NAGE Local R1-25 and Brockton/West Roxbury VA Medical Center (Authority decision, March 20, 1986)

Final FLRA decision. This final Authority order concerns 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 resolve an unfair-labor-practice claim.

Plain-English summary

An arbitrator found that the Brockton/West Roxbury VA Medical Center had a practice of not assigning employees to work midweek holidays and ordered it to stop those assignments. The VA argued that the award interfered with its statutory right to assign work. The Authority agreed: management's right includes deciding when assigned work will be performed, and a past practice cannot prevent the agency from exercising that right. It set aside the arbitration award.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Arbitration award set aside.
• Key point: A past practice cannot bar an agency from assigning work on midweek holidays.

Full text (FLRA public release)

[ v21 p83 ]

21:0083(16)AR

The decision of the Authority follows:

21 FLRA No. 16

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-25
Union

and

BROCKTON/WEST ROXBURY
V.A. MEDICAL CENTER
Activity

Case No. 0-AR-975

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Francis T. O'Brien 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 ARBITRATION AWARD

The Parties submitted to arbitration the issue of whether the Activity violated the parties' collective bargaining agreement when it required certain employees to work a midweek holiday. Before the Arbitrator the Activity argued that it had properly acted in accordance with its right to assign work. However, the Arbitrator stated that management's right to assign work is not absolute and may be abridged by provisions of the agreement and by post practices. In this respect, he determined that under the parties' collective bargaining agreement, there was an established practice of not requiring employees to world midweek holidays. Accordingly, the Arbitrator sustained the grievance and directed the employer to cease and desist from requiring employees to work on midweek holidays.

III. EXCEPTION

In its exception the Agency contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute.

IV. ANALYSIS AND CONCLUSIONS

The Authority has repeatedly recognized that the plain language of section 7106(a) Provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., 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.23 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926 (1983). Therefore, the Authority has consistently 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. E.g., U.S. Department of Justice, Immigration and Naturalization Service, Western Regional Office, San Pedro, California and American Federation of Government Employees, Immigration and Naturalization Service Council, Western Region, Local 2805, 18 FLRA No. 20 (1985). In addition, the Authority has clearly indicated that no past practice may be established regarding the rights enumerated in section 7106(a) that would bind management to the Particular manner in which it had exercised such rights in the Past so as to preclude management from acting otherwise in the exercise of those rights. See, e.g., Veterans Administration Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281, 18 FLRA No. 57 (1985); Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543, 545 (1982). Section 7106(a) (2) (B) of the Statute reserves to management officials the authority to assign work. Encompassed within this right is the right to determine without interference when work which has been assigned will be performed. E.g., National Federation of Federal Employees Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983); New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). In terms of this case, as has been noted, the Arbitrator determined that under the Parties collective bargaining agreement, there was an established practice of not requiring employees to work midweek holidays and that such practice Precluded management from acting otherwise with respect to the assignment of work. Thus, the Authority finds that by effectively prohibiting the assignment of work on midweek holidays, the award has enforced the Parties' agreement and practices so as to improperly deny the Agency its right under section 7106(a) (2) (B) to determine when work which has been assigned will be performed. Consequently, the Authority concludes that the award is deficient as contrary to section 7106(a) (2) (B) of the Statute.

V. DECISION

Accordingly, for the above reasons, the Arbitrator's award is set aside.

Issued, Washington, D.C., March 20, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY