U.S. Department of Health and Human Services, Health Care Financing Administration (Agency) and American Federation of Government Employees, Local 1923 (Union)

[ v57 p462 ]

57 FLRA No. 86







September 20, 2001


Before the Authority: Dale Cabaniss, Chairman;
Carol Waller Pope and Tony Armendariz, Members

Decision by Member Pope for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Stephen E. Alpern filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator concluded that the parties' collective bargaining agreement permits the Agency to have only one representative at Step 1 grievance presentations, unless the Union consents to the presence of additional representatives. [n1]  For the reasons set forth below, we conclude that the award is deficient under § 7106(a)(2)(B) of the Statute. Accordingly, we vacate the award.

II.     Background and Arbitrator's Award

      For several years, the parties adhered to a practice of having only one Agency representative present at Step 1 grievance presentations. However, after adopting a new collective bargaining agreement in 1998, additional Agency representatives began attending grievance presentations, usually over the objection of the Union. A grievance was filed that, when not resolved, was submitted to arbitration, where the Arbitrator considered the following issue: "Whether attendance by the Agency's Human Resources personnel at oral grievance presentations, over the objection of [the] Union, violates the Master Labor Agreement." Award at 2.

      The Arbitrator concluded that attendance by Agency representatives at Step 1 grievance presentations, over the objection of the Union, violates Article 24, § 5 (hereinafter, § 5) of the parties' agreement. [n2]  The Arbitrator based this conclusion on the wording of various provisions in the grievance procedure as well as the parties' past practice. Accordingly, the Arbitrator granted the grievance in part, finding that "[t]he Agency may not have additional representatives present in Step 1 grievance presentations without the agreement of the Union." Id. at 19.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the award violates management's rights to assign employees and work under § 7106(a)(2) of the Statute because it prevents the Agency from assigning an employee to the position of Agency representative and from assigning the duty of representing a manager during oral presentations. In this connection, the Agency asserts that § 5 was "not negotiated under the auspices of § 7106(b) of the Statute." Exceptions at 8. The Agency also asserts that the award violates § 7121(b)(1)(A) of the Statute because it is not fair to the Agency. [n3]  Finally, the Agency claims that the award fails to draw its essence from the parties' agreement.

B.     Union's Opposition

      In its opposition, the Union argues only that the Arbitrator interpreted the parties' agreement, and that the Agency is attempting to re-litigate the issue. [ v57 p463 ]

IV.     Analysis and Conclusions

A.     Standard of Review

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See DOD, Dep'ts of the Army and Air Force, 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      When resolving an exception that alleges an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If it does, then the Authority will apply the framework established in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See id. Under prong I of the BEP framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id.

B.     The Award is Contrary to Management's Right to Assign Work

      The right to assign work under § 7106(a)(2)(B) of the Statute, with respect to unit employees and supervisors, encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., AFGE, Local 3529, 56 FLRA 1049, 1050 (2001). The Arbitrator found that under § 5 of the