Colorado Air National Guard, Buckley ANG Base (Activity) and Association of Civilian Technicians, The Columbine Council (Union)
[ v07 p03 ]
The decision of the Authority follows:
7 FLRA NO. 1
COLORADO AIR NATIONAL GUARD, BUCKLEY ANG BASE Activity and ASSOCIATION OF CIVILIAN TECHNICIANS, THE COLUMBINE COUNCIL Union Case No. 0-AR-75
This matter is before the Authority on exceptions to the award of Arbitrator George E. Bardwell filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (5 U.S.C. 7122(a)) (the Statute).
According to the Arbitrator, this grievance arose when the Activity assigned three aircraft mechanics the task of moving partitions from one place to another. The work was performed under protest and a grievance was filed alleging a violation of Article XXIX, Section A of the parties' collective bargaining agreement. 1 The parties stipulated the following issues to the Arbitrator:
1. Is the matter arbitrable?
2. Did Management violate Article XXIX, Section A, of the negotiated agreement when a management official directed employees classified as aircraft mechanics to move green partitions from one building to another? [ v7 p3 ]
The parties also stipulated that the assigned work was "not job related to (the) aircraft mechanic position." The Arbitrator held the grievance to be arbitrable and found the moving of partitions to be "alien and far outside the periphery of the kinds of duties required of mechanics outlined in the Position Description." He stated that "(t)he assignment of these duties by Management violates the spirit and intent of Section A, Article XXIX." He then issued the following award:
The grievance . . . is sustained.
The Agency filed exceptions to the Arbitrator's award under section 7122(a) of the Statute 2 and part 2425 of the Authority's Rules and Regulations (5 CFR part 2425). The Union did not file an opposition.
In its first exception the Agency contends that the Arbitrator "exceeded his authority in fashioning the remedy." In support of this exception the Agency argues that the award, by sustaining the grievance, "implicitly adopts the remedy sought in the original grievance," 3 and therefore the Arbitrator exceeded the limits [ v7 p4 ] specifically placed on his authority by the submission agreement, which posed only a "yes" or "no" question as to whether the contract had been violated.
The Authority will find an award deficient where it appears, on the basis of the exception, that the arbitrator exceeded his or her authority by rendering an award in disregard of a plain and specific limitation on that authority. Department of the Air Force, McGuire Air Force Base and Local 1778, American Federation of Government Employees, 3 FLRA No. 38 (1980). However, in this case the Agency has not established that the Arbitrator exceeded his authority. The parties stipulated to the Arbitrator the question of whether or not the Activity had violated the collective bargaining agreement. In the opinion accompanying his award, the Arbitrator does not mention the relief originally sought by the Union, nor does he mention any other relief. His opinion consists of the analysis he undertook in concluding that the Activity violated the contract, thereby answering the question submitted to him in the affirmative. In these circumstances there is no basis to conclude that the Arbitrator went beyond his authority. Therefore, the Agency's first exception provides no basis for finding the award deficient under 5 U.S.C. 7122(a) and section 2425.3 of the Authority's Rules and Regulations.
In its second exception the Agency contends that the award violates section 7106(a) of the Statute in that it infringes upon the Agency's right to determine its organization and to assign work to its employees. 4 As with its first exception, the Agency's arguments are based upon its view that the Arbitrator implicitly adopted the remedy originally sought by the Union, i.e., "that all additional assignments (of work) . . . will be directly job related." The Agency asserts that such a remedy proscribes the assignment of certain duties to employees and is therefore contrary to section 7106(a). The Agency [ v7 p5 ] also argues that the award intrudes upon the Agency's right to determine the content of certain positions as a matter of the Agency's organization.
While the Authority will find an award deficient under section 7122(a)(1) of the Statute on the ground that the award is contrary to section 7106(a), the Agency has not established that the award is contrary to the cited provisions of the Statute. As previously discussed, the Arbitrator's award does not direct the Agency to undertake the specific action sought by the Union or any other action. In such circumstances, we find no basis to conclude that the Arbitrator's affirmative answer to the question presented to him infringes upon management's 7106(a) rights to determine its organization or to assign work to its employees, rights which the Authority has recognized may not be infringed upon, waived, or relinquished through the award of an arbitrator. See American Federation of Government Employees, Local 1712 and United States Army, 172nd Infantry Brigade (Alaska), 6 FLRA No. 85 (1981). Therefore, the Agency's second exception provides no basis for finding the award deficient under 5 U.S.C. 7122(a) and section 2425.3 of the Authority's Rules and Regulations.
In its third exception the Agency contends that the award is so ambiguous as to make implementation impossible. In support of this exception the Agency contends that the award may be construed as proscribing the assignment of certain duties in violation of section 7106(a) or it may be construed as finding that the Activity committed a technical violation of the agreement without granting any remedy. The Agency asserts that while the latter interpretation may be consistent with the limits on the Arbitrator's authority set forth in the submission agreement, it is at odds with the context of the Arbitrator's opinion. Relying upon Hanford Atomic Metal Trades Council v. General Electric Company, 353 F.2d 302 (9th Cir. 1965), the Agency contends that an arbitration award must be read in the context of its accompanying opinion and that various statements made by the Arbitrator in his opinion are evidence that he adopted the Union's requested remedy. Finally, the Agency argues that while the Authori