Marine Corps Logistics Support Base, Pacific, Barstow, California (Activity) and American Federation of Government Employees, AFL-CIO, Local 1482 (Union) (Authority decision, June 11, 1980)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A Marine Corps union grieved a work assignment under the parties’ agreement. The arbitrator declined to hear the grievance, reasoning that management’s statutory assignment right made it nonarbitrable. The Authority held that management rights did not prevent an arbitrator from hearing a claimed agreement violation. It set aside the nonarbitrability award, leaving the grievance merits unresolved.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a), 5 U.S.C. § 7106.
• Outcome: Nonarbitrability award set aside; grievance merits remain open.
• Key point: Management rights did not by themselves bar arbitration of the contract claim.

Full text (FLRA public release)

[ v03 p397 ]

03:0397(61)AR

The decision of the Authority follows:

3 FLRA No. 61

MARINE CORPS LOGISTICS SUPPORT
BASE, PACIFIC, BARSTOW,
CALIFORNIA
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1482
Union

Case No. 0-AR-23

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
AWARD OF ARBITRATOR SARA ADLER FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

FROM THE RECORD BEFORE THE AUTHORITY, IT APPEARS THAT THE UNION FILED
A GRIEVANCE OVER A PARTICULAR WORK ASSIGNMENT MADE BY THE ACTIVITY. THE
GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION. THE ARBITRATOR
STATED THAT THE PARTIES WERE NOT IN AGREEMENT ON THE FRAMING OF A
SPECIFIC ISSUE. THE UNION'S PROPOSED ISSUE, AS STATED BY THE
ARBITRATOR, WAS:

DID MANAGEMENT VIOLATE ARTICLE 33, SECTION 3 OF THE NEGOTIATED
AGREEMENT BY MISASSIGNING A SUPERVISOR TO PERFORM JOURNEYMAN DUTIES?

DID MANAGEMENT VIOLATE ARTICLE 7, SECTION 1 OF THE NEGOTIATED
AGREEMENT?

THE ACTIVITY'S PROPOSED ISSUE, AS STATED BY THE ARBITRATOR, WAS:

IS THE WORK ASSIGNMENT WHICH GAVE RISE TO THE GRIEVANCE . . . A
GRIEVABLE MATTER. IF SO, DID MANAGEMENT VIOLATE ARTICLE 7, SECTION 1 OF
THE ARTICLE 7, SECTION 1 OF THE AGREEMENT . . . ?

THE PARTIES AGREED TO ALLOW THE ARBITRATOR TO FIRST RESOLVE THE ISSUE
OF ARBITRABILITY OF WHETHER "THE WORK ASSIGNMENT WHICH GAVE RISE TO THE
GRIEVANCE . . . (WAS) A GRIEVABLE MATTER." THE ARBITRATOR'S AWARD WAS AS
FOLLOWS:

THE WORK ASSIGNMENT WHICH GAVE RISE TO THE GRIEVANCE . . . IS NOT
ARBITRABLE AND THE ARBITRATOR MUST DECLINE TO PROCEED.

IN REACHING THIS AWARD, THE ARBITRATOR DETERMINED THAT UNDER SECTION
7106 OF THE STATUTE, /1/ MANAGEMENT HAS THE RIGHT TO ASSIGN PERSONNEL,
INCLUDING SUPERVISORS, AS IT SEES FIT AND THAT RIGHT TO NONNEGOTIABLE
EXCEPT AS THE AGENCY CHOOSES UNDER THE CIVIL SERVICE REFORM ACT OF 1978
AND THE EMPLOYER HAS NOT HERE CHOSEN.

ON THIS BASIS THE ARBITRATOR CONCLUDED THAT "THE ASSIGNMENT OF
PERSONNEL IS NOT SUBJECT TO GRIEVANCE AND ARBITRATION."

THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
PURSUANT TO THE RULES APPROPRIATE SET FORTH IN 5 C.F.R. 2411(1978),
WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
OF THE STATUTE (5 U.S.C. 7122(A) AND AS AMENDED BY SECTION 2400.5 OF THE
TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS
AUTHORITY, 44 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO THIS CASE.
PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION 2411.32 OF THE
AMENDED RULES OF PROCEDURE, THE AUTHORITY ACCEPTED THE UNION'S PETITION
FOR REVIEW ON THE ISSUE OF WHETHER THE AWARD VIOLATES SECTION 7106 OF
THE STATUTE. BOTH PARTIES FILED POST-ACCEPTANCE BRIEFS.

AS PREVIOUSLY NOTED, THE ARBITRATOR'S AWARD WAS CONFINED TO THE ISSUE
OF WHETHER THE GRIEVANCE WAS ARBITRABLE. FINDING THAT THE GRIEVANCE WAS
NOT SUBJECT TO ARBITRATION, SHE DECLINED TO PROCEED AND THEREFORE DID
NOT RULE ON THE MERITS OF THE GRIEVANCE. THE ARBITRATOR BASED HER AWARD
ON SECTION 7106 OF THE STATUTE. SHE FOUND THAT THE GRIEVANCE WAS NOT
ARBITRABLE BECAUSE SECTION 7106 RESERVES TO MANAGEMENT THE RIGHT TO
ASSIGN WORK. THE QUESTION PRESENTED TO THE AUTHORITY IS WHETHER THIS
AWARD, FINDING ON THE BASIS OF SECTION 7106 THAT THIS GRIEVANCE WAS NOT
ARBITRABLE AND CONSEQUENTLY THAT THERE WAS NO AUTHORITY TO PROCEED TO
RESOLVE THE GRIEVANCE ON THE MERITS, IS DEFICIENT UNDER THE STATUTES.

FOR THE REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE
ARBITRATOR'S AWARD IS DEFICIENT. THE AUTHORITY NOTES THAT THE
ARBITRABILITY QUESTION SUBMITTED TO THE ARBITRATOR CONCERNED WHETHER THE
DISPUTE IN THIS CASE, WHICH INVOLVED A WORK ASSIGNMENT AND ALLEGATIONS
BY THE UNION THAT SUCH ASSIGNMENT WAS MADE IN VIOLATION OF SPECIFIC
PROVISIONS OF THE PARTIES' NEGOTIATED AGREEMENT, COULD BE PROPERLY
SUBJECT TO ARBITRATION. SECTION 7106 OF THE STATUTE, ON WHICH THE
ARBITRATOR RELIED IN FINDING THE DISPUTE NONARBITRABLE, SPECIFIES AND
ENUMERATES RIGHTS WHICH ARE RESERVED TO MANAGEMENT. HOWEVER, NOTHING IN
SECTION 7106 PRECLUDES AN ARBITRATOR FROM REACHING THE MERITS OF A
GRIEVANCE IN CASES WHERE, AS IN THIS CASE, THE UNION HAS ALLEGED A
VIOLATION OF CERTAIN SPECIFIED PROVISIONS OF A COLLECTIVE BARGAINING
AGREEMENT. THUS, WHILE AN ARBITRATOR MAY FIND, ON THE MERITS OF THE
GRIEVANCE, THAT THERE HAS BEEN NO VIOLATION OF THE SPECIFIED PROVISIONS
OF THE AGREEMENT BECAUSE THE ACTIONS TAKEN BY MANAGEMENT WHICH GAVE RISE
TO THE GRIEVANCE WERE WITHIN THE AMBIT OF THE RIGHTS RESERVED UNDER
SECTION 7106, OR THAT, WHILE THERE HAS BEEN A VIOLATION, THE SCOPE AND
NATURE OF POSSIBLE REMEDIES AVAILABLE TO THE ARBITRATOR IS LIMITED BY
SECTION 7106, NOTHING IN SECTION 7106 IN AND OF ITSELF PREVENTS AN
ARBITRATOR FROM DECIDING IF THERE HAS BEEN A VIOLATION OF A PARTICULAR
CONTRACT PROVISION.

ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
2411.37(A) OF THE AMENDED RULES, THE ARBITRATOR'S AWARD FINDING THE
GRIEVANCE NONARBITRABLE IS SET ASIDE. /2/

ISSUED, WASHINGTON, D.C., JUNE 11, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106 PERTINENTLY PROVIDES:

SEC. 7106. MANAGEMENT RIGHTS

(A) 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--

. . . .

(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)

/2/ IN ARRIVING AT THIS DECISION, THE AUTHORITY IN NO MANNER
ADDRESSES THE IMPACT OR APPLICATION OF SECTION 7106 TO THE MERITS OF THE
GRIEVANCE. THAT QUESTION WOULD BE PROPERLY FOR THE ARBITRATOR TO DECIDE
SHOULD THE PARTIES CHOOSE TO RESUBMIT THE GRIEVANCE TO ARBITRATION
SUBJECT TO ANY SUBSEQUENT APPEAL THAT MIGHT BE EXERCISED PURSUANT TO 5
U.S.C. 7122(A).