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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 Authority may disagree with the Agency's reading of the award, it must conclude that the award is vague and ambiguous. Relying upon Longshoremen Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64 (1967), the Agency argues that absent some means of measuring compliance the award is unenforceable and should be set aside or remanded.
While the Authority will find an award deficient where it appears, on the basis of the exception, that the award is incomplete, ambiguous, or contradictory so as to make implementation impossible, Veterans [ v7 p6 ] Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA No. 12 (1981), the Agency's exception in this case provides no basis for finding the award deficient on that ground. The Arbitrator's award, when read in the context of the accompanying opinion, is directed only to a finding of a contract violation. The portions of the Arbitrator's opinion referred to by the Agency immediately follow the Arbitrator's interpretation of Article XXIX, Section A, and his conclusion that "(t)he assignment of these duties by Management violates the spirit and intent of Section A, Article XXIX." Based upon this conclusion, the Arbitrator sustained the grievance and thus affirmatively answered the question submitted to him. The Agency has not established that such an award is in any manner ambiguous.
The Agency's claim that the award should be set aside because it does not require a definite act by which compliance can be measured likewise provides no basis for finding the award deficient. As asserted by the Agency in its first exception, the question stipulated to the Arbitrator was subject exclusively to a "yes" or "no" answer. In their written submission to the Arbitrator in this case, the parties requested him to render an interpretation of the agreement as applied to a specific factual situation. The Arbitrator complied with that request. Thus, the Agency has failed to demonstrate that the award is unclear regarding an act requiring compliance. Therefore, the Agency's third 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.
For the foregoing reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., October 8, 1981 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 According to the Arbitrator, Article XXIX, Section A provides: ARTICLE XXIX--ASSIGNMENT OF WORK Section A. When the term "such other duties as may be assigned" or equivalent language is used in a position description, the term is understood to mean tasks that are related to the position.
Footnote 2 5 U.S.C. 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.
Footnote 3 The original "Grievance Form" requested the following remedy in response to the question "(w)hat is your proposed solution?": Management's disregard for the dignity of their employees is evident by the repeated violations of Article XXIX Section A of the General Agreement, resulting in unfavorable working conditions and decaying morale. (Therefore) I suggest management officials draft a letter assuring the (workforce) that all additional assignments from this time forward will be directly job related as the before mentioned Article clearly states. Each employee would receive a copy.
Footnote 4 5 U.S.C. 7106(a) provides in pertinent part as follows: 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 . . . organization . . . of the agency; and (2) in accordance with applicable laws-- (A) to hire, assign, direct, layoff, and retain employees in the agency . . . ; (B) to assign work . . . (.)