Marine Corps Logistics Support Base, Pacific, Barstow, California (Activity) and American Federation of Government Employees, AFL-CIO, Local 1482 (Union) 

 3 FLRA No. 61
 
 MARINE CORPS LOGISTICS SUPPORT
 BASE, PACIFIC, BARSTOW,
 CALIFORNIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1482
 Union
 
                                            Case No. 0-AR-23
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR SARA ADLER FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    FROM THE RECORD BEFORE THE AUTHORITY, IT APPEARS THAT THE UNION FILED
 A GRIEVANCE OVER A PARTICULAR WORK ASSIGNMENT MADE BY THE ACTIVITY.  THE
 GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.  THE ARBITRATOR
 STATED THAT THE PARTIES WERE NOT IN AGREEMENT ON THE FRAMING OF A
 SPECIFIC ISSUE.  THE UNION'S PROPOSED ISSUE, AS STATED BY THE
 ARBITRATOR, WAS:
 
    DID MANAGEMENT VIOLATE ARTICLE 33, SECTION 3 OF THE NEGOTIATED
 AGREEMENT BY MISASSIGNING A SUPERVISOR TO PERFORM JOURNEYMAN DUTIES?
 
    DID MANAGEMENT VIOLATE ARTICLE 7, SECTION 1 OF THE NEGOTIATED
 AGREEMENT?
 
    THE ACTIVITY'S PROPOSED ISSUE, AS STATED BY THE ARBITRATOR, WAS:
 
    IS THE WORK ASSIGNMENT WHICH GAVE RISE TO THE GRIEVANCE . . .  A
 GRIEVABLE MATTER.  IF SO, DID MANAGEMENT VIOLATE ARTICLE 7, SECTION 1 OF 
 THE ARTICLE 7, SECTION 1 OF THE AGREEMENT . . . ?
 
    THE PARTIES AGREED TO ALLOW THE ARBITRATOR TO FIRST RESOLVE THE ISSUE
 OF ARBITRABILITY OF WHETHER "THE WORK ASSIGNMENT WHICH GAVE RISE TO THE
 GRIEVANCE . . . (WAS) A GRIEVABLE MATTER." THE ARBITRATOR'S AWARD WAS AS
 FOLLOWS:
 
    THE WORK ASSIGNMENT WHICH GAVE RISE TO THE GRIEVANCE . . . IS NOT
 ARBITRABLE AND THE ARBITRATOR MUST DECLINE TO PROCEED.
 
    IN REACHING THIS AWARD, THE ARBITRATOR DETERMINED THAT UNDER SECTION
 7106 OF THE STATUTE, /1/ MANAGEMENT HAS THE RIGHT TO ASSIGN PERSONNEL, 
 INCLUDING SUPERVISORS, AS IT SEES FIT AND THAT RIGHT TO NONNEGOTIABLE
 EXCEPT AS THE AGENCY CHOOSES UNDER THE CIVIL SERVICE REFORM ACT OF 1978 
 AND THE EMPLOYER HAS NOT HERE CHOSEN.
 
    ON THIS BASIS THE ARBITRATOR CONCLUDED THAT "THE ASSIGNMENT OF
 PERSONNEL IS NOT SUBJECT TO GRIEVANCE AND ARBITRATION."
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES APPROPRIATE SET FORTH IN 5 C.F.R. 2411(1978),
 WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE STATUTE (5 U.S.C. 7122(A) AND AS AMENDED BY SECTION 2400.5 OF THE
 TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS
 AUTHORITY, 44 F.R.  44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE.
 PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION 2411.32 OF THE
 AMENDED RULES OF PROCEDURE, THE AUTHORITY ACCEPTED THE UNION'S PETITION
 FOR REVIEW ON THE ISSUE OF WHETHER THE AWARD VIOLATES SECTION 7106 OF
 THE STATUTE.  BOTH PARTIES FILED POST-ACCEPTANCE BRIEFS.
 
    AS PREVIOUSLY NOTED, THE ARBITRATOR'S AWARD WAS CONFINED TO THE ISSUE
 OF WHETHER THE GRIEVANCE WAS ARBITRABLE.  FINDING THAT THE GRIEVANCE WAS
 NOT SUBJECT TO ARBITRATION, SHE DECLINED TO PROCEED AND THEREFORE DID
 NOT RULE ON THE MERITS OF THE GRIEVANCE.  THE ARBITRATOR BASED HER AWARD
 ON SECTION 7106 OF THE STATUTE.  SHE FOUND THAT THE GRIEVANCE WAS NOT
 ARBITRABLE BECAUSE SECTION 7106 RESERVES TO MANAGEMENT THE RIGHT TO
 ASSIGN WORK.  THE QUESTION PRESENTED TO THE AUTHORITY IS WHETHER THIS
 AWARD, FINDING ON THE BASIS OF SECTION 7106 THAT THIS GRIEVANCE WAS NOT
 ARBITRABLE AND CONSEQUENTLY THAT THERE WAS NO AUTHORITY TO PROCEED TO
 RESOLVE THE GRIEVANCE ON THE MERITS, IS DEFICIENT UNDER THE STATUTES.
 
    FOR THE REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE
 ARBITRATOR'S AWARD IS DEFICIENT.  THE AUTHORITY NOTES THAT THE
 ARBITRABILITY QUESTION SUBMITTED TO THE ARBITRATOR CONCERNED WHETHER THE
 DISPUTE IN THIS CASE, WHICH INVOLVED A WORK ASSIGNMENT AND ALLEGATIONS
 BY THE UNION THAT SUCH ASSIGNMENT WAS MADE IN VIOLATION OF SPECIFIC
 PROVISIONS OF THE PARTIES' NEGOTIATED AGREEMENT, COULD BE PROPERLY
 SUBJECT TO ARBITRATION.  SECTION 7106 OF THE STATUTE, ON WHICH THE
 ARBITRATOR RELIED IN FINDING THE DISPUTE NONARBITRABLE, SPECIFIES AND
 ENUMERATES RIGHTS WHICH ARE RESERVED TO MANAGEMENT. HOWEVER, NOTHING IN
 SECTION 7106 PRECLUDES AN ARBITRATOR FROM REACHING THE MERITS OF A
 GRIEVANCE IN CASES WHERE, AS IN THIS CASE, THE UNION HAS ALLEGED A
 VIOLATION OF CERTAIN SPECIFIED PROVISIONS OF A COLLECTIVE BARGAINING
 AGREEMENT.  THUS, WHILE AN ARBITRATOR MAY FIND, ON THE MERITS OF THE
 GRIEVANCE, THAT THERE HAS BEEN NO VIOLATION OF THE SPECIFIED PROVISIONS
 OF THE AGREEMENT BECAUSE THE ACTIONS TAKEN BY MANAGEMENT WHICH GAVE RISE
 TO THE GRIEVANCE WERE WITHIN THE AMBIT OF THE RIGHTS RESERVED UNDER
 SECTION 7106, OR THAT, WHILE THERE HAS BEEN A VIOLATION, THE SCOPE AND
 NATURE OF POSSIBLE REMEDIES AVAILABLE TO THE ARBITRATOR IS LIMITED BY
 SECTION 7106, NOTHING IN SECTION 7106 IN AND OF ITSELF PREVENTS AN
 ARBITRATOR FROM DECIDING IF THERE HAS BEEN A VIOLATION OF A PARTICULAR
 CONTRACT PROVISION.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2411.37(A) OF THE AMENDED RULES, THE ARBITRATOR'S AWARD FINDING THE
 GRIEVANCE NONARBITRABLE IS SET ASIDE.  /2/
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106 PERTINENTLY PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /2/ IN ARRIVING AT THIS DECISION, THE AUTHORITY IN NO MANNER
 ADDRESSES THE IMPACT OR APPLICATION OF SECTION 7106 TO THE MERITS OF THE
 GRIEVANCE.  THAT QUESTION WOULD BE PROPERLY FOR THE ARBITRATOR TO DECIDE
 SHOULD THE PARTIES CHOOSE TO RESUBMIT THE GRIEVANCE TO ARBITRATION
 SUBJECT TO ANY SUBSEQUENT APPEAL THAT MIGHT BE EXERCISED PURSUANT TO 5
 U.S.C.  7122(A).