17:0038(12)AR - NTEU and Customs Service -- 1985 FLRAdec AR
[ v17 p38 ]
The decision of the Authority follows:
17 FLRA No. 12 NATIONAL TREASURY EMPLOYEES UNION Union and U.S. CUSTOMS SERVICE Agency Case No. O-AR-601 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Thomas N. Rinaldo filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The parties submitted to arbitration the issue of whether the August 1982 performance appraisal of the grievant was in violation of Article 16 of the parties' collective bargaining agreement. Article 16 pertinently provides that "performance elements and performance standards . . . will be reasonable for each position." The Arbitrator evaluated the performance element of "overtime turndowns" under the nonquantitative requirement of the parties' agreement and found that the element was not reasonable. Consequently, he determined that the grievant's disputed appraisal should not take into account the grievant's performance under that element. Because the record established that the grievant in that event would have received the highest overall performance appraisal of "outstanding," the Arbitrator as his award ordered the grievant's 1981-82 overall annual appraisal amended accordingly. As one of its exceptions the Agency essentially argues that the award is contrary to section 7106(a) of the Statute. The Authority agrees. The Authority has repeatedly recognized that the plain language of section 7106 provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 103 S.Ct. 2085 (1983). Therefore, the Authority has consistently held that no arbitration award may improperly deny an agency the authority to exercise its rights under that section or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Id.; American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314, 321 (1981). In particular, the Authority has held that identification of critical elements constitutes an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1981), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); Saint Lawrence Seaway Development Corporation, 5 FLRA 70. In terms of this case, the Authority finds that the provision of the agreement found violated by the Arbitrator and consequently the award enforcing that provision in resolving the grievance are contrary to section 7106(a)(2)(A) and (B) as an improper interference with management's right to identify critical elements. See Saint Lawrence Seaway Development Corporation; American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 127 (1984) (union proposal 3) (in which case the Authority found the proposal that performance standards would be fair and equitable to be outside the duty to bargain as interfering with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute). Both the agreement provision and the award improperly impose a substantive limitation on management's discretion to identify which employee tasks are critical. Moreover, by imposing such a limitation, the agreement provision prompted the interference by grievance and arbitration with management's rights. The provision provided the basis for the review by the Arbitrator of the Agency's identification of "overtime turndowns" as a critical element and permitted the substitution of judgment by the Arbitrator for that of management as to how the Agency should be run. Id.