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21:0083(16)AR - NAGE Local R1-25 and Brockton / West Roxbury VA Medical Center -- 1986 FLRAdec AR

[ v21 p83 ]
The decision of the Authority follows:

 21 FLRA No. 16
                                            Case No. 0-AR-975
    This matter is before the Authority on an exception to the award of
 Arbitrator Francis T. O'Brien 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 Parties submitted to arbitration the issue of whether the
 Activity violated the parties' collective bargaining agreement when it
 required certain employees to work a midweek holiday.  Before the
 Arbitrator the Activity argued that it had properly acted in accordance
 with its right to assign work.  However, the Arbitrator stated that
 management's right to assign work is not absolute and may be abridged by
 provisions of the agreement and by post practices.  In this respect, he
 determined that under the parties' collective bargaining agreement,
 there was an established practice of not requiring employees to world
 midweek holidays.  Accordingly, the Arbitrator sustained the grievance
 and directed the employer to cease and desist from requiring employees
 to work on midweek holidays.
    In its exception the Agency contends that the award is contrary to
 management's right to assign work under section 7106(a)(2)(B) of the
    The Authority has repeatedly recognized 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., American Federation of Government Employees, AFL-CIO,
 Local 1968 and Department of Transportation, Saint Lawrence Seaway
 Development Corporation, Massena, New York 5 FLRA 70, 79 (1981), aff'd
 sub nom.  AFGE Local 1968 v. FLRA, 691 F.23 565 (D.C. Cir. 1982), cert.
 denied 461 U.S. 926 (1983).  Therefore, the Authority has consistently
 held that no arbitration award may interpret or enforce a collective
 bargaining agreement so as to improperly deny an agency the authority to
 exercise its rights under that section.  E.g., U.S. Department of
 Justice, Immigration and Naturalization Service, Western Regional
 Office, San Pedro, California and American Federation of Government
 Employees, Immigration and Naturalization Service Council, Western
 Region, Local 2805, 18 FLRA No. 20 (1985).  In addition, the Authority
 has clearly indicated that no past practice may be established regarding
 the rights enumerated in section 7106(a) that would bind management to
 the Particular manner in which it had exercised such rights in the Past
 so as to preclude management from acting otherwise in the exercise of
 those rights.  See, e.g., Veterans Administration Medical Center,
 Kerrville, Texas and American Federation of Government Employees, Local
 2281, 18 FLRA No. 57 (1985);  Department of the Interior, U.S.
 Geological Survey, Conservation Division, Gulf of Mexico Region,
 Metairie, Louisiana, 9 FLRA 543, 545 (1982).  Section 7106(a) (2) (B) of
 the Statute reserves to management officials the authority to assign
 work.  Encompassed within this right is the right to determine without
 interference when work which has been assigned will be performed.  E.g.,
 National Federation of Federal Employees Council of Consolidated Social
 Security Administration Locals and Social Security Administration, 13
 FLRA 422 (1983);  New York State Nurses Association and Veterans
 Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983).  In
 terms of this case, as has been noted, the Arbitrator determined that
 under the Parties collective bargaining agreement, there was an
 established practice of not requiring employees to work midweek holidays
 and that such practice Precluded management from acting otherwise with
 respect to the assignment of work.  Thus, the Authority finds that by
 effectively prohibiting the assignment of work on midweek holidays, the
 award has enforced the Parties' agreement and practices so as to
 improperly deny the Agency its right under section 7106(a) (2) (B) to
 determine when work which has been assigned will be performed.
 Consequently, the Authority concludes that the award is deficient as
 contrary to section 7106(a) (2) (B) of the Statute.
    Accordingly, for the above reasons, the Arbitrator's award is set
    Issued, Washington, D.C., March 20, 1986
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY