17:0561(85)AR - HHS, SSA, Kansas City, MO and NTEU -- 1985 FLRAdec AR
[ v17 p561 ]
The decision of the Authority follows:
17 FLRA No. 85 THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, KANSAS CITY, MISSOURI Activity and NATIONAL TREASURY EMPLOYEES UNION Union Case No. 0-AR-866 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Merton C. Bernstein filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute in this matter arose when the reviewing official, the second level supervisor, lowered the performance appraisals given to the grievants by the evaluating official, their first level supervisor. A grievance was filed which alleged that provisions of the parties' collective bargaining agreement dealing with performance appraisals had been violated. As his award, the Arbitrator ruled, in pertinent part, that under the parties' agreement the reviewing official lacked authority to lower performance appraisals and ordered that the appraisals be adjusted accordingly. /1/ As one of its exceptions, the Activity contends that this aspect of the award is contrary to section 7106(a)(2)(B) of the Statute. The Authority agrees. The Authority has consistently found any union proposal which prescribes specific duties to be performed by particular non-bargaining unit personnel in the agency to be outside the duty to bargain since it would directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute by eliminating the discretion inherent in that right. E.g., American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), appeal docketed sub nom. Local 32, American Federation of Government Employees v. Federal Labor Relations Authority, No. 84-1251 (D.C. Cir. June 15, 1984). In that regard, 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 rights under section 7106(a) of the Statute, 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, 79 (1981) (Union Proposal 4), 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), cert. denied, 103 S.Ct. 2085 (1983), or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights, e.g., Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA 193 (1983). In the terms of this case, the Arbitrator interpreted the parties' collective bargaining agreement so as to preclude the reviewing official, a non-bargaining unit employee, from lowering the employees' performance appraisals. That aspect of the Arbitrator's award therefore improperly limits and directly interferes with management's right under section 7106(a)(2)(B) to assign performance appraisal review duties to the reviewing official by eliminating the discretion inherent in that right and by the Arbitrator having substituted his judgment for that of the Activity in exercising such right. Consequently, that aspect of the award is contrary to section 7106(a)(2)(B) of the Statute. Accordingly, the disputed aspect of the Arbitrator's award is set aside. /2/ Issued, Washington, D.C., April 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Although the parties stipulated four issues to the Arbitrator, the Activity excepts only to the Arbitrator's ruling on the reviewing official's authority to lower performance appraisals. Thus, it is not necessary to address the other issues. /2/ In view of this decision, it is not necessary to address the Activity's other exceptions to the award.