09:0374(43)AR - HHS, SSA, Philadelphia (West) District, Upper Darby, PA and AFGE Local 2327 -- 1982 FLRAdec AR

 9 FLRA No. 43
 
 DEPARTMENT OF HEALTH
 AND HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION,
 PHILADELPHIA (WEST) DISTRICT,
 UPPER DARBY, PENNSYLVANIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2327
 Union
 
                                            Case No. 0-AR-299
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HAROLD D. JONES, JR. FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE
 UNION FILED AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNED THE IMPLEMENTATION OF A QUALITY
 REVIEW PLAN AND THE IMPACT OF THE PLAN ON THE GRIEVANT.  THE PARTIES
 WERE UNABLE TO AGREE ON THE SPECIFIC ISSUE TO BE DECIDED, BUT DID AGREE
 THAT THE ARBITRATOR SHOULD DECIDE THE FOLLOWING GENERAL ISSUE:
 
    WHAT DISPOSITION SHOULD BE MADE OF THE GRIEVANCE FILED BY (THE
 GRIEVANT) ON JULY 21, 1980?
 
    THE ARBITRATOR FIRST DETERMINED THAT THE ACTIVITY VIOLATED THE
 AGREEMENT WHEN IT ASSIGNED CLAIMS REPRESENTATIVES TO WORK AS QUALITY
 REVIEWERS RESPONSIBLE FOR REVIEWING THE WORK PRODUCT OF DATA REVIEW
 TECHNICIANS AND OTHER CLAIMS REPRESENTATIVES.  ESSENTIALLY, THE
 ARBITRATOR FOUND THAT THE ASSIGNMENT TO CLAIMS REPRESENTATIVES OF SUCH
 DUTIES WAS OUTSIDE THEIR POSITION DESCRIPTIONS AND WAS THEREFORE
 CONTRARY TO THE AGREEMENT PROVISION WHICH HE STATED "PROVIDES AN
 EMPLOYEE WITH THE RIGHT TO HAVE THE WORK PERFORMED BY THE EMPLOYEE
 PROPERLY CLASSIFIED." THE ARBITRATOR FOUND THAT "THE WORK OF A QUALITY
 REVIEWER INVOLVES DUTIES WHICH ARE NOT AMONG THE OFFICIAL DUTIES DEFINED
 IN THE POSITION DESCRIPTION FOR THE POSITION OF CLAIMS REPRESENTATIVE."
 
    THE ARBITRATOR NEXT FOUND THAT THE ACTIVITY VIOLATED THE AGREEMENT
 WHEN IT FAILED TO SELECT CLAIMS REPRESENTATIVES TO WORK AS QUALITY
 REVIEWERS ON THE BASIS OF SENIORITY.  THE ARBITRATOR NOTED THAT THE
 AGREEMENT ALLOWED THE ACTIVITY TO SELECT "QUALIFIED" EMPLOYEES TO BE
 DETAILED FROM ONE POSITION TO ANOTHER, BUT THE ARBITRATOR DISTINGUISHED
 THE PRESENT CASE BECAUSE THE ACTIVITY "IS NOT DETAILING CLAIMS
 REPRESENTATIVES FROM THE POSITION OF CLAIMS REPRESENTATIVE TO ANOTHER
 POSITION."
 
    FINALLY, THE ARBITRATOR DETERMINED THAT THE PARTIES HAD AGREED UPON
 AN INTERPRETATION OF THE NEGOTIATED AGREEMENT WHICH PROHIBITED THE
 PLACING OF THE RESULTS OF QUALITY REVIEWS PERFORMED BY CLAIMS
 REPRESENTATIVES IN THE EMPLOYEE RECORD (SF 7-B) EXTENSION FILES, A
 FORMAL FILE OF PERSONNEL DATA.  ACCORDINGLY, THE ARBITRATOR MADE THE
 FOLLOWING AWARD:
 
    IT IS THE AWARD OF THE ARBITRATOR THAT THE DISPOSITION WHICH SHOULD
 BE MADE OF THE
 
    GRIEVANCE FILED BY (THE GRIEVANT) ON JULY 21, 1980 IS THAT THIS
 GRIEVANCE IS GRANTED IN PART
 
    BY DIRECTING THAT THE EMPLOYER DISCONTINUE THE ASSIGNING OF EMPLOYEES
 IN THE POSITION OF
 
    CLAIMS REPRESENTATIVE TO WORK AS QUALITY REVIEWERS RESPONSIBLE FOR
 THE QUALITY REVIEW OF THE
 
    WORK PRODUCT OF CLAIMS REPRESENTATIVES AND DATA REVIEW TECHNICIANS,
 THE SELECTING OF EMPLOYEES
 
    IN THE POSITION OF CLAIMS REPRESENTATIVES TO WORK AS QUALITY
 REVIEWERS ON A BASIS WHICH DOES
 
    NOT PROVIDE FOR THE CLAIMS REPRESENTATIVE WITH "THE LEAST CURRENT
 CONTINUOUS SERVICE" TO BE
 
    SELECTED WHEN NO CLAIMS REPRESENTATIVE VOLUNTEERS, AND THE PLACING OF
 THE RESULTS OF THE
 
    QUALITY REVIEW OF THE WORK OF CLAIMS REPRESENTATIVES AND DATA REVIEW
 TECHNICIANS BY QUALITY
 
    REVIEWERS IN THE SF 7B EXTENSION FILES OF CLAIMS REPRESENTATIVES AND
 DATA REVIEW TECHNICIANS.
 
    AS ONE OF ITS EXCEPTIONS THE AGENCY ALLEGES THE AWARD IS DEFICIENT
 BECAUSE IT CONTRAVENES SECTION 7106(A) OF THE STATUTE BY INTERFERING
 WITH MANAGEMENT'S RIGHT TO ASSIGN EMPLOYEES.  AS TO THOSE PORTIONS OF
 THE AWARD WHICH DIRECT THE ACTIVITY TO DISCONTINUE ASSIGNING CLAIMS
 REPRESENTATIVES AS QUALITY REVIEWERS AND TO SELECT EMPLOYEES FOR CERTAIN
 ASSIGNMENTS ON THE BASIS OF SENIORITY, THE AUTHORITY AGREES.  IT IS WELL
 ESTABLISHED UNDER THE STATUTE THAT AN ARBITRATOR MAY NOT INTERPRET OR
 ENFORCE A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT SO AS TO DENY
 AN AGENCY THE AUTHORITY TO EXERCISE ITS RIGHTS UNDER SECTION 7106 AND
 THAT THOSE RIGHTS MAY NOT BE INFRINGED UPON, WAIVED, OR RELINQUISHED
 THROUGH THE AWARD OF AN ARBITRATOR.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1712 AND UNITED STATES ARMY, 172ND INFANTRY BRIGADE
 (ALASKA), 6 FLRA NO. 85(1981).  IT IS EQUALLY WELL ESTABLISHED THAT
 MANAGEMENT HAS THE RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)
 AND THAT THIS RIGHT INCLUDES THE DISCRETION TO DETERMINE WHICH EMPLOYEE
 WILL BE ASSIGNED.  THUS, A PROPOSAL WHICH WOULD REQUIRE THE ASSIGNMENT
 OF EMPLOYEES BASED ON SENIORITY HAS BEEN HELD TO BE NOT WITHIN THE DUTY
 TO BARGAIN BECAUSE SUCH A PROPOSAL WOULD PREVENT THE AGENCY FROM
 CHOOSING WHICH EMPLOYEE WOULD BE ASSIGNED.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE,
 OKLAHOMA, 7 FLRA NO. 45 AT 6(1981);  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 2 FLRA 603, 612-13 ENFORCED SUB NOM. DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR.
 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S., 102 S. CT. 1443(1982).
 IN THE INSTANT CASE THE ARBITRATOR HAS SPECIFICALLY DIRECTED THE
 ACTIVITY NOT TO ASSIGN CLAIMS REPRESENTATIVES TO WORK AS QUALITY
 REVIEWERS AND, FURTHER, HAS DIRECTED THE ACTIVITY NOT TO SELECT CLAIMS
 REPRESENTATIVES FOR ASSIGNMENT AS QUALITY REVIEWERS UNLESS SUCH
 SELECTION IS MADE ON THE BASIS OF SENIORITY.  THESE TWO PORTIONS OF THE
 AWARD DIRECTLY INTERFERE WITH THE ACTIVITY'S RIGHT TO ASSIGN EMPLOYEES
 AND TO DETERMINE WHICH EMPLOYEES WILL BE ASSIGNED AND, CONSEQUENTLY, ARE
 CONTRARY TO SECTION 7106(A)(2)(A) OF THE STATUTE.
 
    THE THIRD PORTION OF THE AWARD DIRECTS THE ACTIVITY TO DISCONTINUE
 PLACING THE RESULTS OF QUALITY REVIEWS IN SF 7-B EXTENSION FILES.  THE
 ARBITRATOR BASES THIS PART OF THE AWARD ON HIS FINDING THAT THE PARTIES
 AGREED IN THEIR COLLECTIVE BARGAINING AGREEMENT THAT THIS WOULD NOT BE
 DONE.
 
    THE AGENCY CONTENDS IN GENERAL TERMS THAT THIS PORTION OF THE AWARD
 IS CONTRARY TO SECTION 7106(A) OF THE STATUTE AND THAT IT IS DEFICIENT
 BECAUSE THE ARBITRATOR EXCEEDED HIS AUTHORITY.  /1/ HOWEVER, IN ITS
 EXCEPTIONS THE AGENCY HAS NOT DEMONSTRATED IN WHAT MANNER THIS PORTION
 OF THE AWARD IS CONTRARY TO SECTION 7106(A) OF THE STATUTE OR HOW, BY
 ARRIVING AT IT, THE ARBITRATOR EXCEEDED HIS AUTHORITY.  INSTEAD, THE
 AGENCY IS DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION OF THE
 AGREEMENT AS IT PERTAINS TO THE THIRD PORTION OF HIS AWARD, WHICH DOES
 NOT PROVIDE A BASIS FOR FINDING THIS PORTION DEFICIENT.  E.G., AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO) LOCAL 1770 AND HEADQUARTERS
 XVIII AIRBORNE CORPS AND FORT BRAGG, FORT BRAGG, N.C., 6 FLRA NO.
 62(1981).
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS MODIFIED TO
 READ AS FOLLOWS:
 
    IT IS THE AWARD OF THE ARBITRATOR THAT THE DISPOSITION WHICH SHOULD
 BE MADE OF THE
 
    GRIEVANCE FILED BY (THE GRIEVANT) ON JULY 21, 1980 IS THAT THIS
 GRIEVANCE IS GRANTED IN PART
 
    BY DIRECTING THAT THE EMPLOYER DISCONTINUE THE PLACING OF THE RESULTS
 OF THE QUALITY REVIEW OF
 
    THE WORK OF CLAIMS REPRESENTATIVES AND DATA REVIEW TECHNICIANS BY
 QUALITY REVIEWERS IN THE SF
 
    7B EXTENSION FILES OF CLAIMS REPRESENTATIVES AND DATA REVIEW
 TECHNICIANS.
 
    ISSUED, WASHINGTON, D.C., JULY 2, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AGENCY'S EXCEPTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
 WAS ALSO DIRECTED TO THE FIRST TWO PORTIONS OF THE ARBITRATOR'S AWARD.
 HOWEVER, IN LIGHT OF THE AUTHORITY'S DECISION HEREIN IT IS NOT NECESSARY
 TO ADDRESS THIS EXCEPTION AS IT PERTAINS TO THOSE PORTIONS OF THE AWARD.