American Federation of Government Employees, Local 41 and Department of Health and Human Services, Office of the Secretary (Authority decision, February 10, 1982)

Final FLRA decision. The Authority modified an arbitration award's remedy to require a current and accurate position description, while leaving the finding of a contract violation in place. An Authority order under 5 U.S.C. § 7122 concerning an arbitration award is excluded from judicial review by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice; this order does not identify one.

Plain-English summary

An HHS employee grieved the agency's failure to process a revised position description prepared after a desk audit. The arbitrator found that HHS violated the collective bargaining agreement and ordered it to forward the September 1979 description to the personnel office. HHS argued that the description might no longer reflect the employee's duties and could conflict with federal personnel rules. The Authority agreed that sending an outdated description would be improper. It changed the remedy to require HHS to prepare and forward a current and accurate description. The rest of the award remained in place, and no monetary penalty was ordered.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); Federal Personnel Manual chapter 511, subchapter 4.
• Outcome: Arbitration remedy modified to require a current, accurate position description.
• Key point: An agency could not be ordered to process a position description that might no longer reflect the employee's duties.

Full text (FLRA public release)

[ v08 p98 ]

08:0098(18)AR

The decision of the Authority follows:

8 FLRA No. 18

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 41
Union

and

DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
OFFICE OF THE SECRETARY,
HEADQUARTERS
Activity

Case No. 0-AR-150

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR HERBERT FISHGOLD FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.7122(A))
(THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR PART 2425). THE UNION FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE ACTIVITY
FAILED TO PROCESS A REVISED POSITION DESCRIPTION INTENDED TO CORRECT
CERTAIN DEFICIENCIES FOUND DURING A DESK AUDIT OF THE GRIEVANT'S
POSITION. FOLLOWING THE DESK AUDIT, THE GRIEVANT AND HER GRIEVANT'S
POSITION. FOLLOWING THE DESK AUDIT, THE GRIEVANT AND HER SUPERVISOR
PREPARED A REVISED POSITION DESCRIPTION AND SENT IT TO THE ASSISTANT
SECRETARY IN SEPTEMBER 1979 FOR APPROVAL AND FORWARDING TO THE PERSONNEL
OFFICE. HOWEVER, THE ASSISTANT SECRETARY'S OFFICE DECLINED TO PROCESS
THE POSITION DESCRIPTION. THE GRIEVANT FILED A GRIEVANCE ALLEGING THE
ACTIVITY VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY FAILING TO
PROVIDE HER WITH AN ACCURATE POSITION DESCRIPTION. WHILE THE GRIEVANCE
WAS PENDING, THE ACTIVITY PREPARED ANOTHER POSITION DESCRIPTION FOR THE
GRIEVANT FOLLOWING A SECOND DESK AUDIT. THE GRIEVANT REFUSED TO
PARTICIPATE IN THIS DESK AUDIT AND IN THE PREPARATION OF THE NEW
POSITION DESCRIPTION. INSTEAD, SHE CONTINUED TO PURSUE HER GRIEVANCE
WHICH ESSENTIALLY SOUGHT TO HAVE THE SEPTEMBER 1979 POSITION DESCRIPTION
SENT FORWARD. THE ARBITRATOR FOUND THAT THE ACTIVITY VIOLATED THE
AGREEMENT BY FAILING TO PROVIDE THE GRIEVANT WITH AN ACCURATE POSITION
DESCRIPTION AND MADE THE FOLLOWING AWARD:

THE GRIEVANCE IS SUSTAINED TO THE EXTENT INDICATED ABOVE. THE AGENCY
IS FOUND TO HAVE

VIOLATED THE AGREEMENT BY FAILING TO AFFORD THE OPPORTUNITY FOR A
CONFERENCE PRIOR TO ISSUING

THE THIRD STEP ANSWER, AND BY FAILING TO TRANSMIT THE AGREED-TO
POSITION DESCRIPTION TO ITS

DIVISION OF PERSONNEL TO PERMIT THAT DIVISION TO COMPLETE ITS REVIEW
OF THE POSITION. THE

AGENCY IS THEREFORE DIRECTED TO TAKE NOW THE ACTION IT IMPROPERLY
FAILED TO TAKE IN SEPTEMBER

1979, NAMELY THE FORWARDING TO THE DIVISION OF PERSONNEL OF THE
AGREED-TO JOB DESCRIPTION IN A

FORMAT ACCEPTABLE TO THE DIVISION.

AS ONE OF ITS EXCEPTIONS, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
CHAPTER 511, SUBCHAPTER 4 OF THE FEDERAL PERSONNEL MANUAL (FPM) WHICH
REQUIRES POSITION DESCRIPTIONS TO ACCURATELY REFLECT DUTIES PERFORMED
AND TO BE SO CERTIFIED. THE AGENCY MAINTAINS THAT THE ARBITRATOR'S
DIRECTION TO FORWARD THE SEPTEMBER 1979 POSITION DESCRIPTION TO THE
PERSONNEL OFFICE WOULD VIOLATE THESE FPM PROVISIONS BECAUSE THE LIST OF
DUTIES CONTAINED IN THAT DESCRIPTION IS NO LONGER ACCURATE.

IT IS EVIDENT FROM THE RECORD THAT THE SEPTEMBER 1979 POSITION
DESCRIPTION MAY NO LONGER BE AN ACCURATE REFLECTION OF THE GRIEVANT'S
CURRENT DUTIES. CONSEQUENTLY, IT WOULD BE CONTRARY TO THE FPM TO ORDER
ITS CERTIFICATION. THEREFORE, THE AUTHORITY FINDS THAT THE AWARD IS
DEFICIENT IN DIRECTING THE ACTIVITY TO PROCESS THE SEPTEMBER 1979
POSITION DESCRIPTION AND THAT ACCORDINGLY IT MUST BE MODIFIED BY
STRIKING THE LAST SENTENCE AND SUBSTITUTING THE FOLLOWING SENTENCE: /1/

THE AGENCY IS THEREFORE DIRECTED TO NOW PREPARE AND FORWARD TO THE
DIVISION OF PERSONNEL A

CURRENT AND ACCURATE POSITION DESCRIPTION IN A FORMAT ACCEPTABLE TO
THE DIVISION

ISSUED, WASHINGTON, D.C, FEBRUARY 10, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE AGENCY ALSO CONTENDS THAT THE AWARD DIRECTING THAT THE
SEPTEMBER 1979 POSITION DESCRIPTION BE SENT FORWARD, VIOLATES SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE. HOWEVER, THERE IS NO BASIS FOR
FINDING THAT THE AWARD, AS MODIFIED TO DIRECT ONLY THAT A CURRENT AND
ACCURATE POSITION DESCRIPTION BE SENT FORWARD, IS DEFICIENT ON THIS
GROUND.