National Treasury Employees Union and U.S. Customs Service (Authority decision, February 26, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A Customs Service employee challenged a performance appraisal that counted refusals of overtime work. The arbitrator found that appraisal element unreasonable under the union's agreement and ordered the employee's overall rating raised to outstanding. The Authority held that the agreement provision and award improperly limited management's right to identify critical performance elements and substituted the arbitrator's judgment for management's. It set aside the award and did not reach the agency's other exception.

Decision snapshot

• Authority: Management rights to direct employees and assign work under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Arbitration award set aside.
• Key point: An agreement provision could not impose a substantive limit on management's choice of critical performance elements.

Full text (FLRA public release)

[ v17 p38 ]

17:0038(12)AR

The decision of the Authority follows:

17 FLRA No. 12

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

U.S. CUSTOMS SERVICE
Agency

Case No. O-AR-601

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Thomas N. Rinaldo 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.

The parties submitted to arbitration the issue of whether the August 1982 performance appraisal of the grievant was in violation of Article 16 of the parties' collective bargaining agreement. Article 16 pertinently provides that "performance elements and performance standards . . . will be reasonable for each position." The Arbitrator evaluated the performance element of "overtime turndowns" under the nonquantitative requirement of the parties' agreement and found that the element was not reasonable. Consequently, he determined that the grievant's disputed appraisal should not take into account the grievant's performance under that element. Because the record established that the grievant in that event would have received the highest overall performance appraisal of "outstanding," the Arbitrator as his award ordered the grievant's 1981-82 overall annual appraisal amended accordingly.

As one of its exceptions the Agency essentially argues that the award is contrary to section 7106(a) of the Statute. The Authority agrees.

The Authority has repeatedly recognized that the plain language of section 7106 provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 103 S.Ct. 2085 (1983). Therefore, the Authority has consistently held that no arbitration award may improperly deny an agency the authority to exercise its rights under that section or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Id.; American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314, 321 (1981). In particular, the Authority has held that identification of critical elements constitutes an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1981), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); Saint Lawrence Seaway Development Corporation, 5 FLRA 70. In terms of this case, the Authority finds that the provision of the agreement found violated by the Arbitrator and consequently the award enforcing that provision in resolving the grievance are contrary to section 7106(a)(2)(A) and (B) as an improper interference with management's right to identify critical elements. See Saint Lawrence Seaway Development Corporation; American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 127 (1984) (union proposal 3) (in which case the Authority found the proposal that performance standards would be fair and equitable to be outside the duty to bargain as interfering with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute). Both the agreement provision and the award improperly impose a substantive limitation on management's discretion to identify which employee tasks are critical. Moreover, by imposing such a limitation, the agreement provision prompted the interference by grievance and arbitration with management's rights. The provision provided the basis for the review by the Arbitrator of the Agency's identification of "overtime turndowns" as a critical element and permitted the substitution of judgment by the Arbitrator for that of management as to how the Agency should be run. Id. Accordingly, the award is set aside as contrary to section 7106(a)(2)(A) and (B) of the Statute. /1/ Issued, Washington, D.C. February 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ In view of this decision, the Agency's other exception need not be addressed.