Number 137                    September 2000

COURT DECISIONS  |   FLRA    |   MSPB

Department of Defense, Defense Logistics Agency, Defense Distribution Center, Distribution Depot Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 0-AR-3276, September 26, 2000, 56 FLRA No. 116.

FLRA turned down agency exceptions to an award in which the arbitrator sustained a grievance alleging that the agency violated the contract's provisions requiring rotation of temporary duty assignments when, without explanation, it passed over the grievant in making temporary duty assignments. The arbitrator found that the action was based on allegations of improper conduct during a previous TDY assignment, which were more appropriately handled under the agency's disciplinary procedures, and ordered the grievant made whole for any lost pay and benefits. FLRA found that the BEP test didn't apply because enforcement of the contract's TDY rotation procedure didn't affect the right to assign work.

When the grievant, a heavy mobile equipment mechanic with expertise in the mechanical systems of the multiple launch rocket, was informed, without explanation, that he would not be sent on a TDY assignment to Denmark even though he was next in line for the assignment, he grieved, alleging a violation of Article XXXII, Section 3 of the contract, which reads as follows:

The Employer will assign offers of TDY on an equitable and rotational basis among employees who are assigned to the same job number and have the necessary qualifications . . . provided the employee is not under a letter of instruction for leave usage or has documented performance below the satisfactory level.

(Although the agency never told the grievant why he was passed over for the Denmark assignment, the grievant was being investigated at the time for alleged misconduct in connection with one of the grievant's previous assignments.)

When the matter was referred to arbitration, the arbitrator sustained the grievance and ordered the grievant made whole by paying him any lost pay and benefits he would have received absent the violation of the contract provision. The arbitrator found, among other things, that the grievant was not disqualified under either of the two exceptions to the contract's TDY assignment procedure; that the "only suggested reason" for the denial of the Denmark assignment was the grievant's behavior on the previous TDY assignment to Israel for which he had been disciplined after being passed over for the Denmark assignment; that the agency didn't refer to any regulation, rule or past practice that allowed them to "disqualify" the grievant; and that TDY assignment rosters, which must provide that the employees on the roster are qualified to perform the work, don't affect management's right to assign work. He also said that the agency didn't dispute that the grievant was qualified to perform the work on the scheduled TDY.

The agency claimed that award affected management's right to assign work because it disregarded management's right to determine employee qualifications. After describing the BEP test that FLRA applies to awards affecting management rights, the Authority concluded it was unnecessary to apply the test because the award didn't affect management's rights.

[T]he Authority has held that where management determines that it is necessary for employees to perform the duties of their positions at different locations and that the employees to be selected for such assignments are equally qualified, a provision establishing the criteria for deciding which of those employees will perform their duties at one or another of those different locations does not affect management's right to assign work under section 7106(a)(2)(B).

According to FLRA, the agency didn't demonstrate that denial of the TDY assignment to Denmark was based on a concern over the grievant's qualifications to perform the work of the assignment. "[A]s found by the Arbitrator, the Agency did not identify the qualification that the grievant was alleged to lack, explain its relation to the work to be performed on the TDY, or demonstrate that he was on notice as to that requirement." FLRA noted that the arbitrator had found that the decision to deny the grievant the Denmark assignment was based on allegations of improper conduct during a previous TDY assignment. Nor did the agency make an attempt to demonstrate to the arbitrator "the manner in which the alleged misconduct concerned the grievant's qualifications for the TDY assignment." Indeed, at the time of the arbitration hearing the grievant had been approved for and scheduled to undertake a new TDY assignment. Even if the agency's argument were construed as a claim that the grievant lacked the qualifications to perform such TDY assignments in foreign countries, FLRA continued, the agency presented no evidence that that lack had since been remedied by training or other experience.

FLRA also rejected the agency's claim that the award affects the agency's right to determine its internal security practices. "The Agency has not established that the matter had any connection to its internal security policies or practices."

In rejecting the agency's essence exception, FLRA said that even if the arbitrator interpreted Article XXXII, Section 3, as requiring it to notify the grievant of the basis of the denial of the TDY, the agency failed to show that such an interpretation was irrational, implausible, or manifested a disregard for the agreement. Nor did the arbitrator exceed his authority:

The Arbitrator . . . did not review the Agency's qualification determinations or address the merits of the Agency's disciplinary action. He simply found that the grounds on which the Agency denied a TDY assignment to the grievant concerned a disciplinary matter.

The agency's exceptions were accordingly denied.