American Federation of Government Employees, Local 1712 (Union) and United States Army, 172nd Infantry Brigade (Alaska) (Activity) 

 6 FLRA No. 85
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 LOCAL 1712
 Union
 
 and
 
 UNITED STATES ARMY,
 172ND INFANTRY BRIGADE (ALASKA)
 Activity
 
                                            Case No. O-AR-104
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR PAUL D. JACKSON FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY CHANGED THE POSITION DESCRIPTIONS OF ITS FIRST-LINE
 SUPERVISORS, REMOVING THEIR AUTHORITY TO MAKE SELECTIONS FOR CERTAIN
 VACANCIES AND GIVING THOSE DUTIES TO THE GENERAL FOREMAN.  THE UNION
 GRIEVED THIS CHANGE, CONTENDING THAT IT VIOLATED THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT AND AN ACTIVITY REGULATION INCORPORATED THEREIN
 WHICH STATES, IN PERTINENT PART, THAT "(T)HE SELECTING SUPERVISOR
 (NORMALLY THE IMMEDIATE SUPERVISOR OF THE JOB BEING FILLED) WILL
 INTERVIEW ALL EMPLOYEE APPLICANTS REFERRED. . . . " THE MATTER WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DENIED THE GRIEVANCE, FINDING THAT THE RIGHT OF THE
 ACTIVITY TO MAKE THE CHANGES IT MADE TO ITS SUPERVISORS' JOB
 DESCRIPTIONS AND WORK ASSIGNMENTS WAS "AS STATUTORILY PROTECTED
 MANAGERIAL RIGHT" UNDER SECTION 7106(A) OF THE STATUTE.  IN SO FINDING,
 THE ARBITRATOR REJECTED THE UNION'S CONTENTIONS THAT THE CHANGE INVOLVED
 AN IMPERMISSIBLE "UNILATERAL ATTACK" ON PROVISIONS WHICH WERE PROPERLY
 PART OF THE COLLECTIVE BARGAINING AGREEMENT UNDER SECTION 7106(B)(2) OF
 THE STATUTE AND WHICH INVOLVED PROCEDURES TO BE FOLLOWED BY THE ACTIVITY
 IN EXERCISING ITS MANAGEMENT RIGHTS.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE AGENCY FILED AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION IN ESSENCE CONTENDS THAT THE AWARD IS
 CONTRARY TO SECTION 7106 OF THE STATUTE.  IN SUPPORT OF THIS EXCEPTION,
 THE UNION ASSERTS THAT THE ARBITRATOR, IN RELYING ON SECTION 7106(A),
 "MADE NULL AND VOID" A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT WHICH WAS PROPERLY INCLUDED IN THAT AGREEMENT IN ACCORDANCE
 WITH SECTION 7106(B) OF THE STATUTE.  /2/
 
    WHILE THE UNION'S EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT, IN THIS CASE THE UNION HAS NOT
 DEMONSTRATED IN WHAT MANNER THE AWARD IS CONTRARY TO SECTION 7106 OF THE
 STATUTE.  THE AUTHORITY HAS PREVIOUSLY HELD THAT AN ARBITRATOR MAY NOT
 INTERPRET OR ENFORCE A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT SO
 AS TO DENY AN AGENCY THE AUTHORITY TO EXERCISE ITS RIGHTS UNDER SECTION
 7106 AND THAT THOSE RIGHTS MAY NOT BE INFRINGED UPON, WAIVED, OR
 RELINQUISHED THROUGH THE AWARD OF AN ARBITRATOR.  PROFESSIONAL AIR
 TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL AVIATION ADMINISTRATION, 5
 FLRA NO. 101(1981).  THE AUTHORITY HAS ALSO HELD THAT, WHILE THE RIGHTS
 OF MANAGEMENT SET FORTH IN SECTION 7106(A) ARE SUBJECT TO SECTION
 7106(B)(2), THIS PROVISION ONLY AUTHORIZES THE ESTABLISHMENT OF
 PROCEDURES TO THE EXTENT THAT THEY DO NOT PREVENT MANAGEMENT FROM ACTING
 AT ALL.  PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, SUPRA.  IN
 THIS CASE, THE ARBITRATOR, TAKING COGNIZANCE OF THE PROVISIONS OF
 SECTION 7106(A) AND 7106(B), CONCLUDED THAT THE ACTIVITY WAS EXERCISING
 A RESERVED MANAGEMENT RIGHT UNDER SECTION 7106(A) WHEN IT CHANGED THE
 POSITION DESCRIPTIONS OF CERTAIN OF ITS SUPERVISORS TO REFLECT THE
 CHANGES BEING MADE IN THEIR WORK ASSIGNMENTS.  THE AUTHORITY AGREES.
 THE CHANGES MADE BY THE ACTIVITY IN THIS CASE WERE CLEARLY WITHIN ITS
 RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK.
 THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., AUGUST 27, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ 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--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED;
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
   .          .          .          .