11:0193(43)AR - VA Hospital, Lebanon, PA and AFGE Local 1966 -- 1983 FLRAdec AR



[ v11 p193 ]
11:0193(43)AR
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 a