19:0039(3)AR - OPM and AFGE Local 32 -- 1985 FLRAdec AR



[ v19 p39 ]
19:0039(3)AR
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. a