American Federation of Government Employees, Local 51 (Union) and U.S. Assay Office (Activity)

 7 FLRA No. 64
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 51
 Union
 
 and
 
 U.S. ASSAY OFFICE
 Activity
 
                                            Case No. 0-AR-82
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR GERALD D. MARCUS FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE AGENCY FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN 28
 EMPLOYEES WERE REQUESTED TO UNDERGO PHYSICAL FITNESS FOR DUTY
 EXAMINATIONS. THE UNION GRIEVED THIS ACTION CLAIMING THAT THE ACTIVITY
 VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY FAILING TO MEET AND
 CONFER WITH THE UNION PRIOR TO IMPLEMENTING A NEW PRACTICE TO DEAL WITH
 A POTENTIAL ABUSE OF SICK LEAVE.  THE DISPUTE WAS SUBMITTED TO
 ARBITRATION WITH THE FOLLOWING STIPULATED ISSUE:
 
    DID MANAGEMENT HAVE JUST CAUSE TO ISSUE PHYSICAL FITNESS DUTY ORDERS
 TO ASSAY OFFICE
 
    EMPLOYEES COMMENCING JUNE 27, 1979, UNTIL THE DATE OF THE HEARING?
 
    IN ADDRESSING THIS ISSUE THE ARBITRATOR FOUND THAT THE ACTIVITY HAD
 THE UNQUESTIONED AUTHORITY TO ORDER FITNESS FOR DUTY EXAMINATIONS.
 MOREOVER, THE ARBITRATOR CONCLUDED THAT, IN THE CIRCUMSTANCES OF THIS
 CASE, ORDERING THE EXAMINATIONS WAS A REASONABLE ACTION IN DEALING WITH
 THE PROBLEM OF ABSENTEEISM ON THE PRODUCTION LINE. HE FOUND NO
 REQUIREMENT IN EITHER THE AGREEMENT OR LAW WHICH MANDATED THE ACTIVITY
 TO CONSULT WITH THE UNION OR TO MEET AND CONFER BEFORE ORDERING AN
 EXAMINATION TO DETERMINE WHETHER AN EMPLOYEE IS PHYSICALLY CAPABLE OF
 DOING HIS OR HER JOB. THE UNION ARGUED THAT ISSUING 28 ORDERS IN A SHORT
 PERIOD OF TIME CONSTITUTED A NEW PRACTICE AND THAT PURSUANT TO THE
 COLLECTIVE BARGAINING AGREEMENT THE ACTIVITY SHOULD HAVE CONFERRED WITH
 THE UNION PRIOR TO ITS IMPLEMENTATION.  HOWEVER, THE ARBITRATOR FOUND
 THAT THE ACTIVITY HAD ESTABLISHED A "CONTINUING PRACTICE" OF ISSUING
 FITNESS FOR DUTY EXAMINATION ORDERS.  HE DETERMINED THAT INCREASING THE
 NUMBER OF EMPLOYEES WHO RECEIVE THE ORDERS DOES NOT CHANGE AN ONGOING
 PRACTICE INTO A NEW PRACTICE AND CONCLUDED THAT THE ACTIVITY HAD NO DUTY
 TO CONFER WITH THE UNION PRIOR TO ISSUING THE ORDERS.  HOLDING THAT THE
 ACTIVITY HAD "JUST CAUSE TO ISSUE PHYSICAL FITNESS DUTY ORDERS," THE
 ARBITRATOR DISMISSED THE GRIEVANCES.
 
    IN ITS FIRST THREE EXCEPTIONS, THE UNION CONTENDS THAT THE
 ARBITRATOR'S AWARD VIOLATES 5 U.S.C. 7116(A)(5) /2/ BY RELIEVING THE
 ACTIVITY OF ITS DUTY TO BARGAIN.  ACCORDING TO THE UNION, THE COLLECTIVE
 BARGAINING AGREEMENT CONTAINS A NEGOTIATED METHOD FOR DEALING WITH ABUSE
 OF SICK LEAVE, /3/ AND THEREFORE THE ACTIVITY VIOLATED THE STATUTE BY
 CHANGING THIS PROCEDURE WITHOUT NEGOTIATING WITH THE UNION.
 
    THE UNION HAS FAILED TO ESTABLISH THAT THE AWARD IS CONTRARY TO LAW.
 THE UNION HAS PREMISED ITS FIRST THREE EXCEPTIONS ON THE ASSERTION THAT
 THE ISSUANCE OF 28 ORDERS FOR FITNESS FOR DUTY EXAMINATIONS CONSTITUTED
 IMPLEMENTATION OF A NEW PRACTICE WHICH, UNDER THE STATUTE, REQUIRED
 NEGOTIATIONS BETWEEN THE ACTIVITY AND THE UNION.  AS WAS NOTED, HOWEVER,
 THE ARBITRATOR SPECIFICALLY CONCLUDED THAT ISSUING THE ORDERS DID NOT
 CONSTITUTE A NEW PRACTICE, BUT RATHER THE CONTINUED USE OF AN ONGOING
 PRACTICE.  THE ARBITRATOR FOUND NO RESTRICTIONS IN THE FEDERAL PERSONNEL
 MANUAL AS TO WHEN, OR HOW FREQUENTLY, FITNESS FOR DUTY EXAMINATIONS
 COULD BE ORDERED.  FURTHER, THE ARBITRATOR FOUND NOTHING UNREASONABLE
 ABOUT THE ACTIVITY'S DECISION IN THIS CASE TO ORDER THE EXAMINATIONS
 RATHER THAN SEND LETTERS OF REQUIREMENT TO THE EMPLOYEES.  IN ITS
 EXCEPTIONS THE UNION HAS FAILED TO DEMONSTRATE THAT, CONTRARY TO THE
 ARBITRATOR'S FINDINGS AND AWARD, THE ORDERING OF FITNESS FOR DUTY
 EXAMINATIONS CONSTITUTED A NEW PRACTICE BY THE ACTIVITY WHICH WOULD
 REQUIRE THE ACTIVITY TO NEGOTIATE WITH THE UNION PRIOR TO ITS
 IMPLEMENTATION.  MOREOVER, TO THE EXTENT THESE ASSERTIONS ARE BASED ON
 THE PREMISE THAT THE ISSUANCE OF THE ORDERS WAS A NEW PRACTICE, THEY
 CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S REASONING AND CONCLUSIONS
 TO THE CONTRARY.  SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER
 PATROL COUNCIL AND U.S. IMMIGRATION AND NATURALIZATION SERVICE, SOUTHERN
 REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980).  THEREFORE, THE UNION'S
 FIRST THREE EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.
  /4/
 
    IN ITS FOURTH EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR BASED
 HIS DECISION THAT THE ACTIVITY HAD JUST CAUSE TO ORDER THE PHYSICALS ON
 NONFACTS.  IN SUPPORT OF THIS CONTENTION THE UNION ASSERTS THAT THE
 ARBITRATOR ERRONEOUSLY BELIEVED THAT THE MEDICAL REPORTS FROM THE
 EXAMINATIONS WOULD BE MORE DETAILED AND COMPREHENSIVE THAN MEDICAL
 SUBSTANTIATION FOR A GIVEN ABSENCE.  ADDITIONALLY, THE UNION ALLEGES
 THAT THE ARBITRATOR INCORRECTLY FOUND THAT THE ACTIVITY WAS NOT ACTING
 IN BAD FAITH AS LONG AS THE PROCEDURE BEING FOLLOWED WAS "PROPERLY
 AUTHORIZED."
 
    IN THIS CASE THE UNION HAS NOT DEMONSTRATED THAT THE AWARD IS BASED
 ON A NONFACT, THAT IS, THAT THE CENTRAL FACT UNDERLYING THE AWARD IS
 CONCEDEDLY ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR
 WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED.  RATHER, THE UNION'S
 ASSERTIONS IN SUPPORT OF ITS EXCEPTION CONSTITUTE DISAGREEMENT WITH THE
 ARBITRATOR'S REASONING AND CONCLUSIONS.  AS PREVIOUSLY NOTED, THE
 AUTHORITY WILL NOT REVIEW AN AWARD WHERE IT APPEARS THE EXCEPTION
 CONSTITUTES DISAGREEMENT WITH THE REASONING EMPLOYED BY THE ARBITRATOR
 ON THE MERITS OF THE ISSUE BEFORE HIS.  THEREFORE, THE UNION'S FOURTH
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 24, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ 5 U.S.C. 7116(A)(5) PROVIDES:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
 ORGANIZATION AS REQUIRED
 
    BY THIS CHAPTER(.)
 
    /3/ THE UNION REFERS TO SECTION 12-12 OF THE COLLECTIVE BARGAINING
 AGREEMENT, WHICH PROVIDES:
 
    AN EMPLOYEE WILL BE NOTIFIED IN WRITING WHEN HIS USE OF SICK LEAVE IS
 CONSIDERED ABUSIVE.
 
    /4/ THE UNION ALSO CONTENDED IN ITS THIRD EXCEPTION THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY.  HOWEVER, THE UNION PROVIDED NO
 ARGUMENTS IN SUPPORT OF THAT CONTENTION WHICH DEMONSTRATE THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY IN ANY MANNER.