17:0963(129)AR - VA Medical Center, Togus, ME and AFGE Local 2610 -- 1985 FLRAdec AR

 17 FLRA No. 129
 
 THE VETERANS ADMINISTRATION 
 MEDICAL CENTER, TOGUS, MAINE 
 Activity
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2610, AFL-CIO
 Union
 
                                            Case No. 0-AR-646
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jerome S. Rubenstein filed by the Veterans Administration
 (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 dispute before the Arbitrator involved four separate grievances
 which were consolidated for consideration and resolution by the
 Arbitrator.  The Agency filed exceptions to the Arbitrator's award with
 respect to two of the grievances.  In the first of those grievances, the
 Union alleged that a temporary employee, who was employed for 104 hours
 as a WG-8 plumber, should have been paid at the WG-10 rate, the pay rate
 of permanent employees doing the same work.  The Arbitrator agreed,
 essentially finding that the Activity acted improperly by setting
 different rates of pay for the same work and hiring a temporary employee
 at a lower rate than permanent employees.  As his award, the Arbitrator
 ordered the Activity to pay the grievant the difference between the WG-8
 and WG-10 pay rates.
 
    In its exceptions to the Arbitrator's award as to this grievance, the
 Agency contends, among other things, that the award is contrary to
 section 7121(c)(5) of the Statute.  In support of this exception, the
 Agency essentially argues that the grievance directly concerned the
 classification of the grievant's position.
 
    The Authority finds that the award is contrary to section 7121(c)(5)
 of the Statute as alleged.  It is clear that the substance of the
 grievance before the Arbitrator was whether the duties performed by the
 grievant should have been compensated at the pay rate for the
 higher-grade level.  Therefore, because of this direct "interconnection"
 between the grievance and the classification of the grievant's position
 and because of the reclassification effect of the award, the grievance
 and the award concern the classification of a position within the
 meaning of section 7121(c)(5) which precludes such matters from
 grievance and arbitration.  E.g., Overseas Education Association and
 Department of Defense Dependents Schools, 15 FLRA No. 77 (1984).
 Accordingly, by finding the grievance arbitrable and resolving it on the
 merits, the award as to this grievance is deficient and is set aside.
 /1/
 
    The second grievance arose when the Activity discontinued detailing
 the WG-8 grievant to a WG-10 position when filling that position on a
 temporary basis.  The Union alleged that the Activity thereby violated
 the parties' collective bargaining agreement which requires with regard
 to details equitable rotation among employees who have been determined
 by management to have the capacity and requisite skills for assuming the
 responsibilities of the assignment.  The Activity maintained that
 management had determined, based upon the grievant's performance when
 detailed to the position on a number of occasions, that he did not
 possess the capacity and requisite skills to fully perform the
 higher-graded duties.  The Arbitrator essentially concluded that because
 the Activity had detailed the grievant to the WG-10 position on numerous
 occasions in the past, he possessed sufficient capacity and skill to
 warrant continued detail to the position.  The Arbitrator therefore
 found that the Activity violated the parties' agreement when it refused
 to continue to detail the grievant to the higher-grade position and, as
 his award, directed the Activity to make the grievant whole for any loss
 of earnings he sustained as a consequence of the Activity's refusal to
 detail him to that position.
 
    In its exceptions to the Arbitrator's award as to this grievance, the
 Agency contends, among other things, that the award is contrary to
 section 7106(a) of the Statute.  The Authority agrees.
 
    It is well-established 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 statutory
 rights under 7106(a) of the Statute, or so as to result in the
 substitution of the arbitrator's judgment for that of the agency in the
 exercise of those rights.  E.g., Veterans Administration Hospital,
 Lebanon, Pennsylvania and American Federation of Government Employees,
 AFL-CIO, Local 1966, 11 FLRA 193 (1983).  Section 7106(a)(2)(A) of the
 Statute reserves to management the right to assign employees and that
 right includes the discretion to determine the particular qualifications
 and skills needed to perform the duties of a position and to determine
 whether an employee possesses those qualifications and skills.  E.g.,
 Laborers International Union of North America, AFL-CIO, Local 1276 and
 Veterans Administration National Cemetery Office, San Francisco,
 California, 9 FLRA 703, 706 (1982).
 
    In this case, management determined that the grievant lacked the
 requisite capacity and skills to perform the full range of duties
 required of the WG-10 position.  Contrary to that determination the
 Arbitrator in effect concluded that because the Activity had previously
 detailed the grievant to the position, the grievant possessed sufficient
 capacity and skill to perform the higher-graded duties.  Thus, the
 Arbitrator's award directing the Activity to continue detailing the
 grievant to the WG-10 position based upon such a contrary conclusion
 clearly results in the substitution of the Arbitrator's judgment for
 that of management in exercising its right to determine whether an
 employee possesses the qualifications and skills needed to perform the
 duties of a position.  Consequently, the award as to this grievance is
 contrary to section 7106(a)(2)(A) of the Statute and is set aside.  /2/
 Issued, Washington, D.C., May 9, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In view of this decision, it is not necessary to address the
 Agency's other exceptions to the award concerning this grievance.
 
 
    /2/ In view of this decision, it is not necessary to address the
 Agency's other exceptions to the award concerning this grievance.