American Federation of Government Employees, Local 1712 (Union) and United States Army, 172nd Infantry Brigade (Alaska) (Activity) (Authority decision, August 27, 1981)

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

An Alaska Army activity changed first line supervisors’ job descriptions so a general foreman, rather than those supervisors, selected applicants for certain vacancies. An arbitrator found the change within management’s right to assign work and denied the union’s grievance. The Authority agreed that the union had not shown the award contrary to the Statute and sustained it.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance award sustained.
• Key point: The contract could not be enforced to prevent management from assigning supervisory work.

Full text (FLRA public release)

[ v06 p466 ]

06:0466(85)AR

The decision of the Authority follows:

6 FLRA No. 85

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1712
Union

and

UNITED STATES ARMY,
172ND INFANTRY BRIGADE (ALASKA)
Activity

Case No. O-AR-104

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR PAUL D. JACKSON FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)) (THE STATUTE).

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
THE ACTIVITY CHANGED THE POSITION DESCRIPTIONS OF ITS FIRST-LINE
SUPERVISORS, REMOVING THEIR AUTHORITY TO MAKE SELECTIONS FOR CERTAIN
VACANCIES AND GIVING THOSE DUTIES TO THE GENERAL FOREMAN. THE UNION
GRIEVED THIS CHANGE, CONTENDING THAT IT VIOLATED THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT AND AN ACTIVITY REGULATION INCORPORATED THEREIN
WHICH STATES, IN PERTINENT PART, THAT "(T)HE SELECTING SUPERVISOR
(NORMALLY THE IMMEDIATE SUPERVISOR OF THE JOB BEING FILLED) WILL
INTERVIEW ALL EMPLOYEE APPLICANTS REFERRED. . . . " THE MATTER WAS
ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR DENIED THE GRIEVANCE, FINDING THAT THE RIGHT OF THE
ACTIVITY TO MAKE THE CHANGES IT MADE TO ITS SUPERVISORS' JOB
DESCRIPTIONS AND WORK ASSIGNMENTS WAS "AS STATUTORILY PROTECTED
MANAGERIAL RIGHT" UNDER SECTION 7106(A) OF THE STATUTE. IN SO FINDING,
THE ARBITRATOR REJECTED THE UNION'S CONTENTIONS THAT THE CHANGE INVOLVED
AN IMPERMISSIBLE "UNILATERAL ATTACK" ON PROVISIONS WHICH WERE PROPERLY
PART OF THE COLLECTIVE BARGAINING AGREEMENT UNDER SECTION 7106(B)(2) OF
THE STATUTE AND WHICH INVOLVED PROCEDURES TO BE FOLLOWED BY THE ACTIVITY
IN EXERCISING ITS MANAGEMENT RIGHTS.

THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE AGENCY FILED AN OPPOSITION.

IN ITS EXCEPTION THE UNION IN ESSENCE CONTENDS THAT THE AWARD IS
CONTRARY TO SECTION 7106 OF THE STATUTE. IN SUPPORT OF THIS EXCEPTION,
THE UNION ASSERTS THAT THE ARBITRATOR, IN RELYING ON SECTION 7106(A),
"MADE NULL AND VOID" A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT WHICH WAS PROPERLY INCLUDED IN THAT AGREEMENT IN ACCORDANCE
WITH SECTION 7106(B) OF THE STATUTE. /2/

WHILE THE UNION'S EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
WILL FIND AN AWARD DEFICIENT, IN THIS CASE THE UNION HAS NOT
DEMONSTRATED IN WHAT MANNER THE AWARD IS CONTRARY TO SECTION 7106 OF THE
STATUTE. THE AUTHORITY HAS PREVIOUSLY HELD THAT AN ARBITRATOR MAY NOT
INTERPRET OR ENFORCE A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT SO
AS TO DENY AN AGENCY THE AUTHORITY TO EXERCISE ITS RIGHTS UNDER SECTION
7106 AND THAT THOSE RIGHTS MAY NOT BE INFRINGED UPON, WAIVED, OR
RELINQUISHED THROUGH THE AWARD OF AN ARBITRATOR. PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL AVIATION ADMINISTRATION, 5
FLRA NO. 101(1981). THE AUTHORITY HAS ALSO HELD THAT, WHILE THE RIGHTS
OF MANAGEMENT SET FORTH IN SECTION 7106(A) ARE SUBJECT TO SECTION
7106(B)(2), THIS PROVISION ONLY AUTHORIZES THE ESTABLISHMENT OF
PROCEDURES TO THE EXTENT THAT THEY DO NOT PREVENT MANAGEMENT FROM ACTING
AT ALL. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, SUPRA. IN
THIS CASE, THE ARBITRATOR, TAKING COGNIZANCE OF THE PROVISIONS OF
SECTION 7106(A) AND 7106(B), CONCLUDED THAT THE ACTIVITY WAS EXERCISING
A RESERVED MANAGEMENT RIGHT UNDER SECTION 7106(A) WHEN IT CHANGED THE
POSITION DESCRIPTIONS OF CERTAIN OF ITS SUPERVISORS TO REFLECT THE
CHANGES BEING MADE IN THEIR WORK ASSIGNMENTS. THE AUTHORITY AGREES.
THE CHANGES MADE BY THE ACTIVITY IN THIS CASE WERE CLEARLY WITHIN ITS
RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK.
THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
AWARD.

ISSUED, WASHINGTON, D.C., AUGUST 27, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ SECTION 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/2/ 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--

(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL

SECURITY PRACTICES OF THE AGENCY; AND

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;

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

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED;

. . . .

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION(.)

. . . .