[ v22 p957 ]
The decision of the Authority follows:
22 FLRA No. 96 NAVAL UNDERSEA WARFARE ENGINEERING STATION, KEYPORT, WASHINGTON Activity and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL 282 Union Case No. 0-AR-1014 DECISION I. STATEMENT OF THE CASE This case is before the Authority on an exception to the award of Arbitrator Eaton H. Conant 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. II. BACKGROUND AND ARBITRATOR'S AWARD According to the Arbitrator, the grievance in this case arose when the grievant, a union steward, was transferred from the industrial engineering department in building 82 of the Activity to the research and engineering department of the Activity at a location several miles away. A grievance was filed protesting that this reassignment violated Article 7, section 10 of the parties' collective bargaining agreement because management failed to consult with the Union concerning the transfer between work areas as required by the agreement. After the grievance was filed, the grievant was again reassigned: first, to the building adjacent to building 82 and subsequently, back to building 82, his original work area as a steward. Before the Arbitrator the Activity argued that these subsequent reassignments ultimately returning the grievant to his original building of assignment operated to ameliorate the inadvertent failure to communicate with the Union over the disputed reassignment. The Arbitrator noted that it was not disputed that management violated the collective bargaining agreement when it assigned the grievant to the research and engineering department several miles away from his previous work area assignment. The Arbitrator also noted that the Union contended that management's actions subsequent to the filing of the grievance did not ameliorate the violation and that only an award which returned the grievant to his original position was tenable. Although the Arbitrator stated that this remedy was complicated by the apparent abolishment of the grievant's original position in the industrial engineering department, the Arbtrator agreed with the Union. Accordingly, as his award, the Arbitrator directed that the grievant be returned to his former position in the industrial engineering department under the direction of his former supervisor. The Arbitrator further directed that if the former position is not available because of substantial job redesign, the grievant will be trained to undertake a suitable job in the original work area. III. EXCEPTION A. Contentions of the Agency As its exception the Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute. Specifically, the Agency argues that to the extent the Arbitrator's award directs assignment of the grievant to a particular position, it interferes with management's right to assign work. B. Opposition of the Union In its opposition the Union concedes that the Arbitrator was not authorized to require that the Agency provide training to the grievant. However, the Union maintains that the Arbitrator's direction to return the grievant to his original position, or a suitable alternative, is not contrary to section 7106(a) because it merely constitutes a proper enforcement of an applicable procedure or appropriate arrangement of the parties' collective bargaining agreement. IV. ANALYSIS AND CONCLUSIONS The Authority has consistently 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. The 438 Air Base Group, McGuire Air Force Base, New Jersey and American Federation of Government Employees, Local 1778, 22 FLRA No. 3 (1986). Therefore, the Authority has held that an arbitration award under a negotiated grievance procedure may not 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 previous decisions of the Authority, it is clear that management has the right to assign employees in the agency. It is equally clear that the award in this case interferes with the Activity's exercise of its right to assign employees by rescinding management's current assignment of the grievant and directing that he be reassigned to his original position or a suitable equivalent. See Department of Health and Human Services, Social Security Administration, Charlotte, North Carolina District and American Federation of Government Employees, Local 3509, AFL-CIO, 17 FLRA 103, 104 (1985). However, in these same decisions the Authority has indicated that because management's section 7106(a) rights 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). Id. In this case because the award directly interferes with management's right to assign employees, we find contrary to the argument of the Union that the award does not merely constitute a proper enforcement of an applicable procedure of the parties' collective bargaining agreement. See National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (Proposals 1, 2, and 4). In directing that the grievant be returned to his original position under the direction of his original supervisor, the Arbitrator has not enforced the terms of an applicable negotiated appropriate arrangement of the parties' agreement. Although the Arbitrator ruled that management had violated the parties' agreement by not consulting with the Union concerning the transfer of the grievant, the cited provision only pertains to transfers between work areas and work shifts. The provision does not in any respect pertain to assignments of union stewards to positions in the agency when the work area remains the same. Consequently, once the grievant was reassigned to a building adjacent to, and subsequently back to, his original building of assignment, the Arbitrator's remedy of directing that the grievant be returned to his original position under the direction of his original supervisor or to a suitably equivalent position was not founded on any specific negotiated agreement of the parties and was solely the creation of the Arbitrator. See SSA, Charlotte, North Carolina District, 17 FLRA at 105. As the Authority acknowledged in SSA, Charlotte, North Carolina District, an arbitrator may legitimately bring his or her judgment to bear in reaching a fair resolution of a dispute, but an arbitrator may not "dispense his (or her) own brand of industrial justice." Id. (citing Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)). The award in this case, which interferes with management's right to assign employees and to assign work, as it pertains to training, does not constitute the enforcement of an applicable negotiated procedure or appropriate arrangement. The award is therefore deficient as contrary to section 7106(a) of the Statute. V. DECISION Accordingly, for the above reasons, the Arbitrator's award is modified to strike the remedy of returning the grievant to his original position or to a suitably equivalent position in his original work area. Issued, Washington, D.C., July 30, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7106(b)(2) and (3) provide: ((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.