23:0017(4)AR - AFGE Local 1509, Sioux Falls South Dakota Veterans Hospital and VA Hospital, Sioux Falls, SD -- 1986 FLRAdec AR



[ v23 p17 ]
23:0017(4)AR
The decision of the Authority follows:


 23 FLRA No. 4
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1509, SIOUX FALLS
 SOUTH DAKOTA VETERANS HOSPITAL
 Union
 
 and
 
 U.S. VETERANS ADMINISTRATION HOSPITAL
 SIOUX FALLS, SOUTH DAKOTA
 Activity
 
                                            Case No. 0-AR-1052
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This amtter is before the Authority on exceptions to the award of
 Arbitrator Martin E. Conway 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed when the grievant's overall annual performance
 rating by his immediate supervisor was lowered from "outstanding" to
 "highly satisfactory" by the reviewing official.  The grievance was
 submitted to arbitration on the issue of whether the reviewing
 official's action violated provisions of the collective bargaining
 agreement.  The Arbitrator determined that the reduction of the rating
 by the reviewing official was inconsistent with the agreement.
 Primarily, he ruled that under the agreement it is not appropriate for
 someone who does not have daily knowledge of an employee's performance
 rating by the employee's immediate supervisor.  He also found under the
 agreement that the reduction of the grievant's rating was not timely and
 properly communicated to him.  Accordingly the Arbitrator sustained the
 grievance and ordered that the grievant's "outstanding" rating be
 reinstated and that the grievant be considered for a monetary award.
 
                             III.  EXCEPTIONS
 
    In its exception the Agency contends that the award is contrary to
 law and regulation.  In particular, the Agency contends that the award
 is contrary to section 7106(a)(2)(B) of the Statute because it
 interferes with management's right to assign performance appraisal
 review duties to the reviewing official and substitutes the Arbitrator's
 judgment for that of the Agency as to who has the authority to review
 and change performance appraisals.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with the Agency.  In Department of Health and Human
 Services, Social Security Administration, Kansas City, Missouri and
 National Treasury Employees Union, 17 FLRA 561 (1985), the arbitrator
 had interpreted the parties' collective bargaining agreement so as to
 preclude the performance appraisal reviewing official, an individual not
 in the bargaining unit, from lowering the performance appraisals of the
 grievants.  In finding the award deficient, the Authority noted that
 bargaining proposals which prescribe duties to be performed by
 particular nonbargaining-unit personnel in the agency improperly
 interefere with management's right to assign work under section
 7106(a)(2)(B) of the Statute.  We also stated 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 rights under section 7106(a) of the Statute or result in
 the substitution of the arbitrator's judgment for that of the agency in
 the exercise of those rights.  Accordingly, the Authority ruled that the
 award was contrary to management's right under section 7106(a)(2)(B) to
 assign performance appraisal review duties to the reviewing official
 because it eliminated the discretion inherent in that right and because
 the arbitrator substituted his judgment for that of the agency in the
 exercise of the right.  17 FLRA at 562.
 
    In this case, similar to SSA, Kansas City, we find that the
 Arbitrator has interpreted the parties' agreement to preclude the
 reviewing official, an individual not in the bargaining unit, from
 carrying out the assigned duty of reviewing performance appraisals and
 so as to deprive him of the discretion to change appraisals inher