U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Social Security Administration, Boston Region and American Federation of Government Employees, Local 1164, 0-AR-3176, June 13, 2001, 57 FLRA No. 55.

In a split decision (Member Wasserman dissenting), the Authority set aside that portion of an arbitration award directing the reassignment of the grievant because it failed Prong II of the BEP test—i.e., it wasn't a proper reconstruction of what the agency would have done had it not violated the contract provisions that the arbitrator found the agency had violated.

While the grievant was on vacation, her supervisor on several occasions entered her work cubicle where he examined her pending work files in her file cabinet and overhead bins, discarded out-dated papers within certain files, completed work necessary to close selected files, and reassigned some files to other staff. The grievant, who was upset on realizing that her supervisor had searched her files and desk drawers and overhead bins in her absence, and who was further upset when her supervisor told her to bring her files to him as she completed processing them because he believed she needed assistance in managing her work, filed a grievance.

The arbitrator found that the supervisor, by failing to obtain written permission to search the desk, and by failing to communicate with the grievant about her performance, violated the contract's requirements that employees be treated with dignity and respect and that searches of "arrangements . . . for secure storage of . . . personal belongings" be done in compliance with instructions contained in the SSA Personnel Manual of Supervisors. As a remedy, he directed the agency to "cease and desist" from entering the grievant's overhead bins during her absence without the Area Manager's or Assistant Area Manager's prior written authorization "for a specific purpose." He also directed the agency to reassign the grievant to another supervisor.

The majority, assuming but not deciding, that Prong I of the BEP test was met, found that the portion of the award directing a reassignment failed Prong II of the BEP test—i.e., it wasn't a proper reconstruction of what the agency would have done had it not violated the contract provisions cited by the arbitrator.

We conclude that under any of the provisions the Arbitrator found the Agency to have violated, transferring the grievant to another supervisor is not a proper reconstruction of what management would have done had it complied with the contract provision. First, had the Agency complied with Article 21, the supervisor would have engaged the grievant in "honest feedback and open two-way communications," pursuant to the Arbitrator's interpretation of Article 21, § 1. Award at 20. Upon identifying shortcomings in her work, the supervisor would have applied the remedial provisions of Article 21, § 6 of the parties' agreement, including "the collection and analysis of data which focuses 'on the process and not on the individual employees.'" Id. Nothing in Article 23 addresses, directly or indirectly, reassignment of Agency supervisors. As a result, reconstruction of what the Agency would have done had it complied with Article 21 cannot possibly entail such reassignment.

Similarly, had the Agency complied with Article 3, § 2A, second paragraph, the grievant's supervisor would have "deal[t] with [the employee] in a professional manner and with courtesy, dignity and respect." Award at 2 n.1. As is the case with Article 21, Article 3 does not involve, directly or indirectly, reassignment of the grievant to a different supervisor.

Although Member Wasserman acknowledged that FLRA has required that both prongs of the two-prong BEP test be satisfied by awards affecting management rights, the facts of this case prompted him to reevaluate the application of Prong II where reconstruction isn't feasible. He concluded that neither the statute nor the Supreme Court's decision in IRS v. FLRA, 494 U.S. 922 (1990) (IRS) requires "reconstruction" in all situations. Consequently, he would "modify the BEP standard to state that in cases where a management right is affected, reconstruction is not a requirement where an arbitrator finds a violation of a collective bargaining agreement negotiated pursuant to § 7106(b) and reconstruction is not feasible. I would discard the mandatory use of the second prong of BEP in such situations."

The majority disagreed. Although it recognized that "contract provisions such as those involved in this case make it difficult to construct meaningful remedies[,]" the BEP requirements were rooted in the Supreme Court's IRS decision where the Court held that there were only two limitations on management's § 7106(a) rights: "applicable laws" (with respect to § 7106(a)(2) rights) and the § 7106(b) exceptions to management's § 7106(a) rights.

Applying the Court's decision in IRS, it is clear that provisions negotiated under § 7106(b) are enforceable vis a vis management's rights under § 7106(a). However, determining that [a] provision was negotiated under § 7106(b) cannot end the inquiry. If it did, then constraints on management's rights that were never agreed to under § 7106(b) could be imposed. . . . Put simply, requiring reconstruction is necessary to ensure that an agency's section 7106(a) rights are limited only to the extent the parties bargained for. Regardless of whether allowing arbitrators to impose additional, different limitations on management's rights would be good policy, under IRS, it is not good law.