Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028 (Authority decision, February 4, 1987)

Final FLRA decision. The Authority sets aside an arbitration award ordering a nurse's return to a night shift and related pay. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A nurse at the Pittsburgh VA medical center was moved from a night shift to rotating shifts after a satisfactory performance report that also identified a need for closer supervision. An arbitrator ordered her restored to the night shift and awarded any lost shift differential, relying on the labor agreement's night tour provision. The Authority found that the move changed her position and duties as well as her shift. Because the award would reverse management's assignment of her to a different position, the Authority set it aside.

Decision snapshot

• Authority: Management's right to assign employees under 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Arbitration award set aside.
• Key point: The award changed a position assignment, beyond enforcing a provision about shift scheduling.

Full text (FLRA public release)

[ v25 p523 ]

25:0523(39)CA

The decision of the Authority follows:

25 FLRA No. 39

VETERANS ADMINISTRATION
MEDICAL CENTER, PITTSBURGH,
PENNSYLVANIA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2028, AFL-CIO
Union

Case No. 0-AR-1183

DECISION

I. STATEMENT OF THE CASE

This case is before the Authority on exceptions to the award of Arbitrator Henry Shore 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.

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed and submitted to arbitration in this case disputing the reassignment of the grievant, a registered nurse, from a night tour of duty (midnight to 8:00 a.m.). In December 1985 the grievant received her annual proficiency report in which she was rated "satisfactory." In the narrative comment to the report quoted by the Arbitrator in his award, the grievant was informed that she had not demonstrated the ability to function effectively as the charge nurse on an off tour of duty and that she was being reassigned to rotating tours of duty in order to receive additional guidance, support, and supervision of the head nurse. The Arbitrator determined that this reassignment of the grievant violated Article XI, Section VIII of the parties' collective bargaining agreement which provides that continuation on an indefinite night tour of duty will depend upon satisfactory performance. He concluded that under this provision the grievant was entitled to have remained on the night tour of duty as a result of her "satisfactory" rating on her annual proficiency report. Accordingly, as his award, the Arbitrator directed the Activity to restore the grievant to her former midnight to 8:00 a.m. shift and to make her whole for any loss of shift differential pay which she may have suffered as a result of her shift reassignment.

III. EXCEPTIONS

In its exceptions the Agency primarily contends that the award is contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. In essence the Agency argues that the Arbitrator erred because when the grievant was reassigned, she was assigned to different duties and a different position. She was no longer in a position of charge nurse. Instead, she was assigned to a different position, different duties, and a different shift where she would have a less independent role and be subject to greater and personal supervision by the head nurse. Thus, the Agency maintains that the Arbitrator erroneously applied a provision of the parties' agreement pertaining solely to shift assignments and tours of duty and improperly enforced that provision to prevent management's assignment of the grievant to a particular position.

IV. ANALYSIS AND CONCLUSIONS

We conclude that the award is contrary to management's right to assign employees in accordance with section 7106(a)(2)(A) of the Statute. We find that the Agency has established that the reassignment of the grievant was not only to a different shift or tour of duty, but also to a different position with different duties. Furthermore, it is clear that the award interferes with the Activity's exercise of its right to assign employees by rescinding management's assignment of the grievant to a position and shift where she would be supervised by the head nurse and by directing that she be reassigned to the midnight shift where she would not be in a position personally supervised by the head nurse. See Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA No. 96 (1986); Department of Health and Human Services, Social Security Administration, Charlotte, North Carolina District and American Federation of Government Employees, Local 3509, AFL-CIO, 17 FLRA 103 (1985). In contrast, we note that if there were such a position on the midnight shift personally supervised by the head nurse, the Arbitrator's award would have simply constituted an enforcement of the provisions of the parties' agreement pertaining to shift assignments and tours of duty. See, for example, National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984) (provision 4). However, in this case, the Arbitrator's remedy effectively rescinded the assignment of the grievant to a different position and different duties and is therefore deficient as contrary to section 7106(a)(2)(A) of the Statute. See Naval Undersea Warfare Engineering Station, slip op. at 3-4.

DECISION

The Arbitrator's award is set aside. /*/

Issued, Washington, D.C., February 4, 1987.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) In view of this decision, it is not necessary that we address the Agency's other exceptions.