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17:0103(21)AR - HHS, SSA, Charlotte, North Carolina District and AFGE Local 3509 -- 1985 FLRAdec AR

[ v17 p103 ]
The decision of the Authority follows:

 17 FLRA No. 21
                                            Case No. O-AR-418
    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
    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
                                       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.