National Aeronautics and Space Administration, Lewis Research Center and International Federation of Professional and Technical Engineers, Local 28 (Authority decision, May 9, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award. The arbitration exclusion in 5 U.S.C. § 7123(a)(1) generally limits judicial review of Authority orders involving arbitral awards.

Plain-English summary

An employee at NASA's Lewis Research Center sought review of her position classification. An arbitrator found that management retaliated by taking away her duties and ordered their temporary restoration for a new classification desk audit. The Authority rejected the agency's claim that this remedy improperly limited its right to assign work. It also found that the award did not determine employee grades or order a promotion or classification change. The agency's exceptions were denied, leaving the remedy in place.

Decision snapshot

• Authority: Prohibited personnel practice under 5 U.S.C. § 2302(b)(9) and management rights under 5 U.S.C. § 7106.
• Outcome: Agency exceptions denied; the arbitration remedy stands.
• Key point: Restoring duties for a new desk audit remedied the arbitrator's finding of retaliation without changing the employee's classification.

Full text (FLRA public release)

[ v17 p966 ]

17:0966(130)AR

The decision of the Authority follows:

17 FLRA No. 130

NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION, LEWIS
RESEARCH CENTER
Activity

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 28, LESA (AFL-CIO)
Union

Case No. 0-AR-636

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Roland Strasshofer, Jr. 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.

A grievance was filed and submitted to arbitration claiming that management violated law and the parties' collective bargaining agreement by changing the duties and responsibilities of the grievant. The Arbitrator determined that the Activity's removal of functions, duties, and responsibilities from the grievant was a reprisal for the request of the grievant that the classification of her position be reviewed. The Arbitrator ruled that these actions constituted a prohibited personnel practice under 5 U.S.C. 2302(b)(9) which prohibits the taking of a personnel action against an employee as a reprisal for the exercise of any appeal right granted by law, rule, or regulation. Accordingly, as his award to remedy the prohibited personnel practice, the Arbitrator ordered that the duties and responsibilities which were removed from the grievant during the period between September 8, 1980, and October 15, 1981, shall be returned to her; that a new desk audit will then be conducted; and that the grievant's appeal rights with respect to the new audit are preserved as guaranteed by the parties' collective bargaining agreement.

In its first exception the Activity contends that the award is contrary to section 7106(a) of the Statute. Specifically, the Activity essentially argues that the ordered return of particular duties and responsibilities to the grievant conflicts with management's right under section 7106(a)(2)(B) to assign work and to determine the personnel by which agency operations shall be conducted.

The Authority concludes that the Activity has failed to establish in what manner the award is contrary to section 7106(a)(2)(B) of the Statute. As has been noted, the Arbitrator found that the duties were removed from the grievant as a reprisal for her request of a review of the classification of her position, which reprisal constituted a prohibited personnel practice under section 2302(b)(9). As a remedy, the Arbitrator has merely required for the purposes of a new classification desk audit the reassignment of that work to the grievant. In this regard the Authority has previously indicated that management rights must be exercised in accordance with applicable laws, and the Authority therefore specifically held that a proposal which would prohibit discrimination which constituted a prohibited personnel practice under section 2302(b)(10) was not inconsistent with the proper exercise of those rights. American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (proposal 1). Moreover, the Authority further held that prohibited personnel practices affect conditions of employment and that a prohibition against such practices may be enforced through the negotiated grievance procedure unless such matters are excluded by the parties. Id. In terms of whether the award constitutes a proper enforcement, the Authority indicated in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984) (provision 3) that a preclusion against the reassignment of work from employees and positions involved in a classification appeal until the completion of the appeal if the reassignment was intended to negate the classification appeal did not interfere with management's right to assign work under section 7106(a)(2)(B). Thus, the Authority finds that the Activity's exception provides no basis for finding the award deficient.

In its second exception the Activity essentially contends that the award is contrary to section 7106(b)(1) of the Statute by interfering with management's right under that provision to determine the grade of employees and positions assigned to an organizational subdivision, work project, or tour of duty. Assuming that the parties' collective bargaining agreement contains no applicable negotiated provision constituting the Activity's election under section 7106(b)(1) to negotiate, the Authority concludes that the Activity has failed to establish in its exception that the award concerns a matter which is negotiable only at the election of the Activity under Section 7106(b)(1). The Agency has in no manner established that the award is directly or integrally related to the grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty so as to be determinative of such grades. See, e.g., National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927, 928-30 (1979). Consequently, the second exception provides no basis for finding the award deficient.

In its third exception the Activity contends that the award is contrary to section 7121(c)(5) of the Statute which excludes from grievance and arbitration most grievances concerning the classification of any position. In support the Activity argues that to the extent the Arbitrator by indirection has ordered a promotion the exclusionary provisions of section 7121(c)(5) apply. The Authority however concludes that the Activity has failed to establish that the award is contrary to section 7121(c)(5). Contrary to the assertion of the Activity, the Authority finds that the award in no manner, by indirection or otherwise, orders the promotion of the grievant. Moreover, in resolving the grievance the Arbitrator did not order any change in the classification, grade, or pay system of the grievant's position. See U.S. Department of Labor and American Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639 (1983). Consequently, no basis is provided for finding the award deficient as contrary to section 7121(c)(5).

Accordingly, the Activity's exceptions are denied. Issued, Washington, D.C., May 9, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY