15:0781(147)AR - AFGE Local 1917 and INS -- 1984 FLRAdec AR

 15 FLRA No. 147
 
 THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1917
 Union
 
 and
 
 UNITED STATES IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
                                            Case No. O-AR-451
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Leonard Irsay 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.  /1/
 
    The dispute in this matter concerns the Agency's establishment of
 numerical performance standards for rating the work performance of
 criminal investigators in a certain job element and the Agency's
 identification of another job element as critical.  A grievance was
 filed and submitted to arbitration challenging these actions of the
 Agency.  The issues before the Arbitrator were whether the grievance was
 arbitrable and whether the Agency's disputed actions were in accordance
 with law and regulation.  The Arbitrator first determined that the
 grievance was arbitrable.  On the merits the Arbitrator denied the
 grievance as to the establishment of numerical standards.  As to the
 designation of the disputed job element as critical, the Arbitrator
 sustained the grievance and ordered the element designated as
 noncritical.
 
    In one of its exceptions the Agency contends that by finding the
 grievance arbitrable, the award is contrary to section 7106(a)(2)(A) and
 (B) of the Statute.  The Authority agrees.
 
    The Authority has specifically held that coverage by a negotiated
 grievance procedure of a grievance challenging an agency's establishment
 of performance standards and identification of the critical elements of
 a position is precluded by management's rights to direct employees and
 to assign work under section 7106(a)(2)(A) and (B) of the Statute.
 American Federation of Government Employees, AFL-CIO, Local 1968 and
 Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70, 79-80 (1981), aff'd sub nom.
 AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982);  accord American
 Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
 Missile Command, Redstone Arsenal, Alabama, 7 FLRA 794, 797 (1982).  In
 terms of this case, it is clear that the grievance directly challenges
 the Agency's exercise of its authority to establish performance
 standards and to identify the critical elements of a position.
 Consequently, the Authority concludes that the award, by finding the
 grievance arbitrable and resolving the grievance on the merits, is
 deficient in its entirety as contrary to section 7106(a)(2)(A) and (B)
 of the Statute.  Accordingly, the award is set aside.  /2/
 
    Issued, Washington, D.C., August 29, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management (OPM) filed a brief as an
 amicus curiae.  The Union filed oppositions to both the Agency's
 exceptions and OPM's amicus curiae brief.  In its opposition to the
 Agency's exceptions, which were filed by the Department of Justice, the
 Union claims that the exceptions should be dismissed because the
 Department of Justice is not a party entitled to file exceptions.
 However, the Authority finds that the exceptions have been properly
 filed by the Agency on behalf of one of its organizational elements.
 United States Department of Justice, Immigration and Naturalization
 Service and American Federation of Government Employees, Local 1917, 14
 FLRA No. 86 (1984).
 
 
    /2/ In view of this decision, it is not necessary to address the
 Agency's other exceptions to the award.