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U.S. Federal Labor Relations Authority

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The decision of the Authority follows:

27 FLRA NO. 44






Case No. 0-AR-1280


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. W. Dees filed by the Department of the Navy (Agency) on behalf of the Naval Air Rework Facility, Jacksonville, Florida (Activity) under section 7122 (a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The dispute arose when the Activity permanently reassigned two employees on the "B" shift for cross-training purposes. The Activity reassigned John Brock from section 42220 to section 42210 and Irene Vanderhorst from section 42210 to section 42220. The Union filed a grievance on behalf of another employee concerning the rotation. The grievance alleged that when Mr. Brock was reassigned, a vacancy was created which the Activity failed to fill in accordance with the parties' collective bargaining agreement. The agreement provides that the "B" shift will be staffed by volunteers, if available, and sets forth procedures for selection of volunteers for vacant positions.

The Arbitrator agreed with the Union's position. He further determined that there was no justification in the  parties' agreement for the Activity's permanent reassignment of the employees for training purposes because one year of training had been provided at the entry level. The Arbitrator therefore sustained the grievance and ordered the Activity to: (1) cancel Mr. Brock's assignment to section 42210 and reassign him to his original position in section 42220; and (2) assign the grievant to the "B" shift with retroactive shift differential pay.

III. Exceptions

The Agency contends that the award violates management's right to assign work under section 7106 (a)(2)(B) of the Statute. Specifically, the Agency contends that an arbitration award may not interpret or enforce a collective bargaining agreement so as to deny an agency the authority to exercise the discretion to determine the particular employees to whom work will be assigned. The Agency argues that the Arbitrator has wrongfully substituted his judgment for that of management in determining which employees are in need of cross-training.

The Agency also contends that the Arbitrator exceeded his authority in rendering the award. The Agency maintains that the Arbitrator decided an issue not properly before him by declaring that a vacancy existed on the "B" shift and by deciding that the grievant should be selected for the vacancy. The Agency argues that the "B" shift employees' exchange of positions does not create a vacancy.

The Union responded to the Agency's exceptions and argues that the Activity did not comply with agreement pro-visions regarding procedures for using volunteers to fill vacancies on the "B" shift.

IV. Analysis and Conclusion

For the reasons that follow, we find that the Arbitrator's award in this case is deficient because it is contrary to section 7106 (a)(2)(A) of the Statute.

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 Authority therefore has repeatedly held that an arbitration award may not interpret or enforce a collective bargaining  agreement so as to improperly deny an agency the authority to exercise its rights under section 7106 (a) . See, for example, Naval Undersea Warfare Engineering Station, Keeport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA No. 96 (1986). Section 7106 (a)(2)(A) reserves to management the right to assign employees. Furthermore, we have consistently held that arbitrators may not substitute their judgment for that of the agency in the exercise of those rights. See American Federation of Government Employees, Local 1960 and Department of the Navy, Development Center, 26 FLRA No. 31 (1987) (where an arbitrator ordered that the grievant resume supervisory duties and be given backpay, and further ordered that the selectee be removed from the position with his tenure in that position treated as a detail).

In this case, the Activity essentially rotated the two employees on the "B" shift for cross-training purposes. By directing the Activity to cancel the assignment of one of the employees, reassign him to his original position, and to assign the grievant to the "B" shift, the award clearly interferes with the Activity's exercise of its right to assign employees under section 7106 (a) (2)(A) .

Moreover, we find that the Arbitrator's award does not constitute proper enforcement of an applicable negotiated procedure or appropriate arrangement under section 7106 (b)(2) or (3) of the Statute. Rather, the Arbitrator has interpreted the provision in the parties' agreement pertaining to the filling of vacancies on the "B" shift so as to effectively preclude the Activity from rotating employees on the "B" shift on a permanent basis for cross-training purposes. In these circumstances, we conclude that the award improperly interferes with management's right to assign employees under section 7106 (a)(2)(A) and that the award is deficient in its entirety. Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028, AFL - CIO, 25 FLRA No. 39 (1987).

Because the award is set aside on these grounds, we do not reach the Agency's other exception. 

V. Decision

Accordingly, the Arbitrator's award is set aside as contrary to section 7106 (a)(2)(A) of the Statute.

Issued, Washington, D.C.,May 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member