17:0963(129)AR - VA Medical Center, Togus, ME and AFGE Local 2610 -- 1985 FLRAdec AR
[ v17 p963 ]
The decision of the Authority follows:
17 FLRA No. 129 THE VETERANS ADMINISTRATION MEDICAL CENTER, TOGUS, MAINE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2610, AFL-CIO Union Case No. 0-AR-646 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Jerome S. Rubenstein filed by the Veterans Administration (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 dispute before the Arbitrator involved four separate grievances which were consolidated for consideration and resolution by the Arbitrator. The Agency filed exceptions to the Arbitrator's award with respect to two of the grievances. In the first of those grievances, the Union alleged that a temporary employee, who was employed for 104 hours as a WG-8 plumber, should have been paid at the WG-10 rate, the pay rate of permanent employees doing the same work. The Arbitrator agreed, essentially finding that the Activity acted improperly by setting different rates of pay for the same work and hiring a temporary employee at a lower rate than permanent employees. As his award, the Arbitrator ordered the Activity to pay the grievant the difference between the WG-8 and WG-10 pay rates. In its exceptions to the Arbitrator's award as to this grievance, the Agency contends, among other things, that the award is contrary to section 7121(c)(5) of the Statute. In support of this exception, the Agency essentially argues that the grievance directly concerned the classification of the grievant's position. The Authority finds that the award is contrary to section 7121(c)(5) of the Statute as alleged. It is clear that the substance of the grievance before the Arbitrator was whether the duties performed by the grievant should have been compensated at the pay rate for the higher-grade level. Therefore, because of this direct "interconnection" between the grievance and the classification of the grievant's position and because of the reclassification effect of the award, the grievance and the award concern the classification of a position within the meaning of section 7121(c)(5) which precludes such matters from grievance and arbitration. E.g., Overseas Education Association and Department of Defense Dependents Schools, 15 FLRA No. 77 (1984). Accordingly, by finding the grievance arbitrable and resolving it on the merits, the award as to this grievance is deficient and is set aside. /1/ The second grievance arose when the Activity discontinued detailing the WG-8 grievant to a WG-10 position when filling that position on a temporary basis. The Union alleged that the Activity thereby violated the parties' collective bargaining agreement which requires with regard to details equitable rotation among employees who have been determined by management to have the capacity and requisite skills for assuming the responsibilities of the assignment. The Activity maintained that management had determined, based upon the grievant's performance when detailed to the position on a number of occasions, that he did not possess the capacity and requisite skills to fully perform the higher-graded duties. The Arbitrator essentially concluded that because the Activity had detailed the grievant to the WG-10 position on numerous occasions in the past, he possessed sufficient capacity and skill to warrant continued detail to the position. The Arbitrator therefore found that the Activity violated the parties' agreement when it refused to continue to detail the grievant to the higher-grade position and, as his award, directed the Activity to make the grievant whole for any loss of earnings he sustained as a consequence of the Activity's refusal to detail him to that position. In its exceptions to the Arbitrator's award as to this grievance, the Agency contends, among other things, 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 improperly deny the authority of an agency to exercise its statutory rights under 7106(a) of the Statute, or so as to 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). Section 7106(a)(2)(A) of the Statute reserves to management the right to assign employees and that right includes the discretion to determine the particular qualifications and skills needed to perform the duties of a position and to determine whether an employee possesses those qualifications and skills. E.g., Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration National Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982). In this case, management determined that the grievant lacked the requisite capacity and skills to perform the full range of duties required of the WG-10 position. Contrary to that determination the Arbitrator in effect concluded that because the Activity had previously detailed the grievant to the position, the grievant possessed sufficient capacity and skill to perform the higher-graded duties. Thus, the Arbitrator's award directing the Activity to continue detailing the grievant to the WG-10 position based upon such a contrary conclusion clearly results in the substitution of the Arbitrator's judgment for that of management in exercising its right to determine whether an employee possesses the qualifications and skills needed to perform the duties of a position. Consequently, the award as to this grievance is contrary to section 7106(a)(2)(A) of the Statute and is set aside. /2/ Issued, Washington, D.C., May 9, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is not necessary to address the Agency's other exceptions to the award concerning this grievance. /2/ In view of this decision, it is not necessary to address the Agency's other exceptions to the award concerning this grievance.