[ v34 p161 ]
The decision of the Authority follows:
34 FLRA NO. 36 U.S. DEPARTMENT OF THE ARMY ARMOR CENTER FORT KNOX, KENTUCKY and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2302 0-AR-1608 DECISION January 9, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator W. Thomas Mulhall filed by the Department of the Army (the Agency) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The American Federation of Government Employees, Local Union No. 2302 (the Union) filed an opposition to the Agency's exceptions. The Arbitrator found that the Agency violated the parties' collective bargaining agreement by detailing the grievant, a WG-10 employee, to perform the work of a WG-11 employee who was on annual leave. The Arbitrator sustained the Union's grievance, but limited his findings to the facts of the grievance. The Arbitrator awarded no remedy. The Agency excepts to the Arbitrator's award, contending that it violates management's rights under the Statute to assign employees and to assign work. For the reasons that follow, we conclude that the Agency has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions. II. Background and Arbitrator's Award A WG-11 employee of the Agency's Utilities Maintenance Section, Fort Knox, was scheduled to be on annual leave on September 23 and 24, 1987. The Agency's foreman detailed the grievant, a WG-10 employee, to perform the WG-11's work on September 23 and 24. The detail was later changed, and the grievant performed the WG-11's work only on September 24. Award at 3-4. The Union filed a grievance, alleging that the detailing of the grievant violated the procedures set forth in the parties' negotiated agreement for assignments in those circumstances. Award at 1. The Agency responded that the action it took was an exercise of management's right to detail or assign employees and that the detailing of the grievant was consistent with the requirements of the parties' negotiated agreement, the Federal Personnel Manual (FPM), and Army Regulations. Award at 1-3. The Arbitrator stated the issue to be: Did the Agency violate the LMA (the parties' negotiated agreement) by its assignment of the grievant to the work of September 23 and (2)4, 1987? If so, what is the proper remedy? Award at Title Page. The Arbitrator stated that the following questions were raised: (1) what is the proper contractual procedure to have an employee of one skill group (WG-10) cover the work and vacancy of another skill group (WG-11)?; (2) may management use either the detail provisions (Article 24) or the tour change provisions (Article 9) to cover a vacancy in one skill group (WG-11), by the use of another skill group (WG-10), when the vacancy would result in overtime work in the skill group in which it occurs (WG-11)?; and (3) may a detail be used for the same purpose as a tour change? Award at 14-15. The Arbitrator noted that Article 24 of the parties' agreement is taken from FPM chapter 300, subchapter 8. The Arbitrator found that subchapter 8 provides that "a detail is an assignment of an employee for very specific purposes" and that details "are 'appropriate under circumstances' to meet emergencies occasioned by abnormal work load, special projects or studies, change in mission or organization, or unanticipated absences." Award at 15. He found that subchapter 8 also allows details "pending an official assignment, pending description and classification of new positions, pending security clearance, and for training purposes." The Arbitrator found that none of these factors was present in this case. Id. The Arbitrator found that, from the "overall concept of Subchapter 8" and "based upon a reading of the clear language" of Article 24 of the parties' agreement, it was inappropriate to use a detail for temporary assignments of very short duration except where justified by unanticipated absences. Award at 16. He then found that "once finding that the vacancy was w(e)ll known and anticipated, it was improper for management to use the provision of a detail to cover the anticipated vacancy which occurred in the WG-11 group, due to scheduled leave." Id. Based on that finding, the Arbitrator determined that: (1) the vacancies should have been covered in accordance with Article 9, Section 4 of the parties' agreement as a short term change in tours of duty; (2) it was inappropriate to change the tour of duty of a WG-10 skill group employee in order to cover a vacancy in the WG-11 skill group; (3) if a vacancy occurs in the WG-11 skill group, it may be covered by management's exercise of its right to temporarily change the tour of duty, under Sections 4 and 6 of Article 9, or it must be covered in accordance with the overtime provisions of the agreement; and (4) overtime is to be distributed according to skill groups and a vacancy may not deprive the WG-11 skill group of overtime opportunities by temporary transfer or change in tours of duty among the WG-10 skill group. Award at 17. The Arbitrator rejected the Agency's argument that Article 9, Section 6(j) of the parties' agreement allowed the Agency's action. Award at 17-18. The Arbitrator concluded that the grievance must be sustained, but found that "much of the remedy sought by the Union" was beyond his authority. Award at 18. The Arbitrator found that he had no authority to order the Agency to comply with the parties' agreement in the future. The Arbitrator found also that he was without authority to grant a monetary award. The Arbitrator stated that he could "only sustain the Union's argument(s) insofar as they relate to the facts of this grievance." Id. As his award, the Arbitrator stated: "I can only rule that the agency violated the contracts and regulations when it used the detail provisions for these particular vacancies." Award at 18. III. Positions of the Parties The Agency contends that the Arbitrator's award must be set aside because it violates management's rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees and to assign work. The Agency argues that the Arbitrator's award amounts to a finding that management is precluded from assigning WG-10 employees to fill temporary WG-11 vacancies, and is prohibited from detailing a WG-10 employee to fill a temporary WG-11 vacancy. Exceptions at 2. The Agency argues further that because the award prescribes the method for filling all temporary WG-11 vacancies, the Agency is unable to fill positions by the method it deems most appropriate and to select the employee who best meets the qualifications necessary to perform a certain function or assignment. Id. The Union argues that the Agency's exceptions do not properly reflect the issues before the Arbitrator, and have incorrectly interpreted the Arbitrator's limited award. The Union further argues that the award does not, as alleged by the Agency, prohibit management from filling vacancies but deals only with the procedures negotiated by the parties. Finally, the Union contends that the exceptions are only an attempt to reargue the issues decided by the Arbitrator. IV. Discussion We find that the Arbitrator's award does not interfere with management's rights under section 7106(a)(2) and, therefore, is not deficient under the Statute. The Arbitrator's award provided no remedy for the contractual violations found in this case and will not determine the outcome of any future grievances. The award neither precludes management from assigning or detailing WG-10 employees to fill temporary WG-11 vacancies, as alleged by the Agency, nor prescribes a method for filling WG-11 vacancies. The award does not order the Agency to take any action or to refrain from exercising any of its rights under the Statute. The Arbitrator found that he had no authority to order the Agency to comply with the parties' agreement in the future or to grant any monetary award. He explained that he was sustaining the grievance, but was ruling only that the Agency violated the parties' agreement by using the detail provisions of the agreement in the circumstances of this case. We conclude that the award does not violate management's rights under the Statute to assign employees and to assign work because it does not require the Agency to take or to refrain from taking any action pursuant to those rights. Because the award does not violate management's rights under the Statute, it is not inconsistent with law and, consequently, is not deficient under section 7122(a). Therefore, we deny the Agency's exceptions. V. Decision The Agency's exceptions are denied.