23:0137(15)AR - Congressional Research Employees Association and The Library of Congress -- 1986 FLRAdec AR

[ v23 p137 ]
The decision of the Authority follows:

 23 FLRA No. 15
                                            Case No. 0-AR-624
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jacob Seidenberg 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.
    A grievance was filed and submitted to arbitration challenging the
 Agency's determination to contract out certain functions as violative of
 Article XVI /1/ of the parties' collective bargaining agreement.  The
 Arbitrator as his award found that the grievance was arbitrable, but
 denied the grievance on the merits.
                             III.  Exceptions
    In its exceptions, the Agency contends that the award is contrary to
 law and regulation in several respects.  In particular, the Agency
 contends that by finding the grievance to be arbitrable, the award is
 contrary to the Agency's right under section 7106(a)(2)(B) of the
 Statute to make determinations with respect to contracting out.
                       IV.  ANALYSIS AND CONCLUSIONS
    The Authority concludes that the award is deficient under the
 Statute.  The plain language of section 7106 of the Statute provides
 that "nothing" in the Statute shall "affect the authority" of an agency
 to exercise the rights enumerated in that section.  Thus, the Authority
 has expressly held that a matter cannot be grieved which would deny the
 authority of an agency to exercise its statutory rights under section
 7106.  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), aff'd sub nom.
 AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied,
 461 U.S. 926 (1983).  Specifically, the Authority has held that
 proposals which would, as their sole effect, subject management's
 determinations concerning the identification of critical elements of a
 position and the content of performance standards to the grievance
 procedure and arbitral review constituted improper interference with
 management's rights.  Saint Lawrence Seaway Development Corporation,
 (Proposal 4).  In so holding, the Authority has noted that subjecting
 managerial evaluations concerning critical elements and performance
 standards to arbitral review would require an arbitrator to substitute
 his or her judgment as to how the agency should be run for that of
 management.  National Treasury Employees Union and Department of Health
 and Human Services, Region 10, 13 FLRA 732, 734 (1982), aff'd sub nom.
 NTEU v. FLRA, 767 F2d 1315 (9th Cir. 1985).  Thus, the Authority has
 found that an arbitrator cannot determine that a grievance directly
 challenging an agency's identification of job elements or establishment
 of performance standards is grievable and arbitrable.  Bureau of
 Prisons, Department of Justice and American Federation of Government
 Employees, Local 148, 21 FLRA No. 15 (1986);  Bureau of Engraving and
 Printing, U.S. Department of the Treasury and Washington Plate Printers
 Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985).  The
 Authority has also found an arbitration award deficient which enforced a
 collective bargaining agreement provision that imposed a substantive
 limitation on management's right to identify critical elements.  The
 Authority concluded that by imposing such a limitation, the agreement
 provision prompted the interference by grievance and arbitration with
 management's rights because the provision provided the basis for the
 arbitrator's review of management's identification of an element as
 critical and permitted the substitution of judgment by