17:0966(130)AR - NASA, Lewis Research Center and IFPTE Local 28, LESA -- 1985 FLRAdec AR

 17 FLRA No. 130
 
 NATIONAL AERONAUTICS AND 
 SPACE ADMINISTRATION, LEWIS 
 RESEARCH CENTER
 Activity 
 
 and 
 
 INTERNATIONAL FEDERATION OF 
 PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 28, LESA (AFL-CIO) 
 Union
 
                                            Case No. 0-AR-636
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Roland Strasshofer, Jr. filed by the Activity under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
 
    A grievance was filed and submitted to arbitration claiming that
 management violated law and the parties' collective bargaining agreement
 by changing the duties and responsibilities of the grievant.  The
 Arbitrator determined that the Activity's removal of functions, duties,
 and responsibilities from the grievant was a reprisal for the request of
 the grievant that the classification of her position be reviewed.  The
 Arbitrator ruled that these actions constituted a prohibited personnel
 practice under 5 U.S.C. 2302(b)(9) which prohibits the taking of a
 personnel action against an employee as a reprisal for the exercise of
 any appeal right granted by law, rule, or regulation.  Accordingly, as
 his award to remedy the prohibited personnel practice, the Arbitrator
 ordered that the duties and responsibilities which were removed from the
 grievant during the period between September 8, 1980, and October 15,
 1981, shall be returned to her;  that a new desk audit will then be
 conducted;  and that the grievant's appeal rights with respect to the
 new audit are preserved as guaranteed by the parties' collective
 bargaining agreement.
 
    In its first exception the Activity contends that the award is
 contrary to section 7106(a) of the Statute.  Specifically, the Activity
 essentially argues that the ordered return of particular duties and
 responsibilities to the grievant conflicts with management's right under
 section 7106(a)(2)(B) to assign work and to determine the personnel by
 which agency operations shall be conducted.
 
    The Authority concludes that the Activity has failed to establish in
 what manner the award is contrary to section 7106(a)(2)(B) of the
 Statute.  As has been noted, the Arbitrator found that the duties were
 removed from the grievant as a reprisal for her request of a review of
 the classification of her position, which reprisal constituted a
 prohibited personnel practice under section 2302(b)(9).  As a remedy,
 the Arbitrator has merely required for the purposes of a new
 classification desk audit the reassignment of that work to the grievant.
  In this regard the Authority has previously indicated that management
 rights must be exercised in accordance with applicable laws, and the
 Authority therefore specifically held that a proposal which would
 prohibit discrimination which constituted a prohibited personnel
 practice under section 2302(b)(10) was not inconsistent with the proper
 exercise of those rights.  American Federation of Government Employees,
 AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile
 Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (proposal 1).
 Moreover, the Authority further held that prohibited personnel practices
 affect conditions of employment and that a prohibition against such
 practices may be enforced through the negotiated grievance procedure
 unless such matters are excluded by the parties.  Id.  In terms of
 whether the award constitutes a proper enforcement, the Authority
 indicated in National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 14 FLRA 243 (1984) (provision 3)
 that a preclusion against the reassignment of work from employees and
 positions involved in a classification appeal until the completion of
 the appeal if the reassignment was intended to negate the classification
 appeal did not interfere with management's right to assign work under
 section 7106(a)(2)(B).  Thus, the Authority finds that the Activity's
 exception provides no basis for finding the award deficient.
 
    In its second exception the Activity essentially contends that the
 award is contrary to section 7106(b)(1) of the Statute by interfering
 with management's right under that provision to determine the grade of
 employees and positions assigned to an organizational subdivision, work
 project, or tour of duty.  Assuming that the parties' collective
 bargaining agreement contains no applicable negotiated provision
 constituting the Activity's election under section 7106(b)(1) to
 negotiate, the Authority concludes that the Activity has failed to
 establish in its exception that the award concerns a matter which is
 negotiable only at the election of the Activity under Section
 7106(b)(1).  The Agency has in no manner established that the award is
 directly or integrally related to the grades of employees or positions
 assigned to an organizational subdivision, work project, or tour of duty
 so as to be determinative of such grades.  See, e.g., National Treasury
 Employees Union, Chapter 66 and Internal Revenue Service, Kansas City
 Service Center, 1 FLRA 927, 928-30 (1979).  Consequently, the second
 exception provides no basis for finding the award deficient.
 
    In its third exception the Activity contends that the award is
 contrary to section 7121(c)(5) of the Statute which excludes from
 grievance and arbitration most grievances concerning the classification
 of any position.  In support the Activity argues that to the extent the
 Arbitrator by indirection has ordered a promotion the exclusionary
 provisions of section 7121(c)(5) apply.  The Authority however concludes
 that the Activity has failed to establish that the award is contrary to
 section 7121(c)(5).  Contrary to the assertion of the Activity, the
 Authority finds that the award in no manner, by indirection or
 otherwise, orders the promotion of the grievant.  Moreover, in resolving
 the grievance the Arbitrator did not order any change in the
 classification, grade, or pay system of the grievant's position.  See
 U.S. Department of Labor and American Federation of Government
 Employees, Local No. 644, NCFLL, 12 FLRA 639 (1983).  Consequently, no
 basis is provided for finding the award deficient as contrary to section
 7121(c)(5).
 
    Accordingly, the Activity's exceptions are denied.  Issued,
 Washington, D.C., May 9, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY