American Federation of Government Employees Local 1917 and United States Immigration and Naturalization Service (Authority decision, August 29, 1984)

Final FLRA decision. The Authority sets aside an arbitration award about performance standards and critical job elements. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An INS arbitrator considered a grievance challenging numerical performance standards for criminal investigators and the designation of a job element as critical. He rejected the challenge to the numerical standards but ordered the agency to make the disputed element noncritical. The Authority held that management's rights to direct employees and assign work precluded using the negotiated grievance process to challenge these decisions. It set aside the entire award, including the arbitrator's ruling that the grievance was arbitrable.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Agency exception sustained; entire arbitration award set aside.
• Key point: A grievance could not directly contest management's establishment of performance standards and critical elements.

Full text (FLRA public release)

[ v15 p781 ]

15:0781(147)AR

The decision of the Authority follows:

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.