15:0959(178)AR - Justice, Federal Prison System and AFGE, Council of Prison Locals, Local 1741 -- 1984 FLRAdec AR
[ v15 p959 ]
15:0959(178)AR
The decision of the Authority follows:
15 FLRA No. 178 U.S. DEPARTMENT OF JUSTICE, FEDERAL PRISON SYSTEM Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF PRISON LOCALS, LOCAL 1741 Union Case No. O-AR-389 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Sol M. Elkin 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. The parties stipulated the following issue for determination by the Arbitrator: Whether Management violated the collective bargaining agreement when it reassigned the Grievant from his position as Security Officer to the position of Senior Specialist. If so, what shall be the remedy? The Arbitrator determined that the grievant's reassignment was procedurally deficient under the parties' collective bargaining agreement and was not in accordance with 5 U.S.C. 4302(b)(6) /1/ providing an employee an opportunity to demonstrate acceptable performance before reassignment. Accordingly, the Arbitrator awarded as follows: The grievance is granted. The Grievant shall be reinstated to the position he held prior to his reassignment and be given 60 days to demonstrate his ability to perform the job. At the end of the trial period his performance shall again be evaluated. If that evaluation indicates inadequate performance, the Employer may reassign him or take any other appropriate action in accordance with the collective bargaining agreement and applicable laws and regulations. As one of its exceptions the Agency contends that the award is contrary to management's right under section 7106(a)(2)(A) to assign employees. The Authority agrees. In American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration Northeast Program Service Center, 9 FLRA 1025 (1982) (proposal 1), the Authority considered a proposal which would have prevented the agency from exercising certain management rights under section 7106(a) (to remove or reduce in grade employees under section 7106(a)(2)(A)) without first allowing the employee an opportunity to perform in a like-graded position. The Authority held that the proposal was inconsistent with management's rights under section 7106(a) since it would impose a condition which itself would interfere with the exercise of those rights by the agency. In this respect it is well established that an arbitrator's award likewise may not interfere with the exercise by an agency of its rights under section 7106(a). E.g., Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA No. 43 (1983). Thus, in terms of this case, by vacating management's assignment of the grievant from his security officer position to the senior specialist position and by improperly conditioning that assignment on a 60-day trial period in which the grievant has an opportunity to demonstrate his ability to perform, the award directly interferes with management's right to assign employees under section 7106(a)(2)(A). In addition, because the record before the Authority clearly indicates that at the time of the grievant's reassignment, a performance appraisal system had neither been established nor approved at the Activity under 5 U.S.C.Chapter 43, the provisions of 5 U.S.C. 4302(b)(6) were inapplicable. See Wells v. Harris, 1 MSPB 199 (1979). Therefore, the Arbitrator's award is deficient as contrary to section 7106(a) of the Statute and is not otherwise authorized by 5 U.S.C. 4302(b)(6). Accordingly, the award is set aside. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY (ORDER DENYING MOTION FOR RECONSIDERATION OF Case No. O-AR-659) U.S. ARMY AVIATION CENTER, FORT RUCKER, ALABAMA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1815 Union Case No. O-AR-659 ORDER DENYING MOTION FOR RECONSIDERATION This matter is before the Authority on a motion filed by the Union seeking reconsideration of the Authority's decision of March 20, 1984, denying the Union's exceptions to the Arbitrator's award. In that decision, the Authority concluded that the Union failed to establish in its exceptions that the Arbitrator's award was deficient on any of the grounds set forth in section 7122(b) of the Federal Service Labor-Management Relations Statute. In its motion for reconsideration, the Union essentially reiterates the same arguments presented in its exceptions to the award. Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. Here, however, the Union has not established "extraordinary circumstances" within the meaning of section 2429.17. Rather, the arguments presented by the Union in support of its motion constitute nothing more than disagreement with the merits of the Authority's decision. Accordingly, the Union's motion for reconsideration is hereby denied. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY (ORDER DENYING MOTION FOR RECONSIDERATION OF Case No. O-PR-711) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 236 Union and GENERAL SERVICES ADMINISTRATION Agency Case No. O-AR-711 ORDER DENYING MOTION FOR RECONSIDERATION This matter is before the Authority on a motion filed by the Agency seeking reconsideration of the Authority's decision of April 6, 1984, denying the Agency's exceptions to the Arbitrator's award. In that decision, the Authority concluded that the Agency failed to establish in its exceptions that the Arbitrator's award was deficient on any of the grounds set forth in section 7122(b) of the Federal Service Labor-Management Relations Statute. In its motion for reconsideration, the Agency expresses its disagreement with the Authority's conclusion and essentially reiterates the same arguments presented in its exceptions to the award. Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. Here, however, the Agency has not established "extraordinary circumstances" within the meaning of section 2429.17. Rather, the arguments presented by the Agency in support of its motion merely constitute disagreement with the merits of the Authority's decision. Accordingly, the Agency's motion for reconsideration is hereby denied. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. DEPARTMENT OF JUSTICE, FEDERAL PRISON SYSTEM, FEDERAL CORRECTIONAL INSTITUTION Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2052 Union Case No. O-AR-560 DECISION This matter is before the Authority on an exception to the award of Arbitrator Bertram Gottlieb filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /2/ Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exception is denied. Issued, Washington, D.C., August 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Case No. O-AR-597; August 23, 1984. DEPARTMENT OF THE ARMY, HEADQUARTERS, FORT HUACHUCA, ARIZONA Activity and 4 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1662 Union Case No. O-AR-597 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Joseph F. Gentile filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD Activity and FEDERAL EMPLOYEES METAL TRADES COUNCIL Union Case No. O-AR-706 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Louis P. Pittocco filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION II Activity and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 183 Union Case No. O-AR-760 DECISION This matter is before the Authority on exceptions to the award of Arbitrator David M. Kaplan filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2724 Union Case No. O-AR-782 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Stephen E. McCloskey filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Case No. O-AR-786; August 23, 1984. DEPARTMENT OF THE NAVY, STRATEGIC WEAPONS FACILITY PACIFIC Facility and INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE WORKERS, LOCAL 282 Union Case No. O-AR-786 DECISION This matter is before the Authority on exceptions to the award of Arbitrator J. B. Gillingham filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY GENERAL SERVICES ADMINISTRATION Agency AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 236 Union Case No. O-AR-772 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Thomas Angelo 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. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NAVAL AIR STATION, CORPUS CHRISTI, TEXAS Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 797 Union Case No. O-AR-751 DECISION This matter is before the Authority on exceptions to the award of Arbitrator I. B. Helburn filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part , 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. CUSTOMS SERVICE Agency and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 161 Union Case No. O-AR-758 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Monroe Berkowitz 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. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY INTERNAL REVENUE SERVICE, National OFFICE, WASHINGTON, D.C. Agency and NATIONAL TREASURY EMPLOYEES UNION, NATIONAL OFFICE CHAPTER NO. 65 Union Case No. O-AR-778 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Clair V. Duff filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 759 Union Case No. O-AR-789 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Barbara Bridgewater filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 85 Union and VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS Activity Case No. O-AR-793 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Timothy J. Heinsz filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 Union and U.S. ARMY COMMUNICATIONS AND ELECTRONICS COMMAND Activity Case No. O-AR-798 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Herbert L. Haber filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY VETERANS ADMINISTRATION Agency and LOCAL 31, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. O-AR-799 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Susan T. Mackenzie filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FEDERAL EMPLOYEES METAL TRADES COUNCIL Union and MARE ISLAND NAVAL SHIPYARD Activity Case No. O-AR-809 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Armon Barsamian 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. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, SUITLAND, MARYLAND Agency and LOCAL 2782, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. O-AR-768 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Max B. Jones 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. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., August 30, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2724 Union and UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE Activity Case No. O-AR-290 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Mark Grossman 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. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., August 31, 1984. Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 U.S.C. 4302(b)(6) provides: (b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for-- . . . . (6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. /2/ The Union also filed a request for a general statement of policy or guidance. See 15 FLRA No. 120 (1984).