U.S. Department of Justice, Federal Prison System and American Federation of Government Employees Council of Prison Locals Local 1741 (Authority decision, August 31, 1984)

Final FLRA decision. The Authority sets aside an arbitration award about an employee reassignment. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Federal Prison System reassigned a security officer to a senior specialist position. An arbitrator found the reassignment deficient under the labor agreement and ordered reinstatement with a 60-day trial period in the former job. The Authority held that the remedy improperly conditioned management's right to assign employees on a trial period. It also found that the cited performance appraisal statute did not apply because the activity had no established and approved appraisal system when it reassigned the employee. The Authority set aside the award.

Decision snapshot

• Authority: Assignment right under 5 U.S.C. § 7106(a)(2)(A); arbitration review under § 7122(a).
• Outcome: Agency exception granted; arbitration award set aside.
• Key point: An arbitrator could not require a trial period in the old position before management exercised its assignment right.

Full text (FLRA public release)

[ v15 p959 ]

15:0959(178)AR

The decision of the Authority follows:

15 FLRA No. 178

U.S. DEPARTMENT OF JUSTICE,
FEDERAL PRISON SYSTEM
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS,
LOCAL 1741
Union

Case No. O-AR-389

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Sol M. Elkin 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.

The parties stipulated the following issue for determination by the Arbitrator:

Whether Management violated the collective bargaining agreement when it reassigned the Grievant from his position as Security Officer to the position of Senior Specialist. If so, what shall be the remedy?

The Arbitrator determined that the grievant's reassignment was procedurally deficient under the parties' collective bargaining agreement and was not in accordance with 5 U.S.C. 4302(b)(6) /1/ providing an employee an opportunity to demonstrate acceptable performance before reassignment. Accordingly, the Arbitrator awarded as follows:

The grievance is granted. The Grievant shall be reinstated to the position he held prior to his reassignment and be given 60 days to demonstrate his ability to perform the job. At the end of the trial period his performance shall again be evaluated. If that evaluation indicates inadequate performance, the Employer may reassign him or take any other appropriate action in accordance with the collective bargaining agreement and applicable laws and regulations.

As one of its exceptions the Agency contends that the award is contrary to management's right under section 7106(a)(2)(A) to assign employees. The Authority agrees.

In American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration Northeast Program Service Center, 9 FLRA 1025 (1982) (proposal 1), the Authority considered a proposal which would have prevented the agency from exercising certain management rights under section 7106(a) (to remove or reduce in grade employees under section 7106(a)(2)(A)) without first allowing the employee an opportunity to perform in a like-graded position. The Authority held that the proposal was inconsistent with management's rights under section 7106(a) since it would impose a condition which itself would interfere with the exercise of those rights by the agency. In this respect 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). E.g., Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA No. 43 (1983). Thus, in terms of this case, by vacating management's assignment of the grievant from his security officer position to the senior specialist position and by improperly conditioning that assignment on a 60-day trial period in which the grievant has an opportunity to demonstrate his ability to perform, the award directly interferes with management's right to assign employees under section 7106(a)(2)(A). In addition, because the record before the Authority clearly indicates that at the time of the grievant's reassignment, a performance appraisal system had neither been established nor approved at the Activity under 5 U.S.C.Chapter 43, the provisions of 5 U.S.C. 4302(b)(6) were inapplicable. See Wells v. Harris, 1 MSPB 199 (1979). Therefore, the Arbitrator's award is deficient as contrary to section 7106(a) of the Statute and is not otherwise authorized by 5 U.S.C. 4302(b)(6). Accordingly, the award is set aside.

Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. 4302(b)(6) provides:

(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for--

. . . .

(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.