[ v17 p103 ]
The decision of the Authority follows:
17 FLRA No. 21 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, CHARLOTTE, NORTH CAROLINA DISTRICT Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3509, AFL-CIO Union Case No. O-AR-418 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Harold D. Jones, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The grievance involved herein concerned the grievant's reassignment from the position of claims representative trainee, GS-7, to the position of service representative, GS-7. A grievance was filed and submitted to arbitration claiming that the reassignment was not in accordance with the parties' collective bargaining agreement. The Arbitrator determined that the Activity had reassigned the grievant in order to avoid having to take disciplinary action against him, which action would have to be in accordance with Article 22, Disciplinary and/or Adverse Actions, of the parties' agreement. Consequently, the Arbitrator ruled that the reassignment was not in accordance with the agreement and directed that the grievant be returned to the position of claims representative trainee, GS-7. In one of its exceptions the Agency essentially contends that the award, by directing the Activity to assign the grievant back to the position of claims representative trainee, GS-7, is contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. In support of this exception, the Agency primarily argues that the remedy interferes with its right to assign employees and that the remedy has no basis in the parties' agreement. The Agency asserts that Article 22 cited by the Arbitrator relates solely to disciplinary actions taken by the Activity and that the agreement contains no prohibition against taking other actions in lieu of discipline. In opposition to this exception, the Union essentially argues that the award is not contrary to section 7106(a) because it simply enforces appropriate arrangements that the parties have properly negotiated for employees adversely affected by the exercise of any authority under section 7106(a). The Authority has uniformly held that the plain language of section 7106(a) provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., Professional Air Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763, 767 (1981). Therefore, the Authority has consistently held that no arbitration award under a negotiated grievance procedure may interpret or enforce a provision of a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a) of the Statute. Id. Under the language of section 7106(a)(2)(A) of the Statute and under the decisions of the Authority, it is clear that management has the right to assign employees in the agency, and it is likewise clear that the award at issue in this case interferes with the Activity's exercise of that right by rescinding management's assignment of the grievant from the position of claims representative trainee, GS-7, to the position of service representative, GS-7. However, in these same decisions the Authority has indicated that because the rights of management set forth in section 7106(a) are subject to section 7106(b)(2) and (3), /1/ an award that is claimed to interfere with rights under section 7106(a) that enforces an applicable procedure or appropriate arrangement which has been negotiated by the parties may not necessarily be contrary to section 7106(a). See id. at 768-69. Thus, in Internal Revenue Service, Austin District and National Treasury Employees Union, NTEU Chapter 52, 9 FLRA 672, 674 (1982), an award that simply enforced a properly negotiated appropriate arrangement under section 7106(b)(3) of the Statute was determined not to be contrary to section 7106(a) of the Statute. In IRS the appropriate arrangement for employees adversely affected by management's exercise of its authority to take disciplinary action which the parties had negotiated under section 7106(b)(3) provided that "(r)eassignments will not be used in lieu of discipline." The arbitrator in that case determined that the attempted reassignment of the grievant by the activity violated that provision and ordered that the grievant be made whole for the violation. As part of its exceptions the agency argued that the arbitrator's enforcement of that provision was contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. In rejecting this argument, the Authority explained that the provision enforced by the arbitrator was properly agreed to as an appropriate arrangement which operated to prevent the use of reassignments in lieu of discipline in order that the legal, regulatory, and collective bargaining agreement procedures, protections, and arrangements afforded an employee against whom disciplinary action is taken may not be circumvented. In terms of this case, in contrast to IRS and contrary to the argument of the Union that the Arbitrator was simply enforcing an appropriate arrangement, the Arbitrator did not enforce a negotiated provision of the parties' collective bargaining agreement providing an appropriate arrangement for employees adversely affected by the Activity's exercise of the authority under section 7106(a)(2)(A) to assign employees. Although the Arbitrator ruled that the reassignment was not in accordance with the agreement, the only provision cited in this respect relates to discipline and adverse actions. The provision does not in any respect relate to reassignments and in no manner purports to restrict the Activity's assignment of employees. Thus, the prohibition against the reassignment of the grievant was not founded on any specific negotiated agreement of the parties and was solely the creation of the Arbitrator. Although the U.S. Supreme Court has acknowledged that an arbitrator may legitimately bring his or her judgment to bear in reaching a fair solution of a dispute, the Court at the same time stated that an arbitrator may not legitimately "dispense his (or her) own brand of industrial justice." Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Consequently, the award, which interferes with management's right to assign employees in the agency and which does not constitute the enforcement of an applicable negotiated appropriate arrangement, is contrary to section 7106(a)(2)(A) and must be modified. Accordingly, the award is modified to provide as follows: /2/ It is the Award of the Arbitrator that the Form 623-A for the period October 1, 1980 through September 30, 1981 given Mr. Jerry W. Drye by the Employer on October 21, 1981 was in accordance with the Negotiated Agreement. Accordingly, no remedy is directed. Issued, Washington, D.C., March 5, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7106(b) pertinently provides: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. /2/ In view of this decision, it is not necessary to address the other exceptions to the award.