The question before us is whether the award is inconsistent with management’s right to assign work under § 7106(a)(2)(B) of the Federal Service            Labor-Management Relations Statute (the Statute).^[1] Because the Agency does not allege or demonstrate that the pertinent provisions of the parties’ agreement are unenforceable under § 7106(b) of the Statute, the answer is no.

 

 

 

 

                The Union filed a grievance making a variety of complaints about the PAP. As relevant here, the grievance alleged that the PAP “includes standards or elements that are unrealistic and unattainable,”^[2] in violation of Articles 6 and 18 of the parties’ agreement, Agency Memorandum 05-22, and Agency Handbook 5013, Part I (Agency policies). The grievance requested that the Agency remove the standards and/or elements. The matter was ultimately referred to the Arbitrator.

                Before the Arbitrator, the parties stipulated to the following issue, as relevant here:  “Did the [Agency] violate Article 6 and/or Article 18 of the                 [parties’ a]greement and/or [Agency p]olicies . . . when it issued the . . . [2013 PAP]? If so, what shall be the remedy?”^[3] 

 

Article 6, Section 1 provides, in relevant part, that “all employees shall be treated fairly and equitably and without discrimination . . . [and the Agency] will endeavor to establish working conditions, which will be conducive to enhancing and improving employee’s morale and efficiency.”^[4] And Article 18, Section 2 states that “[t]he performance appraisal system will provide for . . . the establishment of performance standards which will be based upon the requirements of theemployee’s position.”^[5] The Agency polices also set forth guidelines for issuing performance appraisal plans and standards. Specifically, Section 4a of Agency Memorandum 05-22 states that “[a] written performance plan for each employee will be developed based on the requirements of the employee’s position.”^[6] 

 

                The Arbitrator denied the grievance in most respects. But she sustained the grievance’s claim that the Agency violated the parties’ agreement and two Agency policies by issuing a PAP with “unrealistic and unattainable” performance elements and standards.^[7] The Arbitrator framed the claim as: “Do aspects of the [PAP] contravene the terms of the [parties’ a]greement, the [Agency] Handbook, or [Agency] Memo 5-22?”^[8]

                The Arbitrator first considered the PAP’s new “[p]roductivity [s]tandard,”^[9] namely, that the grievant was required to “[s]chedule[] at least one patient for psychological testing per week.”^[10] She found that the grievant’s official union duties placed time constraints on the grievant’s clinical schedule during the workweek. For this reason, the Arbitrator concluded that the grievant could not be expected to meet the same standard as other employees in her position who do not spend sixty percent of their workweeks on official time. Accordingly, she found that the new productivity standard should be removed.

 

                The Arbitrator next addressed the PAP’s new “[d]ocumentation [s]tandard.”^[11]  This standard required that the grievant follow a specific procedure for scheduling patient “consults” – i.e., “requests from physicians or others that a veteran be seen for a psych[iatric] or neuro-psych[iatric] evaluation.”^[12] The Arbitrator found that the grievant was not required to schedule consults during eleven of the twelve months of her performance year. Because scheduling consults was not a requirement of the grievant’s position for most of the performance year, the Arbitrator determined that it should not be part of her PAP.

 

                As a remedy for the aspects of the grievance she sustained, the Arbitrator ordered the Agency to modify the language of the “[p]roductivity [s]tandard”^[13] in the grievant’s 2013 PAP by returning to the standard set forth in her 2012 PAP. Regarding the “[d]ocumentation [s]tandard,”^[14] she ordered that the language “related to scheduling consults . . . be stricken.”^[15]

 

 

 

 

 

 

 

 

 

 

 

                The Agency argues that the award is inconsistent with management’s right to assign work under § 7106(a)(2)(B) “by determining the content of performance standards” and requiring the Agency to modify the grievant’s PAP.^[16] The Union claims that the Agency did not argue that the contract provision that the Arbitrator enforced was not negotiated under § 7106(b).^[17] Where an exception alleges that an arbitrator’s award is inconsistent with management rights, the Authority first assesses whether the award affects the exercise of the asserted management right.^[18] If so, then, as relevant here, the Authority examines whether the award enforces a contract provision negotiated under § 7106(b).^[19]  When an agency files a management-rights exception to an award enforcing a contract provision, the agency must allege not only that the award affects management rights,^[20] but also that the relevant contract provision is not enforceable under § 7106(b).^[21]  

 

                Even assuming that the award affects management’s right to assign work under § 7106(a)(2)(B),^[22] the Agency does not allege that the Arbitrator was enforcing contract provisions – Articles 6 or 18 – that were not negotiated under § 7106(b). Consequently, the Agency has implicitly conceded that Articles 6 and 18 are enforceable under § 7106(b).^[23] As contract provisions negotiated under § 7106(b) are exceptions to management’s rights under § 7106(a), we find that the Agency fails to demonstrate that the award is inconsistent with the management’s right to assign work under § 7106(a)(2)(B). Accordingly, we deny the Agency’s exception.  

 

                The dissent raises a number of objections that the dissent has raised in previous cases.^[24] As the majority explained in those cases, the dissent’s objections lack merit.^[25] 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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