employees who did not file grievances, but the Agency does not identify these non-grievants. While the award does not expressly grant relief to any non-grievants, to the extent that the award effectively requires the Agency to offer positions in the RO to non-grievants, that portion of the award is deficient and is set aside.

C.      Standard of Review for Contrary to Law Claims

      The parties claim that the award is contrary to law in various respects. The Authority reviews questions of law raised by exceptions to an arbitration award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable legal standard. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) (DOD). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.      The Record Is Insufficient To Determine the Award's Consistency With OPM's RIF Regulations

      In evaluating claims that an award is contrary to OPM's RIF regulations, the Authority examines and applies MSPB precedent concerning RIF matters. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 53 FLRA 984, 992 (1997) (citing United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va, 49 FLRA 588, 593-95 (1994) and United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 44 FLRA 1195, 1200 (1992)).

      The Agency disputes the Arbitrator's determination that employee C was wrongly assigned to the Small Craft Operator position because the Agency claims [ v61 p821 ] employee C was trainable, and thus qualified, for the position, pursuant to § 351.702. When an appellant disputes assignment rights, the burden is on the agency to prove that it properly followed RIF regulations in effecting the disputed assignment. See Randall Goldman v. Dep't of Transp., 2005 MSPB Lexis 2829 at 9 (May 12, 2005) (citations omitted). In determining whether an agency afforded an employee proper assignment rights, the Board conducts a de novo review to determine whether the agency has shown by a preponderance of the evidence that the employee had "the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption." McMillan v. Dep't of the Army, 84 M.S.P.R. 476, 488-89 (1999) (citing 5 C.F.R. § 351.702(a)(4) and Chambers v. United States Postal Serv., 77 M.S.P.R. 337, 342 (1998) (McMillan). Consistent with this precedent, the Authority also reviews an arbitrator's determination of an employee's qualifications for a position under the RIF regulations de novo. See Tidewater Virginia Fed. Employees Metal Trades Council, 53 FLRA 1149, 1159-60 (1998) (award not contrary to § 351.701 where conclusion that grievant was unqualified for a position was supported by the record) (Tidewater).

      An agency may assign an employee to an occupied position under 5 C.F.R. § 351.701 if the employee: (1) meets the OPM's requirements for the position; (2) is physically qualified to perform the duties of the position; (3) meets any special qualifying conditions which the OPM has approved for the position; and (4) can satisfactorily perform the duties of the position without undue interruption. See § 351.702(a)(4). The term "undue interruption" means, as relevant here, "a degree of interruption that would prevent the completion of required work by the employee 90 days after the employee has been placed in a different position under this part." 5 C.F.R. § 351.203.

      Relying on § 351.702(a)(1)-(4), the Arbitrator found that employee C was wrongly assigned to the Small Craft Operator position because he "had no desire to work as a small craft operator and was not qualified" for the position, and because he "had no experience working in that capacity." Award at 27. As the Agency correctly notes, the employee's lack of desire to work as a Small Craft Operator is not relevant to the Agency's assignment decision, as accommodating an employee's personal desire is not required by regulation. See, e.g., Grayheart v. Dep't of the Army, 10 MSPB 822, 823 (1982) (holding that, in a RIF action, an employee has no right to a choice of positions).

      As relevant here, § 351.702(a)(4) requires employees to have the "capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption." The Agency claims it has met this requirement because it is undisputed that employee C was trainable for the position. [n7]  The Arbitrator did not find that employee C was not "trainable" for the position of Small Craft Operator. However, as the Union points out, the Arbitrator found that employee C was "not qualified" for the position. Award at 27. The Agency disagrees with the Arbitrator's finding and, relying on Hayes, asserts that it is entitled to deference with respect to its determination that employee C was qualified for the position. The Agency's reliance on Hayes is misplaced, however, because an agency is entitled to deference only as to its "determination of the requirements that an individual must satisfy to qualify for a particular position[,]" not to its determination of whether an employee actually meets those requirements. 829 F.2d at 1100 (emphasis added).

      As previously explained, the Authority is required to review an employee's qualifications under § 351.702(a)(4) de novo. See McMillan, 84 M.S.P.R at 488-89; Tidewater, 53 FLRA at 1159-60. For the following reasons, we find that the record is insufficient to permit the Authority to conduct a de novo review of the Arbitrator's finding that employee C was not qualified. In this regard, the Arbitrator did not explain why he considered employee C unqualified. That is, the Arbitrator made no finding as to whether employee C has the "capacity, adaptability, and special skills" needed for the Small Craft Operator position. The Arbitrator also did not explain what evidence he relied on in reaching this conclusion. Moreover, there is no evidence in the record, and no discussion in the award, about the qualifications requirements of the Small Craft Operator position or about employee C's qualifications. For example, the record does not contain a position description for the Small Craft Operator position or a evidence (such as a resume) showing employee C's education and training credentials. When reviewing an agency's determination of an employee's qualifications, the Board considers, among other things, position descriptions, duties actually performed in the position, and employee credentials, [ v61 p822 ] including resumes. See, e.g., McMillan, 84 M.S.P.R. at 489-93. Such information is not in the record here.

      As the Arbitrator failed to explain what evidence he relied on in finding that employee C was not qualified for the Small Craft Operator position, and because the Agency failed to include pertinent documentary evidence with its exceptions, the record is insufficient for the Authority to review the award de novo with respect to this arbitral finding. Where an arbitrator has not made sufficient factual findings for the Authority to assess or determine an arbitrator's legal conclusions, and those findings cannot be derived from the record, the Authority will remand. See, e.g., AFGE, Local 701, 55 FLRA 631, 635 (1999) (citations omitted). [n8] 

2.      The Award Does Not Violate Management's Rights

      As relevant here, the Agency claims the award violates its rights to determine its organization under § 7106(a)(1) and to assign work under § 7106(a)(2)(B) of the Statute. When an exception alleges that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If it does, the Authority applies the framework established in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See SBA, 55 FLRA at 184. Under prong I of BEP, where the affected management right is set forth in § 7106(a)(1), the Authority examines whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See, e.g., SSA, 60 FLRA 150, 152-53 (2004) (Member Pope dissenting on other grounds). Where the affected management right is set forth in § 7106(a)(2), the Authority examines whether the award provides a remedy for a violation of either a provision negotiated under § 7106(b), or an applicable law within the meaning of § 7106(a)(2) of the Statute. See, e.g., United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 839, 841-42 (2005) (PTO). If the award satisfies prong I of BEP, then under prong II, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. See BEP, 53 FLRA at 154.

      The right to determine organization encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., 58 FLRA 175, 178 (2002) (FAA); United States Dep't of Veterans Affairs, Conn. HealthCare Sys.; Newington, Conn., 57 FLRA 47, 48 (2001). The right also includes the authority to determine how an agency will structure itself to accomplish its mission and functions and the right to determine how the agency will be divided into organizational entities such as sections. See, e.g., FAA, 58 FLRA at 178; United States Dep't of Def., Nat'l Guard Bureau, Wash. Army Nat'l Guard, Tacoma, Wash., 45 FLRA 782 (1992); NTEU, Chapter 83, 35 FLRA 398, 410 n.5 (1990) (citing Cong. Research Employees Ass'n, 3 FLRA 737, 737-38 (1980)). Finally, the right to determine organization encompasses the right to determine "where organizationally certain functions shall be established and where the duty stations of the positions providing those functions shall be maintained." See AFGE, Local 3529, 55 FLRA 830, 832 (1999) (citing NTEU, Atlanta, Ga., 32 FLRA 886, 889-90 (1988)). The Agency has not established that the award affects its right to determine its organization. In this regard, although the award requires the Agency to fill the RO positions prior to filling the MEO positions, it places no restrictions on the Agency's ability to determine its administrative or functional structure. Consequently, the award does not affect management's right to determine its organization.

      The right to assign work includes, among other things, the right to determine to whom or what positions duties will be assigned. See United States Dep't of Transp., FAA, 61 FLRA 54, 56 (2005). Similarly, the right to assign employees includes the right to assign employees to positions. See AFGE, AFL-CIO, 2 FLRA 604, 613 (1980). Here, the Arbitrator ordered the Agency to offer certain positions in the RO to qualified employees who were placed in the MEO as a result of the RIF. As such, the award affects the Agency's rights to assign work and employees under § 7106(a)(2) of the Statute.

      The award enforces the Agency's compliance with applicable RIF regulations. The Authority has held that an award affecting management rights under § 7106(a)(2) of the Statute will satisfy prong I of the BEP framework if it provides a remedy for a violation of an applicable law. See United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690-91 (1999). The Authority recently [ v61 p823 ] held that the regulations set forth in 5 C.F.R. Part 351 are applicable laws within the meaning of § 7106(a)(2) of the Statute. See AFGE, Local 1441, 61 FLRA 201, 206 (2005) (Chairman Cabaniss concurring). Consequently, because the award enforces OPM's RIF regulations, it satisfies prong I of the BEP framework.

      The Agency does not argue that the award fails prong II of the BEP framework. Consequently, there is no need to address prong II of the BEP framework. See Nat'l Labor Relations Board, Wash., D.C., 61 FLRA 154, 161 (2005) (Member Armendariz dissenting as to other matters). We note that the Agency claims that interpreting the award consistent with prong II "would affect only 4 people, 3 of whom were not grievants[,]" and as such, the Arbitrator exceeded his authority. Agency's Exceptions at 19. As previously explained, we agree that, insofar as the award provides relief to non-grievants, it is deficient.

      Based on the foregoing, we deny the Agency's management rights exception.

3.      The Arbitrator's Finding That the RIF Was Bona Fide Is Not Contrary To Law

      The Union asserts that its exceptions challenge only the Arbitrator's remedy. See Union's Exceptions at 1. However, the Union also asserts that "the employee's positions were not actually abolished and just continued under a different title and grade." Id. at 6. Thus, the Union's argument expressly challenges, as a matter of law, the Arbitrator's finding that "the pre-RIF positions were abolished[.]" Award at 26. Under MSPB precedent, when an appellant claims that the position he was offered during a RIF was not abolished because it was identical to the position he previously held, the Board reviews the claim as a challenge to the agency's stated reason for conducting the RIF. See, e.g., Kanner v. Dep't of the Army, 4 M.S.P.R. 130, 132 (1980). Consequently, we will review the Union's exception as a matter of law, and apply the standard of de novo review and assess whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. See DOD, 55 FLRA at 40. In making that assessment, we defer to the Arbitrator's underlying factual findings. See id.

      Under MSPB precedent, an agency must establish by a preponderance of the evidence that it invoked RIF procedures for one of the reasons set forth at 5 C.F.R. § 351.201(a)(2). See, e.g., Schroeder v. Dep't of Transp., 60 M.S.P.R. 566, 569 (1994). Under § 351.201(a)(2), permissible reasons justifying a RIF include, among other things, a reorganization, which is defined as "the planned elimination, addition, or redistribution of functions or duties in an organization." 5 C.F.R. § 351.203.

      Where, as here, an agency asserts that a RIF has been undertaken due to a reorganization, the burden is on the agency to show that the employee's position was actually abolished and is not continuing under a different title or grade. See Whitehurst v. Tenn. Valley Auth., 43 M.S.P.R. 486, 489 (1990). In making this determination, the Board will examine all of the record evidence, including the actual duties performed by the employees in each of the positions in question, see, e.g., Jones v. Dep't of the Army, 8 M.S.P.R. 377, 379 (1981), as well as, the position descriptions. See Holmes v. Dep't of the Army, 41 M.S.P.R. 612, 616 (1989). See also Decker v. Dep't of Health & Human Servs., 40 M.S.P.R. 119, 127 (1989) (in evaluating whether an agency has properly invoked the RIF regulations due to a change in duties, the Board must determine whether a change in duties has in fact occurred); Ryba v. Dep't of the Navy, 18 M.S.P.R. 472, 474 (1983) (same).

      The Arbitrator found that the Agency conducted the RIF as the result of "an A-76 study, which led to the disputed reorganization . . . ." Award at 23. In so finding, the Arbitrator rejected the Union's claim that, because certain employees continued to perform their pre-RIF duties in their post-RIF positions, the positions were not actually abolished and no bona fide reorganization occurred. See id. at 26. The Arbitrator considered testimony about the duties being performed, and he found that certain employees did continue to perform their pre-RIF duties in their post-RIF positions, as the Union alleged. See id. at 25-26. Nevertheless, the Arbitrator found that the reorganization "resulted in new position descriptions created by HR personnel, with input from subject experts." Id. at 26. Based on the new position descriptions and the "significant amount and nature of the additional work required of the [g]rievants" in their new positions, the Arbitrator concluded that the pre-RIF positions were abolished and that the reorganization was bona fide. Id.

      The Union disputes the Arbitrator's conclusion solely on the basis that the employees continued to perform pre-RIF duties "under a different title and grade." Union's Exceptions at 6. When an appellant asserts that a reorganization is just a change in the employee's classification, the agency must show that the appellant's position was actually abolished. See Stechler v. Dep't of Energy, 20 M.S.P.R. 23, 25, aff'd, 758 F.2d 666 (Fed. Cir. 1984). The Board will examine all record evidence, particularly the position descriptions, in making this determination. See Willson v. Dep't of the Army, [ v61 p824 ] 25 M.S.P.R. 167, 170 (1984); Kanner v. Dep't of the Army, 19 M.S.P.R. 502, 505 (1984). Where a comparison of pre- and post-RIF positions reveals "a significant difference in the scope and character of the positions[,]" then the Board will find that the RIF was conducted for a bona fide reason. Holmes v. Dep't of the Army, 41 M.S.P.R. 612, 616 (1989). The fact that work performed by an employee prior to a reorganization continues to be performed does not establish that a bona fide reorganization did not occur. See DePascale v. Dep't of the Air Force, 59 M.S.P.R. 186, 189 (1993) (DePascale).

      The Union expressly agrees with the Arbitrator's factual determination that the employees performed "additional work" that required "additional skills" not included in their pre-RIF positions. Union's Exceptions at 6. Moreover, the Union does not dispute the Arbitrator's finding that the "amount and nature" of the additional work was "significant[,]" such that "new position descriptions" had to be developed. Although the record does not contain actual position descriptions, the Arbitrator's conclusions are supported by testimony at the hearing, wherein Agency officials testified as to the differences in the amount and nature of the work performed in the pre and post RIF positions. See Tr. at 346-348; 422. Thus, the Union has not demonstrated that the Arbitrator erred in finding that the former positions were abolished, and we deny the exception. [n9]  Compare DePaschle, 59 M.S.P.R at 189 (rejecting claim that pre-RIF positions were not abolished because same duties were still being performed) with Hoover v. Dep't of the Navy, 57 M.S.P.R. 545 (1993) (RIF action improper where duties of pre-RIF and post-RIF positions did not change significantly).

4.      The Remedy Is Not Contrary To Law

      The Union claims the Arbitrator should have rescinded the RIF in light of his finding that the Agency improperly established two competitive areas. However, as the Agency points out, the Union does not provide any legal support for its view that the required remedy is to rescind the RIF. Indeed, the Union's position contradicts longstanding MSPB precedent holding that a RIF action will not be reversed, even if the agency made an error in its application of the RIF regulations, when the agency shows that such error did not adversely affect the appellants' substantive entitlements. See, e.g., Hill v. Dep't of Commerce, 25 M.S.P.R. 205, 208 (1984). Consistent with the foregoing finding that the Agency would not necessarily have filled the RO positions prior to the MEO positions, there is no indication in the record that any employee's substantive entitlements were adversely affected by what the Arbitrator found to be the Agency's failure to notify OPM of a new competitive area. As such, the Union has not established that the RIF should have been rescinded, and we deny the exception.

V.     Decision

      The Agency's nonfact and management rights exceptions and the Union's contrary to law exceptions are denied. However, to the extent the award requires the Agency to grant relief to non-grievants, the award exceeds the Arbitrator's authority and is set aside. Further, we find that the record is insufficient to determine the award's consistency with OPM's RIF regulations regarding employee C's qualifications and assignment. As such, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to make appropriate factual findings, consistent with 5 C.F.R. § 351.702(a)(4), regarding employee C's qualifications for the Small Craft Operator position. If the Arbitrator finds a violation of this provision, then any appropriate remedy must comply with OPM regulations and MSPB precedent.



Footnote # 1 for 61 FLRA No. 164 - Authority's Decision

   Appropriate reasons for conducting a RIF under 5 C.F.R. § 351.201(a)(2) include:

[L]ack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee's position [due] to erosion of duties when such action will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days.

Footnote # 2 for 61 FLRA No. 164 - Authority's Decision

   5 C.F.R. § 351.402 provides, in relevant part, that:

(a) Each agency shall establish competitive areas in which employees compete for retention under this part.
(b) A competitive area must be defined solely in terms of the agency's organizational unit(s) and geographical location, and it must include all employees within the ... area so defined.

Footnote # 3 for 61 FLRA No. 164 - Authority's Decision

   5 C.F.R. § 351.203 defines undue interruption, as relevant here, as:

[A] degree of interruption that would prevent the completion of required work by the employee 90 days after the employee has been placed in a different position under this part .... However, a work program would generally not be unduly interrupted even if an employee needed more than 90 days after the reduction in force to perform the optimum quality or quantity of work.

Footnote # 4 for 61 FLRA No. 164 - Authority's Decision

   5 C.F.R. § 351.703 permits agencies to "assign an employee to a vacant position" under § 351.701 "without regard to OPM's standards and requirements for the position if . . . [t]he employee meets any minimum education requirement for the position; and . . . [t]he agency determines that the employee has the capacity, adaptability, and special skills needed to satisfactorily perform" the duties of the position.


Footnote # 5 for 61 FLRA No. 164 - Authority's Decision

   5 C.F.R. § 351.701(b) permits, as relevant here, released employees to "bump to a position that . . . [i]s held by another employee in a lower tenure group or in a lower subgroup; [and] . . . [i]s no more than three grades . . . below the position from which the employee was released."


Footnote # 6 for 61 FLRA No. 164 - Authority's Decision

   We note that the issue of whether there was two competitive areas is an issue of both fact and law. However, the Agency does not except to the Arbitrator's finding of two competitive areas as a matter of law, and thus, provides no basis for the Authority to review the legal sufficiency of that finding. As such, we express no opinion about the Arbitrator's legal conclusion in this regard.


Footnote # 7 for 61 FLRA No. 164 - Authority's Decision

   The Agency cites § 351.703, which permits an agency to assign an employee to a vacant position in certain circumstances without regard to OPM's standards and requirements. However, as the Union points out, § 351.703 applies only to vacant positions, see Hoover v. United States Postal Serv., 77 M.S.P.R. 352, 357 (1998), and the position to which employee C was assigned was not vacant. See Exh. I at 18. Thus, the Arbitrator correctly relied on § 351.702, which applies to occupied positions.


Footnote # 8 for 61 FLRA No. 164 - Authority's Decision

   Be