22:0957(96)AR - Naval Undersea Warfare Engineering Station, Keyport, WA and IAM Local 282 -- 1986 FLRAdec AR
[ v22 p957 ]
22:0957(96)AR
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.