American Federation of Government Employees, Local 41, AFL-CIO (Union) and Department of Health and Human Services, Office of the Secretary, Headquarters (Activity)

 



[ v08 p98 ]
08:0098(18)AR
The decision of the Authority follows:


 8 FLRA No. 18
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 41
 Union
 
 and
 
 DEPARTMENT OF HEALTH
 AND HUMAN SERVICES,
 OFFICE OF THE SECRETARY,
 HEADQUARTERS
 Activity
 
                                            Case No. 0-AR-150
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HERBERT FISHGOLD FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.7122(A))
 (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE ACTIVITY
 FAILED TO PROCESS A REVISED POSITION DESCRIPTION INTENDED TO CORRECT
 CERTAIN DEFICIENCIES FOUND DURING A DESK AUDIT OF THE GRIEVANT'S
 POSITION.  FOLLOWING THE DESK AUDIT, THE GRIEVANT AND HER GRIEVANT'S
 POSITION.  FOLLOWING THE DESK AUDIT, THE GRIEVANT AND HER SUPERVISOR
 PREPARED A REVISED POSITION DESCRIPTION AND SENT IT TO THE ASSISTANT
 SECRETARY IN SEPTEMBER 1979 FOR APPROVAL AND FORWARDING TO THE PERSONNEL
 OFFICE. HOWEVER, THE ASSISTANT SECRETARY'S OFFICE DECLINED TO PROCESS
 THE POSITION DESCRIPTION.  THE GRIEVANT FILED A GRIEVANCE ALLEGING THE
 ACTIVITY VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY FAILING TO
 PROVIDE HER WITH AN ACCURATE POSITION DESCRIPTION.  WHILE THE GRIEVANCE
 WAS PENDING, THE ACTIVITY PREPARED ANOTHER POSITION DESCRIPTION FOR THE
 GRIEVANT FOLLOWING A SECOND DESK AUDIT.  THE GRIEVANT REFUSED TO
 PARTICIPATE IN THIS DESK AUDIT AND IN THE PREPARATION OF THE NEW
 POSITION DESCRIPTION.  INSTEAD, SHE CONTINUED TO PURSUE HER GRIEVANCE
 WHICH ESSENTIALLY SOUGHT TO HAVE THE SEPTEMBER 1979 POSITION DESCRIPTION
 SENT FORWARD.  THE ARBITRATOR FOUND THAT THE ACTIVITY VIOLATED THE
 AGREEMENT BY FAILING TO PROVIDE THE GRIEVANT WITH AN ACCURATE POSITION
 DESCRIPTION AND MADE THE FOLLOWING AWARD:
 
    THE GRIEVANCE IS SUSTAINED TO THE EXTENT INDICATED ABOVE.  THE AGENCY
 IS FOUND TO HAVE
 
    VIOLATED THE AGREEMENT BY FAILING TO AFFORD THE OPPORTUNITY FOR A
 CONFERENCE PRIOR TO ISSUING
 
    THE THIRD STEP ANSWER, AND BY FAILING TO TRANSMIT THE AGREED-TO
 POSITION DESCRIPTION TO ITS
 
    DIVISION OF PERSONNEL TO PERMIT THAT DIVISION TO COMPLETE ITS REVIEW
 OF THE POSITION.  THE
 
    AGENCY IS THEREFORE DIRECTED TO TAKE NOW THE ACTION IT IMPROPERLY
 FAILED TO TAKE IN SEPTEMBER
 
    1979, NAMELY THE FORWARDING TO THE DIVISION OF PERSONNEL OF THE
 AGREED-TO JOB DESCRIPTION IN A
 
    FORMAT ACCEPTABLE TO THE DIVISION.
 
    AS ONE OF ITS EXCEPTIONS, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
 CHAPTER 511, SUBCHAPTER 4 OF THE FEDERAL PERSONNEL MANUAL (FPM) WHICH
 REQUIRES POSITION DESCRIPTIONS TO ACCURATELY REFLECT DUTIES PERFORMED
 AND TO BE SO CERTIFIED.  THE AGENCY MAINTAINS THAT THE ARBITRATOR'S
 DIRECTION TO FORWARD THE SEPTEMBER 1979 POSITION DESCRIPTION TO THE
 PERSONNEL OFFICE WOULD VIOLATE THESE FPM PROVISIONS BECAUSE THE LIST OF
 DUTIES CONTAINED IN THAT DESCRIPTION IS NO LONGER ACCURATE.
 
    IT IS EVIDENT FROM THE RECORD THAT THE SEPTEMBER 1979 POSITION
 DESCRIPTION MAY NO LONGER BE AN ACCURATE REFLECTION OF THE GRIEVANT'S
 CURRENT DUTIES.  CONSEQUENTLY, IT WOULD BE CONTRARY TO THE FPM TO ORDER
 ITS CERTIFICATION.  THEREFORE, THE AUTHORITY FINDS THAT THE AWARD IS
 DEFICIENT IN DIRECTING THE ACTIVITY TO PROCESS THE SEPTEMBER 1979
 POSITION DESCRIPTION AND THAT ACCORDINGLY IT MUST BE MODIFIED BY
 STRIKING THE LAST SENTENCE AND SUBSTITUTING THE FOLLOWING SENTENCE:  /1/
 
    THE AGENCY IS THEREFORE DIRECTED TO NOW PREPARE AND FORWARD TO THE
 DIVISION OF PERSONNEL A
 
    CURRENT AND ACCURATE POSITION DESCRIPTION IN A FORMAT ACCEPTABLE TO
 THE DIVISION
 
    ISSUED, WASHINGTON, D.C, FEBRUARY 10, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY