11:0193(43)AR - VA Hospital, Lebanon, PA and AFGE Local 1966 -- 1983 FLRAdec AR
[ v11 p193 ]
The decision of the Authority follows:
11 FLRA No. 43 VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1966 Union Case No. O-AR-259 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Alexander M. Freund filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The dispute in this matter concerns the Activity's practice of excusing bargaining-unit physicians stationed at the outpatient clinic substation in Harrisburg, Pennsylvania, from serving as medical officer of the day (MOD) and from performing other related on-call duties at the medical center in Lebanon, Pennsylvania, which duty assignments were performed on a rotating basis by bargaining-unit physicians who were stationed at the medical center. A grievance was filed protesting the practice that was submitted to arbitration. The Arbitrator sustained the grievance, concluding that the Activity's practice of assigning such work to physicians stationed at the medical center and excusing the physicians stationed at the clinic substation was an arbitrary and discriminatory application of Article II, Section 5, the management rights provision of the parties' collective bargaining agreement. /1/ In the Arbitrator's judgment there was no apparent legitimate management need for not assigning MOD and other related on-call duties to all bargaining-unit physicians including those stationed at the clinic substation. Accordingly, the Arbitrator held that the Activity's practice was an arbitrary application of the management rights provision of the agreement and was an abuse of discretion in exercising its reserved rights and consequently violated Article II, Section 5 of the agreement. Therefore, the Arbitrator ordered that the practice may not be continued. As one of its exceptions, the Agency contends that the award is contrary to section 7106(a) of the Statute. The Authority agrees. It is well established that an arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement so as to deny the authority of an agency to exercise its statutory rights under section 7106(a), American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA No. 14 (1981), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights, American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA No. 56 (1981). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. Encompassed within that authority is the discretion to determine which employees will receive particular work assignments. National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA No. 106 (1981). In terms of this case, the Arbitrator determined that there was no apparent legitimate need for management's practice of excusing bargaining-unit physicians stationed at the clinic substation from MOD and other related on-call duties at the medical center, and the award essentially prescribes the assignment of those duties to such physicians and precludes management's practice of assigning those duties exclusively to bargaining-unit physicians stationed at the medical center. Consequently, the award directly interferes with management's right to determine which employees will receive particular work assignments and is therefore contrary to section 7106(a)(2)(B). American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA No. 74 (1982); American Federation of Government Employees, AFL-CIO, Local 1331 and Department of Agriculture, Science and Education Administration, Eastern Regional Research Center, Philadelphia, Pennsylvania, 4 FLRA No. 2 (1980). Accordingly, the award is set aside. Issued, Washington, D.C., February 1, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ According to the Arbitrator, Article II, Section 5 sets forth the rights of management, including "the right to assign employees, the right to assign work and the right to determine the methods, means and personnel by which operations are to be conducted."