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38:0074(11)AR - - Air Force, MacDill AFB, FL and NFFE Local 153 - - 1990 FLRAdec AR - - v38 p74

[ v38 p74 ]
The decision of the Authority follows:

38 FLRA No. 11












November 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 Stanley H. Sergent. A grievance was filed disputing the assignment of duties that were not within the ordinary scope of the grievants' employment. The Arbitrator sustained the grievance, ruling that the Agency should discontinue such assignments.

The Agency filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

For the reasons which follow, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The dispute arose when several firefighters were assigned to paint the exterior of a fire station. That assignment resulted in a class action grievance alleging "that [m]anagement violated [s]ection 12.1 of the Memorandum of Agreement by requiring bargaining unit employees to perform duties outside their position descriptions." Award at 2. The grievance noted that the Agency had "[p]ainters whose specific duties [consisted of] painting facilities." Id. at 3.

When the grievance remained unresolved, the matter was submitted to arbitration on the following issue: "[W]hether or not [m]anagement had the right to assign painting duties to [firefighters]." Id. at 7.

The Arbitrator concluded "that the crux of th[e] dispute involve[d] the resolution of two conflicting provisions" of the parties' Memorandum of Agreement (MOA). Id. at 9-10. According to the Arbitrator, Section 12.1 of the MOA "explicitly recognize[d] that employees will not be required to perform duties outside their regular field of work." Id. at 10. (1) The Arbitrator also noted that section 4.1 of the MOA 2/ "just as clearly suggests that the Agency has an absolute and unrestricted right to assign work without regard to job classification or position descriptions . . . ." Id.

The Arbitrator concluded that the correct interpretation of the two provisions was that the broad authority conferred on the Agency to assign work pursuant to section 4.1 was expressly limited by the restrictions set forth in section 12.1. Id. at 10. The Arbitrator noted that, pursuant to section 7106(b)(2) and (b)(3) of the Statute, "the parties are specifically authorized to negotiate . . . limitations on an [a]gency's basic authority to assign work." Id. at 13. As part of his award, the Arbitrator determined that "the appropriate remedy . . . [was] an order requiring the Agency to honor its commitment under [s]ection 12.1 of the MOA and to cease and desist from assigning employees to perform duties that [were] outside their regular field of work." Id. at 15.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency asserts that the award is deficient because it is contrary to law. Specifically, the Agency maintains that the Arbitrator's interpretation of the MOA prevents management from exercising its right to assign work, and to determine the personnel by which agency operations will be conducted, under section 7106(a)(2)(B) of the Statute. Exceptions at 4. The Agency also contends that the Arbitrator's finding, that section 12.1 of the MOA must be viewed as binding under section 7106(b)(2) or (b)(3), is contrary to law because section 12.1 "excessively interferes with management's rights." Id. at 6 (emphasis in original). The Agency asserts that the provision is not enforceable because management may not waive its "right to assign duties." Id. at 7.

B. The Union's Opposition

The Union maintains that "[t]he Arbitrator's opinion and award are amply supported by the plain language of [the Statute]." Opposition at 3. The Union also contends that, after negotiations between the parties, the Agency should not be free to ignore and declare void an agreement that was previously reviewed and approved by the head of the Agency. Id. at 5.

IV. Analysis and Conclusions

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), we reexamined our approach to cases involving an arbitrator's enforcement of contractual provisions relating to management's rights under section 7106(a) of the Statute. We held that, in resolving exceptions alleging that an arbitrator's enforcement of a contractual provision is contrary to management's rights under section 7106(a), we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

We stated that if it is evident that a provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Customs Service, 37 FLRA at 314. Accordingly, we held that we will not find that such an award is contrary to law. Id. We also held that, when an arbitrator is presented with a provision that constitutes an arrangement, the arbitrator may not refuse to enforce the provision on the basis of a conflict with management's rights under section 7106 of the Statute unless the provision abrogates a management right. Id. at 315.

Applying the approach set forth in Customs Service to this case, we conclude that the Agency fails to establish that the award is deficient. On its face, section 12.1 of the MOA constitutes an arrangement for firefighters who are, or would be, adversely affected by the exercise of management's rights under section 4.1. Indeed, the provision specifically references such adverse effects as injuries resulting from an employee's performance of duties about which the employee lacked knowledge. In addition, the Arbitrator stated "that the parties did not negotiate and bargain for language as clear and precise as that contained in [s]ection 12.1 without intending that such language be applied to prevent situations such as that which gave rise to the present dispute." Award at 11.

Moreover, the Arbitrator's interpretation of section 12.1 does not preclude the Agency from assigning the painting duties to other employees or from assigning work to firefighters. Therefore, as interpreted and applied by the Arbitrator, section 12.1 does not abrogate the exercise by management of its rights to assign work and to determine the personnel by which Agency operations will be conducted. Accordingly, the Arbitrator merely enforced an appropriate arrangement negotiated by the parties, and such enforcement provides no basis for finding the award contrary to section 7106(a)(2)(B) of the Statute as asserted by the Agency.

In this regard, the Agency is incorrect in contending that, because section 12.1 may "excessively interfere[]" with management's rights, that provision is unenforceable. Exceptions at 6 (emphasis in original). Consistent with Customs Service, when an agency maintains that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a), we will not apply the test established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), "to determine whether the provision excessively interferes with the exercise of a management right." Customs Service, 37 FLRA at 314. According to Customs Service:

This is a matter for the negotiation process under the Statute. Instead, we will determine whether a negotiated arrangement as enforced by an arbitrator abrogates management's rights.


Finally, the Agency is correct in asserting that management rights under section 7106(a) of the Statute cannot be waived or relinquished through collective bargaining. See Michigan Air National Guard, Selfridge ANG Base Michigan and The Association of Civilian Technicians, Michigan State Council, 34 FLRA 296, 298 (1990). However, when presented with exceptions to an arbitrator's award under section 7122(a) where an arrangement has been negotiated by the parties and, as interpreted and applied by an arbitrator, does not abrogate management's rights, enforcement of that provision does not constitute a waiver of management's rights. Customs Service, 37 FLRA at 315.

Section 12.1 of the MOA, as interpreted and applied by the Arbitrator, does not abrogate management's rights. Accordingly, we will deny the Agency's exceptions.

V. Decision

The Agency's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Section 12.1 provides:

Each employee is entitled to a complete and accurate position description, which shall be reviewed with the supervisor as necessary, but no less than once every two years, or upon [the] employe[e's] request. The phrase 'performs other duties as assigned' in an employee's position description shall not be construed to require the employee to perform duties outside his/her regular field of work, or for which [sic] might result in injury to the employee or fellow employees due to lack of knowledge of [the] task.

Award at 5-6.

2. Section 4.1 provides, as relevant here, that nothing in the Agreement shall affect the Agency's authority "in accordance with applicable laws[,] . . . to assign work, . . . and to determine the personnel by which [Agency] operations shall be conducted[.]" Id. at 5.