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58 FLRA No. 21
U. S. Dept. of Justice, Federal Bureau of Prisons, Federal Transfer Center Oklahoma City, Oklahoma and AFGE, Local 171, Council of Prison Locals #33, 0-AR- 3438, (Lumbley, Arbitrator) (Decided September 30, 2002)
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by vacating correctional officer posts and ordered the Agency to cease and desist. He also ordered the Agency to appoint a representative designated by the Union to serve on the Agency's manpower committee. The Authority found the initial award and remedy award deficient as contrary to § 7106 of the Statute.
The Authority noted that in 53 FLRA 146 (1997) it set forth the two-pronged framework it uses to resolve exceptions which contend that an arbitrator's award is contrary to a management right under § 7106 of the Statute. Applying the framework to this case, the Authority concluded that the initial award failed to satisfy prong I because the Arbitrator's enforcement of Article 27 in the initial award excessively interfered with management's rights to determine its internal security practices under § 7106(a)(1) of the Statute and to assign work under § 7106(a)(2)(B) of the Statute.
The Authority also found that the remedy award was deficient. Under prong II of the framework established in 53 FLRA 146 (1997), an arbitrator's remedy for the violation of a collective bargaining agreement that affects a management right must reflect a reconstruction of what management would have done had it not violated the agreement. The right to assign work includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned.
Here, by ordering a remedy that affected management's right to assign work, the Arbitrator did not find, explicitly or implicitly, that Article 27, the only provision that he found had been violated, concerned or required such an appointment to the committee. Since Article 27 was the only violation he found, the reference to Article 10 provided no support for his remedy. Thus, the appointment of a Union designee to the Manpower Committee did not constitute a reconstruction of what the Agency would have done had it not violated the parties' agreement. The award was set aside.