Number 138                    December 2000

COURT DECISIONS  |   FLRA   |   MSPB

Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 0-AR-3258, November 30, 2000, 56 FLRA No. 161.

FLRA turned down agency exceptions to an award in which the arbitrator ordered the agency to remove the work area restrictions it placed on the grievant. Although the award affected management's right to assign work, FLRA found that the arbitrator was enforcing a contract provision requiring all personnel actions to be free of discrimination or reprisal, which constituted a prophylactic appropriate arrangement designed to protect unit employees from discrimination or retaliation.

The grievant, a GS-9 Computer Specialist, was called to service a computer in the offices of the Human Resources Department. When he arrived in the office he asked a human resources employee if she had heard anything about the union president's termination and whether he had won his hearing. She refused to talk about the matter, indicating that she did not think it appropriate to discuss the case. There was no further conversation about the matter.

When the grievant arrived for work the next day his supervisor advised him that he'd no longer be allowed to service computers in the office of Human Resources. Later that day he was told he wasn't allowed to service computers anywhere in the offices of the Director or Deputy Director. When he grieved, the agency refused to address the merits of the grievance on the ground that the grievant wasn't a member of the bargaining unit. When arbitration was invoked, the parties agreed to place the case in abeyance so the union could file a CU petition. When FLRA's Regional Director found that the grievant was not a professional employee and thus was in the nonprofessional consolidated bargaining unit represented by the union, the parties continued with the arbitration proceeding.

The arbitrator found that the work area restriction imposed on the grievant was in retaliation for the grievant's open support of the union president. Citing, among other things, a contract provision stating that unit employees had the right to assist a labor organization without fear of reprisal and that all personnel actions were to be free of discrimination or reprisal, the arbitrator ordered that the work restriction be removed.

In its exceptions the agency claimed, among other things, that the award violated the agency's rights to assign work, to discipline, and to determine its internal security practices.

Finding that the award did affect management's right to assign work, the Authority proceeded to apply the two-prong BEP test that it applies to all claims that an award affects a management right. FLRA found that the arbitrator was enforcing a contract provision requiring all personnel actions to be free of discrimination or reprisal. Citing cases in which FLRA has found contractual provisions requiring the agency to be "fair and equitable" to be prophylactic appropriate arrangements, the Authority concluded that the contractual requirement that personnel actions be free of discrimination or reprisal also was a prophylactic appropriate arrangement designed to protect unit employees from discrimination or retaliation. Thus the first prong of the BEP test was satisfied. FLRA also found that the remedy was a proper reconstruction of what the agency would have done had it not violated the agreement's appropriate arrangement requirement. Thus the second prong of the BEP test was satisfied.

FLRA went on to find that the agency undercut its own argument that the award interfered with its right to discipline when it also asserted that "[t]here is no dispute by either party in this case that the grievant was not disciplined[.]" FLRA said that "if the work restriction is not discipline as argued by the Agency, but rather the assignment of work, then the removal of that restriction by the Arbitrator cannot be said to affect management's right to discipline. As such, the Agency has not shown how the removal of the work restriction by the Arbitrator affects its right to discipline."

In rejecting the agency's claim that the award violated the agency's right to determine its internal security practices, FLRA said the following:

The only argument made in this regard was that the Medical Center CEO and the Chief of Human Resources were "adamant that, in the interest of internal Medical Center security, the [g]rievant should not have access to confidential information in their work areas." Exceptions at 10. There is no rationale given for this statement by the Agency and no explanation is offered as to how the removal of the work restriction by the Arbitrator affects its ability to determine its internal security practices. No further discernible argument with respect to this assertion is made. As such, the Agency claim is nothing more than a bare assertion, and in accordance with Authority precedent it must be denied. See, e.g., United States Dep't of Transp., FAA, Wash., D.C., 55 F.L.R.A. 322, 326 (1999); AFGE, Local 3615, 54 F.L.R.A. 494, 499 (1998).

The agency's exceptions were accordingly denied.