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53 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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U.S. DEPARTMENT OF THE AIR FORCE

WARNER ROBINS AIR LOGISTICS CENTER

WARNER ROBINS AIR FORCE BASE, GEORGIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 987

(Union)

0-AR-2946

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DECISION

February 25, 1998

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Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Ronald A. Leahy filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.

The Arbitrator sustained a grievance claiming that the Agency violated the parties' collective bargaining agreement by moving the grievant without first bargaining over the impact and implementation of the move with the Union. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Background and Arbitrator's Award

In an effort to settle an EEO complaint and resolve a "volatile" "personal situation involving the [g]rievant, her ex-husband . . . and another employee[,]" the Agency moved the grievant from one machine shop to another. Award at 2. The move did not affect the grievant's position classification, pay grade, or pay level. However, the move did change "her work location" and "placed her under a different first level supervisor." Id.

The Union filed a grievance challenging the move. The parties were unable to resolve the grievance, and the matter was submitted to arbitration. In the absence of a stipulation by the parties, the Arbitrator framed the issue as follows:

Did Management of the Air Logistics Command act arbitrarily or capriciously, or in violation of the Parties' Master Labor Agreement (MLA), when it moved the Grievant . . . ? If "Yes," what shall the remedy be?

Id. at 3.

Before the Arbitrator, the Union agreed that the Agency had the right under both Article 3, Section 3.02 of the parties' agreement and section 7106(a) of the Statute to move the grievant.⁽¹⁾ However, the Union argued that the move violated Article 21 of the parties' agreement and past practice with respect to loans and reassignments.⁽²⁾ The Union also argued that "the unilateral move of the [g]rievant" violated "its rights under Section 3.03 (b) and (c) of the" parties' agreement.⁽³⁾ Id. at 5. In this connection, the Union asserted that this section permits the Union "to bargain procedures and appropriate arrangements for [the grievant] and any other employees adversely affected by the move." Id.

The Arbitrator determined that Article 21 of the parties' agreement did not address the grievant's move because the move was not a loan, re-assignment, detail, or transfer. Based on this finding, the Arbitrator also determined that "the existence of . . . a binding past practice [was] irrelevant[.]" Id. at 7.

The Arbitrator also concluded, however, that the foregoing determinations did not resolve the grievance. According to the Arbitrator, the Agency was first required, under Article 3, Section 3.03 of the parties' agreement, to "negotiate on the procedures for implementing its decision and on appropriate arrangements for any employees, including the [g]rievant." Id. at 8. Based on the Arbitrator's finding that the Agency had "not fulfilled" this obligation, the Arbitrator sustained the grievance. Id. at 9. As a remedy, the Arbitrator ordered that the grievant be restored to her original position. The Arbitrator stated that "if [the Agency] reasserts its right to reinstate the move . . . it shall comply with . . . Article 3, Section 3.03" of the collective bargaining agreement. Id. at 10.

III. Positions of the Parties

A. Agency

The Agency claims that the Arbitrator's award violates its right to assign employees and work under section 7106(a) of the Statute. In this regard, the Agency asserts that the "plain language of [section] 7106[] provides that 'nothing' in the Statute shall 'affect the authority' of an agency to exercise the rights enumerated in that section." Exception at 2. The Agency argues that "[a]n arbitration award may not enforce a collective bargaining agreement as to improperly deny an agency the authority to exercise its rights" under the Statute. Id.

B. Union

According to the Union, the award complies with the parties' collective bargaining agreement and the Statute. The Union states that the Arbitrator's remedy is appropriate because it is consistent with Authority precedent. Opposition at 2 (citing National Treasury Employees Union and Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 566 (1993)).

IV. Analysis and Conclusions

Where an agency's exception involves the award's consistency with law, we review the questions of law raised by the agency's exception and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The Authority's framework for resolving exceptions to arbitration awards alleging that the award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute.⁽⁴⁾ Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. BEP, 53 FLRA at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

In this case, the Agency challenges the Arbitrator's remedy as contrary to section 7106(a) of the Statute. The Arbitrator directed the Agency to return the grievant to her original position to remedy the Agency's violation of Article 3, Section 3.03 of the parties' collective bargaining agreement. That provision, as interpreted by the Arbitrator, requires negotiations over procedures and appropriate arrangements.

There is no contention that Article 3, Section 3.03 is unenforceable. Moreover, on its face, the provision appears to incorporate bargaining requirements set forth in section 7106(b)(2) and (3) of the Statute.⁽⁵⁾

In addition, the plain wording of Article 3, Section 3.03 indicates that it was intended to mitigate the adverse effects of an exercise of management's rights under the collective bargaining agreement, which parallels the Statute. As applied in this case, the Arbitrator specifically found that "the move of the [g]rievant clearly had adverse consequences for her." Award at 8 (emphasis added). Therefore, with regard to the first part of the Customs Service test, Article 3, Section 3.03 constitutes an arrangement under section 7106(b)(3) of the Statute. With respect to the second part of the Customs Service test, an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 600 (1991) (citing Customs Service, 37 FLRA at 314). In this case, the Arbitrator's award does not prevent the Agency from moving the grievant; the Arbitrator specifically held that the Agency "had the right . . . to move the [g]rievant . . . [b]ut . . . [was] also obliged to conform" to Article 3, Section 3.03 of the parties' agreement "by fulfilling its obligation to the Union to negotiate" on procedures and appropriate arrangements. Award at 8. Therefore, Article 3, Section 3.03, as enforced by the Arbitrator, does not abrogate management's right to assign work under section 7106(a) of the Statute. See Customs Service, 37 FLRA at 314.

Consistent with the foregoing, we conclude, based on both the plain wording of the provision and through application of Customs Service, that Article 3, Section 3.03 was negotiated pursuant to section 7106(b) of the Statute. Accordingly, the award satisfies prong I of the BEP analysis.

As for Prong II of BEP, if the Agency had complied with Article 3, Section 3.03 of the collective bargaining agreement, the Agency would have negotiated over any procedures or appropriate arrangements before it moved the grievant. Because the Arbitrator's award merely returns the grievant to her original position and requires the Agency to comply with Article 3, Section 3.03 before moving her, the award is a reconstruction of what management would have done had it not violated the parties' collective bargaining agreement. As such, the award satisfies prong II of the BEP analysis.

Accordingly, we conclude that the award is not contrary to management's rights under section 7106(a) of the Statute and, therefore, is not deficient under section 7122(a) of the Statute.

V. Decision

The exception is denied.

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

1. Article 3, Section 3.02, entitled "Retained Management Rights," states:

Subject to Section 3.03 of this Article, management officials of the Employer retain the right, in accordance with applicable . . . .laws:

(1) to hire, assign, direct[,] layoff, and retain employees in the agency . . .

(2) to assign work, . . .

Award at 4. As relevant here, 5 U.S.C. § 7106(a) provides:

Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency . . .

(2) in accordance with applicable laws-

(A) to hire, assign, direct, layoff, and retain employees in the agency . . .

(B) to assign work . . .

2. As relevant here, Article 21 of the parties' agreement, entitled "Loans," states:

A loan is the assignment of an employee to another supervisor or organization to meet temporary or limited emergency work situations where the position has the same grade, series, and basic duties as his/her regularly assigned position.

Award at 5.

3. Article 3, Section 3.03, entitled "Additional Obligations and Rights of Management," provides, as relevant here, that the Agency and the Union "may negotiate":

(b) procedures which management officials of the agency will observe in exercising any authority under this Article, or

(c) appropriate arrangements for employees adversely affected by the exercise of any authority under this article by such management officials.

Award at 4.

4. An agency's authority to exercise the rights enumerated in section 7106(a) of the Statute is expressly made "subject to" section 7106(b) of the Statute, which states that "[n]othing in this section shall preclude any agency and any labor organization from negotiating" over matters set forth in section 7106(b). See, e.g., BEP, 53 FLRA at 152. To determine whether an award enforces a provision of the collective bargaining agreement negotiated pursuant to section 7106(b)(3), the Authority applies the framework explained in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service). Under that framework, the Authority determines whether the collective bargaining provision enforced by the arbitrator: (1) constitutes an arrangement under section 7106(b)(3) of the Statute, and (2) does not abrogate the exercise of a management right. See BEP, 53 FLRA at 153 n.8; see also U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 273-74 (1995).

5. We note that, unlike the Statute, the provision states that the parties "may" negotiate over procedures and appropriate arrangements. However, there is no contention that this difference in wording is relevant. Indeed, the Agency makes no reference at all to the provision in its exceptions. The Union asserts, in this regard, that the basis of the award is the Arbitrator's finding that "management violated the union's right to impact and implementation bargaining--a statutory right which has been incorporated into the labor contract." Opposition at 2.

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