17:0038(12)AR - NTEU and Customs Service -- 1985 FLRAdec AR



[ v17 p38 ]
17:0038(12)AR
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 t