19:0039(3)AR - OPM and AFGE Local 32 -- 1985 FLRAdec AR
[ v19 p39 ]
The decision of the Authority follows:
19 FLRA No. 3 OFFICE OF PERSONNEL MANAGEMENT Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 Union Case No. O-AR-457 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Joseph M. Sharnoff 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 grievance in this case concerns the Agency's reassignment of the grievant from the position of claims examiner, GS-5, to the position of contact representative, GS-5. The parties submitted to arbitration the issue of whether the Agency fully met its obligation under Article 7, Section 13 to "assist employees in trying to improve unacceptable performance" before taking a reassignment action. The Arbitrator agreed with the Agency that the grievant had significant deficiencies in her ability to perform her work on a consistent basis with the requisite speed and accuracy. The Arbitrator also acknowledged that the grievant was counseled on her performance, that her work was reviewed with her in detail with her errors discussed and suggestions for improvement offered, and that remedial training was provided. The Arbitrator further noted that these actions proved insufficient because the grievant remained unable to consistently demonstrate proficiency. However, in view of the grievant having demonstrated some significant progress towards proficiency, the Arbitrator questioned whether there was other remedial training available for her and whether the Agency properly determined that the grievant was incapable of achieving satisfactory performance on a consistent basis without considering other types of remedial training. In these respects, the Arbitrator determined that further appropriate remedial training would not have been futile and that accordingly the Agency had not fulfilled its obligation to the grievant under Article 7, Section 13 of the agreement before it reassigned her. However, because there was no evidence as to what additional forms of appropriate remedial training may be available for the grievant to meet her particular needs consistent with Article 6 of the parties' collective bargaining agreement pertaining to training and career development; because there was no evidence on what training funds may be available to provide further remedial training; and because the parties apparently had not considered such matters, the Arbitrator as his award directed that the grievant be returned to the position of claims examiner, GS-5, and that the parties attempt to determine what other forms of training and necessary funds may be available to provide appropriate remedial training pursuant to the parties' agreement and what would be reasonable periods for the grievant to receive such training and to demonstrate adequate proficiency as a claims examiner, GS-5. In addition, the Arbitrator retained jurisdiction to resolve such matters if the parties were unable to reach agreement. In its first exception the Agency contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency maintains that the assignment of training during the duty time of employees constitutes an exercise of management's right to assign work under section 7106(a)(2)(B) and that consequently the award by directing that the parties attempt to determine what appropriate remedial training may be available for the grievant interferes with that right contrary to the Statute. In Department of Health and Human Services, Social Security Administration, Charlotte, North Carolina District and American Federation of Government Employees, Local 3509, AFL-CIO, 17 FLRA No. 21 (1985), the Authority acknowledged that it has uniformly held that the plain language of section 7106(a) provides that nothing in the Statute shall affect the authority of an agency to exercise the rights enumerated in that section and that therefore no arbitration award may interpret or enforce a provision of a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a) of the Statute. Id. at 2. However, the Authority further acknowledged that it has indicated that because the rights of management set forth in section 7106(a) are subject to section 7106(b)(2) and (3), /1/ an award that is claimed to interfere with rights under section 7106(a) that enforces an applicable procedure or appropriate arrangement which has been negotiated by the parties may not necessarily be contrary to section 7106(a). Id. Thus, in Internal Revenue Service, Austin District and National Treasury Employees Union, NTEU Chapter 52, 9 FLRA 672 (1982), the Authority determined that an award that simply enforced a properly negotiated appropriate arrangement under section 7106(b)(3) was not contrary to section 7106(a) of the Statute. In terms of this case, the Authority similarly finds that the award has simply enforced a properly negotiated appropriate arrangement under section 7106(b)(3) of the Statute. As noted, Article 7, Section 13 of the parties' agreement merely provides for management assistance for improvement of performance to employees adversely affected by the Agency's exercise of its authority under section 7106(a) to appraise the job performance of employees. The Authority concludes that this provision constitutes a properly negotiated appropriate arrangement because it attends to the immediate needs for remedial assistance and support for employees whom management has appraised as not adequately performing the duties of their position, while assuring management's right to assign employees for performance reasons after a reasonable opportunity to closely perform has been provided. Indeed, the provision is closely modeled on the statutory requirements of 5 U.S.C. 4302(b)(6). /2/ Furthermore, the Arbitrator's enforcement of this provision by simply directing the parties to attempt to determine consistent with the provisions of the parties' agreement pertaining to training and career development what appropriate remedial training may be available for the grievant has not been shown to improperly impinge on management prerogatives in the assignment of training during the duty time of employees under section 7106(a)(2)(B) of the Statute. For these reasons, this exception provides no basis for finding the award deficient. In its second exception the Agency contends that the award is contrary to section 7106(a)(1) of the Statute. Specifically, the Agency claims that the award is deficient as an interference with management's right to determine its budget because the Arbitrator has directed the Agency "to find the necessary funds" for the additional training of the grievant. The Authority finds that the Agency has misapprehended the Arbitrator's award and that therefore this exception provides no basis for finding the award deficient. Contrary to the claim of the Agency, the Arbitrator has only directed in his award that the parties "attempt to determine what . . . necessary funds are available to provide appropriate remedial training." Award at 18. Thus, rather than interfering with management's right to determine its budget, the award clearly observes extant budgetary limitations on available funding of training. Consequently, the Agency fails to establish that the award is contrary to section 7106(a)(1) of the Statute, as alleged. In its third exception the Agency contends that the award does not draw its essence from the collective bargaining agreement. Specifically, the Agency argues that the Arbitrator failed to properly construe the collective bargaining agreement. The Authority finds that this exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and provides no basis for finding the award deficient. See, e.g., Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA No. 108 (1983). In its fourth exception the Agency contends that the award is internally inconsistent and contradictory because the Arbitrator had no basis for ordering the Agency to consider additional training. The Authority finds that this exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and his reasoning and conclusions and provides no basis for finding the award deficient under the Statute. See, e.g., General Services Administration and American Federation of Government Employees, Council 236, 15 FLRA No. 69 (1984). In its fifth exception the Agency contends that the award is unclear in its meaning and effect and is too uncertain to be sustained. However, contrary to the claim of the Agency, the Authority finds that the Arbitrator clearly, precisely, and unambiguously directed the parties in accordance with his instructions and the parties' collective bargaining agreement to make certain determinations and proceed accordingly. Thus, this exception fails to provide a basis for finding the award deficient under the Statute. See, e.g., U.S. International Trade Commission, Washington, D.C. and American Federation of Government Employees, Local 2211, AFL-CIO, 13 FLRA 440 (1983). Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., July 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7106(b) of the Statute pertinently provides: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. /2/ Pursuant to section 4302(b)(6), an employee must first be given an opportunity to demonstrate acceptable performance of the duties of the employee's position before an agency may reassign, reduce-in-grade, or remove for unacceptable performance.