Southwestern Power Administration and IBEW Local 1002 (Authority decision, July 9, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator found that a general foreman performed switching duties contrary to the parties’ agreement and ordered the agency to stop assigning bargaining unit work to foremen except in specified situations. The Authority held that management could not relinquish its statutory right to assign work through the agreement. It removed the restriction on assignments from the arbitration award.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7122(a).
• Outcome: Award modified by striking its work assignment restriction.
• Key point: A negotiated restriction cannot prevent management from exercising its statutory right to assign work.

Full text (FLRA public release)

[ v22 p475 ]

22:0475(48)AR

The decision of the Authority follows:

22 FLRA No. 48

SOUTHWESTERN POWER ADMINISTRATION
Activity

and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1002
Union

Case No. 0-AR-1062

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator John P. Owen filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed and submitted to arbitration claiming that the performance by a general foreman of switching duties, which is work regularly performed by bargaining-unit employees, violated Article XXIII, Section 23.1 of the parties' collective bargaining agreement. Article XXIII, Section 23.1 pertinently provided that a general foreman shall not normally perform bargaining-unit work except in situations such as checking the work of others, training of employees, and when life or property is in danger and there are no other qualified persons available to do the work. The Arbitrator determined that the performance by the general foreman of the switching duties in dispute was clearly prohibited by the parties' agreement because none of the exceptions provided applied. Consequently, he ruled that the Activity had violated the agreement. In so ruling he rejected the Activity's argument that such a determination was inconsistent with management's right to assign work in accordance with section 7106(a)(2)(B) of the Statute. He concluded in this respect that although the Statute reserves to management the right to assign work, "it does not prevent an Agency from voluntarily relinquishing that right under negotiated conditions." Accordingly, as his award, the Arbitrator sustained the grievance and directed that the Activity refrain from assigning bargaining-unit work to general foremen and nonbargaining-unit personnel except as provided in Article XXIII, Section 23.1 of the collective bargaining agreement.

III. EXCEPTION

In its exception the Activity contends that the award is deficient because the Arbitrator was not authorized to order the Activity to refrain from assigning bargaining-unit work to general foremen and other nonbargaining-unit personnel.

IV. ANALYSIS AND CONCLUSIONS

Contrary to the conclusion of the Arbitrator, the Authority has repeatedly indicated that management rights under section 7106(a) cannot be waived or relinquished through collective bargaining. See Professional Air Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763, 768 (1981). The Authority has consistently emphasized 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. American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom., AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926 (1983). Thus, the Authority has specifically held that no arbitration award may interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under that section. 172d Infantry Brigade, Fort Richardson, Alaska and American Federation of Government Employees, Locals 1712, 1834 and 1949, 19 FLRA No. 71 (1985). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. In American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982), the Authority considered a proposal (proposal 1) which provided, in part, that management could not assign duties normally performed by employees in the bargaining unit to supervisors except in specific circumstances. The Authority found that this disputed portion of the proposal conflicted with management's right to assign work because it would improperly limit management's discretion to determine which personnel will receive particular work assignments.

In this case the Arbitrator directed that the Activity refrain from assigning bargaining-unit work to general foremen and other nonbargaining-unit personnel on the basis of his determination that the collective bargaining agreement prohibited such assignments. The Authority concludes that the Arbitrator's award is therefore deficient as contrary to section 7106(a)(2)(B) by interpreting and enforcing the collective bargaining agreement so as to improperly interfere with management's discretion to determine which personnel will receive particular work assignments. See 172d Infantry Brigade; Department of Transportation, Federal Railroad Administration, Alaska Railroad and United Transportation Union, 16 FLRA 582 (1984).

V. DECISION

For these reasons, the award is modified by striking the direction to the Activity pertaining to the assignment of bargaining-unit work.

Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY