17:0561(85)AR - HHS, SSA, Kansas City, MO and NTEU -- 1985 FLRAdec AR



[ v17 p561 ]
17:0561(85)AR
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 Arbitrat