AFGE Local 1509, Sioux Falls Veterans Hospital and Veterans Administration Hospital, Sioux Falls (Authority decision, August 11, 1986)

Final FLRA decision. The Authority sets aside the arbitration award. The order concerns an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable unless the order involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A reviewing official lowered a hospital employee's annual performance rating from outstanding to highly satisfactory. An arbitrator ordered the outstanding rating restored, finding that the reviewing official lacked daily knowledge of the employee's work and had not communicated the change properly. The Authority held that the award improperly prevented the reviewing official from carrying out assigned appraisal duties and exercising judgment. It set aside the arbitration award under management's right to assign work.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7122(a).
• Outcome: Arbitration award restoring the outstanding rating set aside.
• Key point: An arbitrator may not use an agreement to remove management discretion from an assigned appraisal review duty.

Full text (FLRA public release)

[ v23 p17 ]

23:0017(4)AR

The decision of the Authority follows:

23 FLRA No. 4

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1509, SIOUX FALLS
SOUTH DAKOTA VETERANS HOSPITAL
Union

and

U.S. VETERANS ADMINISTRATION HOSPITAL
SIOUX FALLS, SOUTH DAKOTA
Activity

Case No. 0-AR-1052

DECISION

I. STATEMENT OF THE CASE

This amtter is before the Authority on exceptions to the award of Arbitrator Martin E. Conway 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.

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed when the grievant's overall annual performance rating by his immediate supervisor was lowered from "outstanding" to "highly satisfactory" by the reviewing official. The grievance was submitted to arbitration on the issue of whether the reviewing official's action violated provisions of the collective bargaining agreement. The Arbitrator determined that the reduction of the rating by the reviewing official was inconsistent with the agreement. Primarily, he ruled that under the agreement it is not appropriate for someone who does not have daily knowledge of an employee's performance rating by the employee's immediate supervisor. He also found under the agreement that the reduction of the grievant's rating was not timely and properly communicated to him. Accordingly the Arbitrator sustained the grievance and ordered that the grievant's "outstanding" rating be reinstated and that the grievant be considered for a monetary award.

III. EXCEPTIONS

In its exception the Agency contends that the award is contrary to law and regulation. In particular, the Agency contends that the award is contrary to section 7106(a)(2)(B) of the Statute because it interferes with management's right to assign performance appraisal review duties to the reviewing official and substitutes the Arbitrator's judgment for that of the Agency as to who has the authority to review and change performance appraisals.

IV. ANALYSIS AND CONCLUSIONS

We agree with the Agency. In Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and National Treasury Employees Union, 17 FLRA 561 (1985), the arbitrator had interpreted the parties' collective bargaining agreement so as to preclude the performance appraisal reviewing official, an individual not in the bargaining unit, from lowering the performance appraisals of the grievants. In finding the award deficient, the Authority noted that bargaining proposals which prescribe duties to be performed by particular nonbargaining-unit personnel in the agency improperly interefere with management's right to assign work under section 7106(a)(2)(B) of the Statute. We also stated 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 rights under section 7106(a) of the Statute or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Accordingly, the Authority ruled that the award was contrary to management's right under section 7106(a)(2)(B) to assign performance appraisal review duties to the reviewing official because it eliminated the discretion inherent in that right and because the arbitrator substituted his judgment for that of the agency in the exercise of the right. 17 FLRA at 562.

In this case, similar to SSA, Kansas City, we find that the Arbitrator has interpreted the parties' agreement to preclude the reviewing official, an individual not in the bargaining unit, from carrying out the assigned duty of reviewing performance appraisals and so as to deprive him of the discretion to change appraisals inherent in that duty. Thus, for the reasons set forth in greater detail in SSA, Kansas City, we conclude that the award improperly interferes with management's right to assign work and is deficient as contrary to section 7106(a)(2)(B) of the Statute.

V. DECISION

Accordingly, the Arbitrator's award is set aside. /1/

Issued, Washington, D.C., August 11, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) In view of this decision, it is not necessary to address the other contentions of the Agency in its exceptions to the award.