VA Medical Center Kerrville and AFGE Local 2281 (Authority decision, June 13, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards 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

An arbitrator gave a VA employee a choice of vacant positions for reassignment based on her preference and seniority. The Authority found that the award compelled management to assign an employee according to those criteria. It set aside the award as interfering with the statutory right to assign employees.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and assignment right under § 7106(a)(2)(A).
• Outcome: Reassignment award set aside.
• Key point: The arbitrator could not give the employee control over management's assignment decision.

Full text (FLRA public release)

[ v18 p416 ]

18:0416(57)AR

The decision of the Authority follows:

18 FLRA No. 57

VETERANS ADMINISTRATION MEDICAL
CENTER, KERRVILLE, TEXAS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2281
Union

Case No. 0-AR-482

DECISION

This matter is before the Authority on an exception to the award of Arbitrator I. B. Helburn 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.

The dispute in this matter concerns the grievant's claim that she was reassigned improperly from a retail cash register position to a dishwashing machine position. The Arbitrator found that the decision to reassign the grievant from the cash register position was justified because of the grievant's unacceptable performance in that job. However, the Arbitrator further found that since the dish machine position had been filled in the past by the most junior employees in terms of seniority, reassignment of the grievant to that job rather than to an intermediate position more consistent with her seniority was an unfair departure from past practice and violative of the parties' collective bargaining agreement. As a remedy, the Arbitrator directed that:

The grievant is to be given her choice of positions in the Veterans' Canteen Service, with the exception of the retail cash register position, provided that she is qualified and further provided that in exercising her choice, the grievant will not displace another employee with more seniority than herself.

In its exception, the Agency contends, among other things, that the award is deficient because it is contrary to management's right to assign employees under 7106(a)(2)(A) of the Statute. The Authority agrees.

In American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 8 FLRA 425 (1982), the Authority found that proposals, which would have permitted employees who were to be reassigned to choose the vacant position to which they would be reassigned and which would have required reassignments based upon employee preference and seniority, directly interfered with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Further in that regard, 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) of the Statute. Veterans Administration, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA No. 43 (1982).

Thus, in terms of this case, by directing that the grievant be given a choice of reassignment and in effect requiring that if she exercised such choice that she be reassigned based upon her preference and her seniority, the Arbitrator's award directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

Accordingly, the award is set aside. Issued, Washington, D.C., June 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY