172d Infantry Brigade and AFGE Locals 1712, 1834, and 1949 (Authority decision, August 12, 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 interpreted an agreement to bar the Army from assigning certain unit work to other personnel when bargaining unit employees could perform it on overtime. The Authority found the award interfered with management's right to assign work. It set aside the award.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and assignment right under § 7106(a)(2)(B).
• Outcome: Arbitration award set aside.
• Key point: Management could choose who would perform the work, including outside the bargaining unit.

Full text (FLRA public release)

[ v19 p542 ]

19:0542(71)AR

The decision of the Authority follows:

19 FLRA No. 71

172d INFANTRY BRIGADE,
FORT RICHARDSON, ALASKA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCALS 1712, 1834 and 1949
Union

Case No. O-AR-946

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Paul D. Jackson 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 Arbitrator stated the issue of the grievance to be whether the Activity violated the parties' collective bargaining agreement by assigning a supervisor to perform work on an overtime basis rather than the grievant. The Arbitrator granted the grievance finding that the Activity violated the collective bargaining agreement by assigning work to a supervisor which should have been assigned to the grievant, and the Arbitrator awarded the grievant backpay in the amount of eight hours of overtime.

As one of its exceptions, the Agency contends that the award is contrary to management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute. The Authority agrees.

The Authority has repeatedly recognized that the plain language of section 7106 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.2d 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. Id.; National Treasury Employees Union and U.S. Customs Service, 17 FLRA No. 12 (1985); U.S. Customs Service, Laredo, Texas and Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. With respect to the assignment of work on overtime, in American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (proposal 2), the Authority found inconsistent with management's right to assign work a proposal which precluded the agency from assigning work normally performed by unit employees to supervisors beyond their normal duty hours if the work otherwise would be performed by unit employees on overtime. Similarly, in American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982) (proposal 1) the Authority found inconsistent with section 7106(a)(2)(B) a proposal providing that management could not assign duties normally performed by employees in the bargaining unit to supervisors when those duties could be performed by unit employees on overtime. In terms of this case, the Authority therefore finds that the award is deficient as contrary to management's right to assign work pursuant to section 7106(a)(2)(B) by interpreting and enforcing the parties' collective bargaining agreement so as to negate management's determination as to which personnel will receive particular work assignments. Accordingly, the award is set aside. /1/ Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ In view of this decision, it is not necessary to address the other exceptions to the award.