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Title: Defense Automated Printing Service Detachment Office and AFG Local 156
Date: April 28, 1997
Arbitrator: Perry Zirkel
Citation: 1997 NAC 107

 

HEARING

            The hearing in this matter was held in Mechanicsburg, Pennsylvania, on 3/26/97 and 4/4/97.  The Employer was represented by employee relations specialist John Black.  The grievant, with the Union's concurrence, was represented by attorney Keith Kendall.  Testifying for the Union were chief steward Alan Novak; DAPSDO customers Edward Spittle, Larry McCartney, Jane Pecukonis, Roland Bryer, and James Nieb; and the grievant George Hand.  Witnesses for the Employer were personnel specialist William Lavage, personnel staffing specialist William Hinchberger, supervisor Lindsay Grable, and DAPSDO director Joseph Bradley.    The joint exhibits were the collective bargaining agreement (J-1), the grievance packet (J-2). and manpower management instruction (MMI) 12300.1D (Detail of Employees)  The grievant's 19 exhibits included the 9/23/96 termination of detail (G-1), the position description for the automated publishing specialists (G-3), letters of appreciation (G-4), the 10/1/96 medical slip (G-6), the 11/23/96 termination of detail (G-10), the 11/24/96 notification of reassignment (G-11), the MMI regarding involuntary reassignments (G-16), and Union steward Novak's notes of the 10/3/96 grievance meeting (G-18).  The Employer's four exhibits included DAPSO's table of organization (E-2) and the 12/8/96 Swearingen promotion (E-4).  After closing arguments, the hearing ended on 4/18/97 with the submission of attorney Kendall's written statement regarding the Federal Labor Relations Authority (FLRA) decisions proffered by the Employer.

 

 

FACTS

            The Employer, the Defense Automated Printing Service (DAPS), is a self-supporting government operation that serves Department of Defense customers with regard to digital hard-copy transfer and storage.  Inasmuch as it receives no appropriated funds from the government, efficiency is the key to its survival and success.  Its workforce was at a peak of 100 employees in 1992 and has downsized to approximately 72 presently.  Automation and technology, with the shift from the offset printing to the digital mode, are projected to continue not only the decreasing size but also the changing nature of the workforce.  Only two wage-grade, or blue collar, employees remain, and their positions are scheduled for being phased out.

            The organization consists of 10 print shops in five states,  The primary site, which is in Mechanicsburg, Pennsylvania, consists of the customer service department, currently staffed by 6 employees, and the production department, currently staffed by 28 employees.

            George Hand has been a government employees for approximately 20 years.  He has been with DAPS since 1978.  Starting in approximately 1993, he was a printing specialist (paygrade GS) in the customer service department.  When, as part of the general downsizing, the workload of the department increased, he and his colleagues complained.  Although he performed his traditional

 

tasks satisfactorily,[1] he was manifestly upset about having been assigned clerical duties from an abolished position.  Department head Lindsay Grable, who had been Hand's co-worker for 12 years before being promoted to his supervisory position in 1990, convened a meeting of the employees to discuss the problems and explain the limitations.  However, in contrast with the other employees, Hand persisted in complaining at work about feeling swamped.[2]  Grable tried to ameliorate his continuing negativism by reassigning two of the disputed clerical duties to other employees, but it had no notable effect.

            In May 1996 in another effort to resolve the problem, Grable arranged for Hand's detail[3] to a proposed position that was intended to encompass both administrative and production duties.[4]  However, when the command office approved the position as consisting of entirely production duties, Grable terminated the detail at Hand's request.[5]

             In late September, which was a very busy time for the department based on not only the regular end-of-month but the important end-of-year fiscal close-out, Grable had reason to suspect that Hand would not come in to work.[6]  When Hand called in sick, Grable telephoned him at home in the middle of the second day and, during a heated discussion[7] in which Hand reported that he had a skin rash aggravated by stress, Grable requested medical documentation.[8]

            On 10/2/96, when Hand returned after three days of sick leave absence, Grable met with him and informed him that he was being detailed to other duties, effective the following day.[9]  The various expressed reasons centered on Hand's "bad attitude" and its cumulative effect on co-workers as well as its potential effect on customers.

            On 10/3/96, Hand filed a grievance.  At the informal grievance meeting, 1) Grable explained that one or more co-workers had to work overtime due to Hand's absence and that the stressful situation was not resolving itself; 2) Hand complained about the work environment; and 3) chief steward Novak maintained that in the absence of a request for reasonable accommodation and of a documented PARS problem, health and performance were respectively not proper reasons.[10]

            On 10/8/96, Grable issued his written response, concluding "due to the increasing customer demands and limited staffing, [Hand's printing specialist] job can only become more stressful" and, thus, "it would be in George's best interest as well as that of this organization to pursue [his] eventual reassignment ... to the position he is currently detailed to."

            On 10/11/96, Hand issued a third-step formal grievance, asserting that he was "being involuntarily reassigned to a newly created position via a temporary detail to unclassified duties."[11]

            On 10/24/96, after a third-step meeting on 10/22/96, DAPS director Joseph Bradley denied Hand's grievance.[12]

            On 11/6/96, the Union initiated the step leading to the present arbitration.

            On 11/20/96, the head of the production department, Charles Witmer, requested Hand's reassignment to the position of automated publishing specialist (pay grade GS-9), thereby making his transfer permanent.[13]  Within the week, the detail was formally terminated and the reassignment became officially effective.[14]   Hand had special skills in CD ROM technology, which was a production department need that was the basis of the reassignment.[15]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONTRACTUAL PROVISIONS

 

ARTICLE 4  -  AREAS OF MANAGEMENT JURISDICTION[16]

 

            Section 1.  The Employer retains the right and authority ...

            b. in accordance with applicable laws

                        (1) to ... assign ... employees ...;

                        (2) to assign work ... and to determine the personnel by which the Employer's operations shall be conducted....

 

 

ARTICLE 27  -  REASSIGNMENT

 

            Section 1.  For the purposes of this Article, a reassignment is the change of an employee from one (1) position to another position of the same grade regardless of title and series.

 

            Section 3.  Prior to effecting the involuntary reassignment of an employee to a vacant position, the Employer shall post a written notice within the major organizational element informing the eligible and qualified employees of the opportunity to volunteer to be considered for the reassignment to the vacant position....

 

            Section 6.  A bargaining employee who is dissatisfied with his current assignment shall have the right to request and be considered for reassignment....

 

ARTICLE 29  -  DETAILS

 

            Section 1.  A detail is a temporary assignment of an employee to a different position or set of duties for a specified period of time.

 

            Section 2.  Details shall only be used for meeting temporary needs of an organization.  Details in excess of thirty (30) days shall be in writing....

 

            Section 3.  No detail shall be made which shall compromise the open-competitive principles of the merit system or the principles of job evaluation.

 

            Section 6.  Details to positions of the same ... grade shall be limited to a maximum initial period of one hundred twenty (120) calendar days ...  Extensions ... are permitted ... in accordance with current OPM regulations.

 

ARTICLE 31  -  PERFORMANCE APPRAISALS

 

            Section 8. ....

            d. Other Personnel Actions:  Where the evaluation of performance is a factor in any personnel action the performance rating shall be used as the sole measurement of that performance.

 

 

 

ISSUE[17]

            Whether the Employer's involuntary detail and/or reassignment of the grievant violated the collective bargaining agreement?  If so, what shall the remedy be?

 

 OPINION

             This case, without all the extraneous elements, boils down to two successive, connected managerial actions in relation to an employee who was vocally unhappy with an inevitable and fundamental change in the work environment wrought by technology and competition.  The propriety of this managerial response in relation to the applicable provisions of the collective bargaining agreement (CBA) and related authority[18] is examined first in terms of over-arching claims and then in terms of the considerations specific to each of the two actions, respectively.

            The Union's[19] first over-arching argument, specifically that the Employer's actions violated the constitutional and contractual right of the grievant to express his dissatisfaction, merits summary disposition.  This facts of this case are far from meeting the multi-step test that the Supreme Court has established for public employee's First Amendment expression claims.[20].  For example, at the first step, there was no showing that the grievant's complaints were matters of public concern.  Similarly, the CBA provides employees dissatisfied with their current assignment to request and be considered for another assignment.[21]  There was no evidence that the Employer's actions were in any way violated the grievant's right to request a reassignment.

            The Union's other over-arching arguments were based on the CBA and corresponding MMI provisions related to reasonable accommodations and performance appraisal.  The reasonable-accommodation MMI,[22] which is specific to "handicapping conditions" and which is based on the Rehabilitation Act,[23] obviously does not apply to this case.  There was no claim, much less evidence, that the grievant met the definition of "handicapped employee."  Moreover, the attempted accommodations by the grievant's supervisor reflected rather than contradicted the general direction of this MMI.

            In contrast, the CBA provision concerning performance appraisal arguably covers the grievant's situation.  Although the pertinent MMI[24] mentions actions other than details and reassignments (e.g., demotions and promotions), the relevant section covers "any personnel action" in which performance measurement is a factor.[25].  Here, the revised statement of the "Organizational Support" critical element and the related supervisory comments on the grievant's 4/1/96-3/31/97 performance appraisal were too late, if not too little, in relation to the challenged detail and reassignment actions.[26]  Nevertheless, although it is a fairly close question, the arbitrator concludes that the Employer did not violate the CBA in the narrow circumstances of this case for the following cumulative combination of reasons: 1) these actions, in contrast with demotion or removal, were not performance-based per se; 2) inasmuch as there was no question that the grievant had persistently and patently expressed a negative attitude to his co-workers, measurement was not at issue; and 3) there is similarly no question that the Employer had given the grievant adequate warning and attempted amelioration in terms of his apparent problem.

 

The Detail

            The Union argues that the detail did not meet a temporary and reasonable need, thus violating the CBA.  However, the provisions of the relevant article,[27]  the corresponding MMI,[28] and related past practice[29] reveal that the Employer had wide latitude with regard to details. The organizational transition, including downsizing, necessitated agreed-upon flexibility and discretion for situations such as the one at issue.  The evidence does not come close to establishing that the Employer abused this discretion upon detailing the grievant. For example, this action did not compromise the open competitive principles of the merit system.

 

The Reassignment

            In contrast, the reassignment of the grievant clearly violated the open requirement in the CBA that the Employer must first post the position so that other qualified employees have the opportunity to be considered.[30]  This contractual violation must be assessed in light of both the Employer's statutory authority and the related evidence of good or bad faith.[31]

            The Employer argues that, as a matter of law, reassignments are a management prerogative. The underlying statute reserves to management the right to assign, and thus reassign, employees expressly subject to negotiated "procedures" and "appropriate arrangements."[32]  The Employer provided three Federal Labor Relations Authority (FLRA) decisions overturning arbitration awards, but they confirm rather than contradict that management's reassignment right is subject to negotiated procedures and appropriate arrangements.[33] In the first case, the basis of the FLRA's decision was that the CBA did not contain any provision specific to reassignments.[34]  Similarly, in the second case, the arbitrator's remedy was not founded an any specific negotiated provision.[35]  The third ruling was based on management's right to determine qualifications, which, again, was not addressed in the CBA.[36]  Other FLRA decisions cited in these opinions illustrate the obverse situation.[37]

            Thus, the negotiated procedure of a prior posting of the vacancy was within, not beyond, the bounds of the pertinent statutory authority so long as any resulting remedy for its violation does not inappropriately interfere with management's reassignment rights.[38]  The extent of the remedy within the statutory bounds depends on the related good or bad faith of the Employer in reassigning the grievant.

            The Union claims that the timing of the reassignment in relation to the prior two details of the grievant from the customer relations department and the immediately subsequent promotions of his former co-workers in said department reflects bad faith rather than coincidence.  A careful review reveals preponderant, although not overwhelming, evidence that the prior two details were good faith attempts by supervisor Grable, who had a close relationship with the grievant, to ameliorate a situation that was not only stressful to the grievant but inimical to his co-workers' productivity.  Similarly, the promotions of three co-workers, including Swearingen, were all of the career rather than competitive type based on the accretion of higher level duties for a substantial period of time.[39]  The Swearingen promotion, which was the focus of the Union's argument, did not become effective until 12/8/96[40] and was based on additional duties, including marketing initiative which the grievant had failed to demonstrate, during a period that started well before his first detail.[41]

            The Employer argues that this procedural violation was harmless error.  Whether other employees would have bid and whether the Employer would have chosen one of them rather than the grievant, after due consideration, is subject to speculation in either direction.  Presuming the harmless direction is not warranted in this case not only because allowing the Employer to skip agreed-upon steps would make a nullity of the CBA, but also because the Employer's own witness, personnel specialist Lavage, testified that the failure to post harms both the employee and potential bidders.

            Thus, the proper remedy in this case, based on the applicable statutory boundaries and the arbitrator's equitable powers, is to require prompt posting by the Employer of the automated publishing specialist position and due consideration[42] of any volunteers.  In light of the passage of time since the originating action, the posting shall be for twice the typical time.[43]  If a qualified employee volunteers whose selection would be, in light of the applicable circumstances, clearly more appropriate[44] than the grievant's, then the Employer shall return the grievant to his original position without prejudice.  The arbitrator retains jurisdiction for the limited purpose of implementation of the remedy.    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*   *   *   *   *   *   *   *   *   *   *   *   *   *   *

                                                        *

       DEFENSE AUTOMATED PRINTING SERVICE

               DETACHMENT OFFICE                 *

                                                        * AWARD

                       - and -                          *

                                                        * OF THE

 

  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES    *

                   LOCAL NO. 1156

                                                 *ARBITRATOR

 

                                                        *

FMCS Case No. 97-03362-7                                *

*   *   *   *   *   *   *   *   *   *   *   *   *   *   *

 

 

 

     The Employer's involuntary detail of the grievant did not,

     but its involuntary reassignment of the grievant did,

     violate the collective bargaining agreement.  Thus, the

     grievance is partly denied and partly upheld.

 

     The Employer shall promptly post the automated publishing

     specialist position for twice the typical period and shall

     duly consider any qualified employees who volunteer for

     the position.  In the event that any such employee should

     be selected for the position rather than the grievant, the

     Employer shall return the grievant to his prior position

     without prejudice.

    

 

      

 

 

 

 

 

 

 

 

 

 

          _____________________              ____________

             Perry A. Zirkel                     Date

 

 



                [1] For example, his performance rating for the period 4/1/95 to 3/31/96 was Fully Satisfactory, which is level 3 on a scale from 1(Unacceptable) to 5 (Outstanding).  Moreover, various customers commented positively about his performance in letters and testimony presented at the hearing.

                [2] For example, his co-workers referred  to him with the nick-name
"swamp thing" based on his constant complaining about being swamped with work.

                [3] "Detail" is a short -time, non-competitive assignment to a different position or set of duties, as controlled by Article 31 of the collective bargaining agreement (CBA), which is excerpted infra.

                [4] If this position had been approved as proposed, the plan was to move Lawrence Corr, one of the two remaining wage-grade employees, into Hand's customer service department position.

                [5] The Union's chief steward testified that the detail ended in June 1996, when the Union intervened on Hand's behalf.  Grable testified that he terminated the detail without Union intervention and that the official notice of this action has an effective date of 9/26/96.  These discrepancies need not be resolved inasmuch as they are not in any way determinative of this case's outcome.

                [6] Although Hand had accumulated approximately 800 hours of sick leave and previously not abused this contractual benefit, he had expressed his increasing feelings of stress and burnout; he announced that he would not work overtime even though this period sometimes necessitated overtime; and other employees were openly betting on whether he would appear at work.

                [7] For example, Grable opened the conversation by using the "F" word, but this sort of language was not reciprocally unusual between these two individuals based on their long employment relationship, including 12 years as co-workers.

                [8] Article 41 of the CBA provides, inter alia, that the Employer may require medical documentation for sick leave absences of three consecutive days or less where it conveys to the employee reasonable cause to believe that the use was an abuse.   The resulting medical excuse, which was not presented to the Employer until the hearing, merely listed "Anxiety/Stress" as the diagnosis.  Hand testified that he suffered from psoriasis and sleep problems that he attributed to the perceived  source of stress.

                [9]  Hand and Union chief steward Novak testified that  Grable stated that action was a "reassignment," which, as revealed in the relevant contractual excerpts infra, is distinguishable from a detail.  In his testimony, Grable admitted to referring to a reassignment, but only as the planned next step contingent upon the detail working out.  Similarly, according to the Union, the request of "detail to unclassified duties," dated 10/2/96, had an accompanying hand-written explanation that used the term "reassignment."  However, Grable testified credibly that the handwriting was not his, and personnel specialist Hinchberger testified with similar credibility, that no such attachment accompanied the notice in Hand's record.  Although the proof is mixed, it is preponderant that this initial action was a detail.

                [10] Significantly, Novak's admittedly selective notes did not confirm his testimony that Grable said that Hand would not be returning to his printing specialist position.

                [11] The document included the explanation that he had skipped the first and second formal steps due to the administrative infrastructure of DAPS.  The Employer constructive agreed to this procedure.

                [12] His denial included an assertion that Hand's reassignment challenge was not substantively arbitrable based on Article 37, Sec. 3(n).

                [13]  The Employer detailed the aforementioned (supra note 4) employee Corr into the position formerly occupied by Hand. 

                [14] Also in the interim, on 12/8/96 the  accretion promotion of Hand's former co-worker in the production department, Brenda Swearingen,  to a GS-11 position created on 10/4/96, became effective, and on 1/30/97, Grable included the supervisory comment on Hand's 4/1/96-3/31/97 performance appraisal that he "had developed and routinely expressed a negative perception of this organization's way of doing business .... [which] may be been a de-motivating force among co-workers in this department."  The rating for this critical element and for Hand's overall performance was, again, 3 (Fully Successful) on a 1-to-5 scale.

                [15] It was unclear from the record whether the specific automated publishing specialist position to which the Employer reassigned Hand was new or the one created in 10/27/93.  This matter need not be resolved to reach a decision with regard to the issue of this case.

                [16]  See also 5 U.S.C. 7106:

                (a) Subject to subsection (b) of this section, nothing in this chapter shall

                affect the authority of any management official of any agency --

                                (2) in accordance with applicable laws--

                                                (A) to ... assign ... employees ....

                                                (B) to .assign work ... and to determine the personnel by which                                                 agency  operations shall be conducted....

                (B) Nothing in this section shall preclude any agency and any labor

                organization from negotiating-- ...

                                (2) procedures which management officials ... will observe in

                                exercising any authority under this section; or

                                (3) appropriate arrangements for employees adversely affected

                                by the exercise of [such] authority ....

                [17] The Employer withdrew the initially submitted issue of substantive arbitrability of the reassignment with the  mutual understanding that was without prejudice or precedent with regard to future cases.

                [18] Specifically, the related authority stems from the pertinent legislation (supra note 16) and manpower management instructions (MMIs).

                [19] As a matter of convenience and convention. the arbitrator refers to the "Union" throughout this Opinion, although the grievant was represented by his own individual attorney.  As the party to the CBA, the Union has assented to and supported the grievant's arbitration.

                [20] See, e.g., Waters v. Churchill, 115 S. Ct. 49 (1994); Connick v. Myers, 461 U.S. 138 (1983); Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977);  Pickering v. Board of Educ., 391 U.S. 563 (1968).

                [21] See "Contractual Provisions" supra -- Art. 27, Sec. 6

                [22] Human Resources Instruction 12339.3A, referencing MMMINST 12339.2.

                [23] 29 U.S.C. 790-94.

                [24] Mechanicsburg MMI 12430.5 Change Transmittal 2.  

                [25] See "Contractual Provisions supra -- Art. 31, Sec. 2.  The preceding sections specifies that "the provisions of this Article shall take precedence over the provisions of the [MMI]."

                [26] In addition to the existing item concerning cooperative interaction with co-workers, the statement included a new item referencing support  for DAPS "workplace values."  The 10/30/96 supervisory comment referenced a negative effect on "the work efforts of others" but only in relation to his purported problem in organizing and completing tasks on time.  It was not until 1/30/97 that the supervisory comment was entered about his de-motivating negative expressions.  See supra note 14.

                [27] See "Contractual Provisions" supra -- Art. 29, Secs. 1-3.

                [28] Mechanicsburg MMI 12300.1D Change Transmittal 1.  For example, countering the Union's argument that the detail in this case was merely the pretext for the reassignment, the MMI makes clear that "[d]etails may ... be made pending official assignment, pending description and classification of a new position."

                [29]  Personnel specialists Hinchberger and Lavage testified credibly as to the consistent, visible, and long-standing latitude with regard to details.

                [30] See "Contractual Provisions" supra -- Art. 27, Sec. 3.

                [31] In contrast, the involuntary reassignment MMI (#12300.4) only applies to specified situations (3a-h), which the Employer has not pointed to, much less proven, in this case.

                [32] See supra note 16.

                [33] The fourth FLRA decision was a negotiability appeal.  Department of the Navy Mare Island Naval Shipyard and Federal Employee Metal Trades Council, 38 FLRA No. 110 (1991).  Inasmuch as the agency head in the instant case did not disapprove of the CBA provisions at issue, this FLRA ruling is not directly apposite.  It provides indirect guidance to the extent that it illustrates the principle that negotiated arrangements are not appropriate where they "excessively interfere" with the managerial right of reassignment.  Id. at 1416.

                [34] Department of HHS SSA, Charlotte Dist. and AFGE Local 3509, 17 FLRA No. 21 (1985).   This ruling cited, by way of contrast, a case where the FLRA upheld an award enforcing a negotiated appropriate arrangement.  See IRS, Austin Dist. and NTEU Chapter 52, 9 FLRA No. 672 (1982).

                [35] Naval Undersea Warfare Eng'g Station, Keyport and IAMAW Local 282, 22 FLRA No. 96 (1986).  Again, another ruling was cited by way of contrast.  See  IRS, Atlanta Dist. and NTEU Chapter 26, 22 FLRA No. 30 (1986).

                [36] Michigan Air Nat'l Guard, Selfridge Ang Base and ACT Mich. State Council, 33 FLRA No. 49 (1988).

                [37] See supra notes 34-35.

                [38]  A reciprocal reflection of the statutory allowance for "appropriate" arrangements, the term "inappropriately" is used here in recognition of the inherently intertwined interface between  managerial prerogatives and negotiated agreements.  See also supra note 33 ("excessively"). 

                [39] In each of these cases, the period was at least one year and as much as one and a half years.   One was part of the general elimination of wage-grade positions.  Contrary to the grievant's assertion, the promotion from the printing specialist position was not automatic; one of his former production department co-workers remains at GS-9.

                [40] See supra note 14.  This date had no clear connection to the detail or reassignment of the grievant.  The position description that the Union introduced for this position was dated 10/4/96, which was the day after the grievant's detail became effective, but the position number differed by one in the final digit.  Overall, this document does suggest some suspicion of bad faith, but it is not sufficient to outweigh the countervailing evidence concerning this set of promotions.

                [41] The evidence similarly weighs preponderantly but not heavily in the Employer's favor with regard to the detailing of employee Coors to the grievant's former position in customer relations for both the current situation and the prior attempt at amelioration.  The customer commendations, solicited at least in part by the grievant, similarly did not outweigh the evidence of his excessive intramural complaining.

                [42] The statutory reference to appropriate arrangements, not just pertinent procedures, in CBAs suggests that management's reassignment right is not absolute.  Abuse of discretion appears to be the intended standard for arbitral review, affording the Employer ample but not absolute latitude.

                [43] If such postings are not frequent enough in DAPS to establish a norm, the period shall be  three weeks.

                [44] See supra notes 38 and 42.

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