[ v25 p173 ]
25:0173(12)AR
The decision of the Authority follows:
25 FLRA No. 12
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
Union
and
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. 0-AR-1207
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Justin C. Smith 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 Union filed an opposition to
the exceptions.
II. BACKGROUND AND ARBITRATOR'S AWARD
This case is one of several in a dispute submitted by the parties to
the Arbitrator essentially concerning official time for employees'
representational activities. By agreement of the parties, a two-phase
arbitration process was established to resolve the basic dispute and the
resulting individual grievances. The first phase of the process
involved the interpretation of the official time provisions of the
Statute and the parties' collective bargaining agreement. In the second
phase, the Arbitrator held hearings to resolve, by bench decisions when
practicable, specific grievances pending in the various regions of the
Agency. Tje exceptions in this case have been filed to bench decisions
of the Arbitrator rendered on July 9, 10, 12 and 13, 1986, related to
claims arising in the Agency's New York Region. In those decisions the
Arbitrator generally ruled that by denying official time and related
travel and per diem expenses for Union officials for the
representational purposes involved, the Agency violated the parties'
agreement which had been negotiated consistent with the Statute.
Specifically, the Arbitrator sustained the individual grievances and
awarded reimbursement for wrongfully denied official time at appropriate
straight-time rates for the time spent by the grievants in performing
the representational activities. He also awarded travel and per diem
expenses in some instances and decided a number of issues related to the
overall dispute.
III. FIRST EXCEPTION
A. Contention
The Agency contends that the award of compensatory time to Union
representative Fahlikman for representational functions performed after
duty hours on March 21, 1983, is contrary to the provisions of 5 U.S.C.
Sections 5542 and 5543.
B. Analysis and Conclusion
We agree with the Agency that the award of compensatory time is
contrary to law. As we have previously indicated, the legal basis for
overtime pay is the performance by an employee of overtime work which
means "hours of work officially ordered or approved" in excess of eight
hours in a day or in excess of 40 hours in an administrative workweek.
5 U.S.C. Section 5542. Similarly, the legal basis for granting
compensatory time arises under 5 U.S.C. Section 5543 as a result of
overtime work performed by an employee. We have specifically held that
a union official's performance of representational activities on nonduty
time, outside regular duty hours, is not the performance of "hours of
work officially ordered or approved" that constitutes overtime work
under the provisions of section 5542(a) for which overtime pay or
compensatory time off could be granted. American Federation of
Government Employees and Social Security Administration, 21 FLRA No. 14
(1986); Social Secrurity Administration and American Federation of
Government Employees, AFL-CIO, 19 FLRA No. 104 (1985); Social Security
Administration and American Federation of Government Employees, Local
1164, AFL-CIO, 19 FLRA No. 4 (1985). Accordingly, we find that the
bench award in this case is deficient to the extent that it awards
compensatory time and that the award must be modified to substitute the
remedy provided by the Statute. We have held that the remedy provided
by the Statute is compensation at the appropriate straight-time rate for
the amount of time spent performing union representational activities on
nonduty time which the Arbitrator ruled should have been performed on
official time. Social Security Administration, 21 FLRA No. 14, slip op.
at 5.
IV. SECOND EXCEPTION
A. Contentions
The Agency contends that the Arbitrator acted improperly and that the
Agency was denied a fair hearing because: (1) the Arbitrator refused to
postpone the hearing; and, (2) the Arbitrator refused to allow an
Agency representative to be an observer at the hearing.
B. Analysis and Conclusion
As the Authority has previously indicated, an arbitration award will
be found deficient if it is established that the arbitrator failed to
conduct a fair hearing. U.S. Department of Labor and American
Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639,
641 (1983). However, the portions of the transcript cited by the Agency
do not present facts and circumstances to support the exception that the
Arbitrator denied it a fair hearing. The portions of the transcript
cited by the Agency reveal that, although the Agency had been given due
notice and an opportunity to be heard, it chose to leave the hearing and
agreed that the Arbitrator could proceed ex parte. "It cannot now
complain that it chose to stay away." Amalgamated Meat Cutters and
Butcher Workmen v. Penobscot Poultry Co., 200 F. Supp. 879 (D. Me.
1961). Moreover, the Union's opposition effectively refutes the
Agency's asserted justification for its postponement request and
supports the Arbitrator's denial of the request as warranted under the
circumstances.
As to the Arbitrator's denial of the Agency's request to have an
observer attend the proceeding, it is clear from the record that the
Agency's "representative" expressly sought to attend the proceeding only
as an observer and that the practice throughout the protracted dispute
was not to permit observers for either party to attend the hearings.
Additionally, it is well established that an arbitrator has considerable
latitude in the conduct of a hearing. The fact that the Arbitrator
conducted the hearing in a manner which one party finds objectionable
does not support a contention that the Arbitrator denied that party a
fair hearing. The Agency has failed to establish that it was denied a
fair hearing. Accordingly, this exception must be denied.
V. THIRD EXCEPTION
A. Contentions
The Agency contends the Arbitrator exceeded his authority on two
grounds: (1) the Arbitrator was functus officio /*/ because he ruled on
claims which the Agency had agreed to pay and rendered awards contrary
to his final award; and, (2) the Arbitrator ruled on claims which were
not part of the grievances before him.
B. Analysis and Conclusion
We conclude that the Agency has failed to establish that the
Arbitrator exceeded his authority. First, the Agency has not
substantiated its assertion that the Arbitrator was functus officio,
that is, without authority to render the awards of July 9, 10, 12 and
13, 1986, deciding grievances that were before him for resolution. The
substance of the Agency's functus officio argument is that, because the
Agency agreed to pay certain claims based upon an earlier award of
Arbitrator in this matter, the dispute was ended, the Arbitrator's
function was accomplished and his jurisdiction exhausted. We find that
this argument is without merit.
First, it is clear from the record that the Agency's purported
"agreement" to pay claims in accordance with the Arbitrator's earlier
rulings was an offer to enter into a consent agreement with the Union in
which the Agency would agree to pay only some of the claims involved in
the dispute before the Arbitrator. The Agency's limited offer did not
include official time or travel and per diem claims submitted after a
date the Agency asserted was the cut-off date for claims in the case, or
all non-monetary claims and grievances, which the Agency asserted were
not covered by the grievances before the Arbitrator or his earlier
awards as the Agency interpreted those grievances and awards.
(Transcript, Volume III (July 8, 1986) at 26-28, 30-32, 38, 42-43, 67,
73-74, 78, 102-109, 117-118, 120-122, 127-132, 151-154, 162-164.) The
Union expressed reservations concerning the Agency's offer (Transcript
at 12-17, 51-53, 58-63, 65-66) and did not accept but, rather, submitted
a counter offer for settlement (Transcript at 96-99), which the Agency
representative discussed but did not accept. Thus, it is clear from the
record, including the Union's opposition, that the dispute with its
numerous individual grievances and related ancilliary issues was not
resolved by the Agency's limited offer to comply.
Second, and contrary to the Agency's argument, it is clear from the
record that prior to the first phase of the arbitration the parties
agreed that the Arbitrator was authorized to resolve specific claims in
the overall dispute in the Agency's regional offices. Third, it is
clear that the Arbitrator retained jurisdiction to adjudicate all of the
claims in dispute. Fourth and finally, the record reflects that the
Arbitrator denied the Agency's motion to terminate the hearing based in
part on his concern over the Agency's persistent refusal to apply his
prior rulings either retroactively or prospectively and because of the
Agency's "blatant breach" of numerous aspects of his earlier awards and
its pattern of misconduct in this matter. Consequently, the Agency has
failed to establish in its exception either that the Arbitrator was
functus officio when he rendered the bench awards in question or that
the doctrine is even applicable in this matter. See, for example,
Patent and Trademark Office and Patent Office Professional Association,
15 FLRA 990 (1984); American Federation of Government Employees, Local
1501 and McChord Air Force Base, Washington, 7 FLRA 424 (1981).
With regard to the Agency's assertion that the Arbitrator exceeded
his authority because he ruled on claims which were not part of the
grievance before him, it is clear that the grievances resolved were
integrally related to the dispute before him. There is no support in
the record for the contention that in resolving those aspects of the
dispute pending in the Agency's New York Region he ruled on any matters
which were not before him as part of the overall grievance proceeding.
It is therefore clear that the Agency's assertions constitute nothing
more than disagreement the Arbitrator's resolution of the issues before
him and generally with his interpretation and application of the
parties' collective bargaining agreement. Such disagreement provides no
basis for finding an award deficient under the Statute. Accordingly,
this exception must be denied.
VI. FOURTH EXCEPTION
A. Contentions
In other exceptions the Agency contends that the Arbitrator's
specific bench awards related to the official time dispute are contrary
to law. In addition to general allegations that the Arbitrator's
specific awards are in violation of law, the Agency alleges that the
Arbitrator violated: (1) the Arbitration Act, 9 U.S.C. Section 10(c),
by denying its motion for a continuance and refusing to allow the Agency
to have an observer present at the hearing; (2) section 7131(d) of the
Statute by awarding straight time as a remedy for the wrongfully denied
official time because there were no requests for official time by the
Union representatives on each of the days on which they worked on their
personal time; and (3) section 7106(b)(1) of the Statute because
requiring the Agency to provide Union representatives with computerized
statements of their leave adjustments interferes with management's right
to determine the technology, methods, and means of performing work.
B. Analysis and Conclusion
We find that the three grounds asserted by the Agency in this
exception for finding the award contrary to law are without merit. More
specifically:
1. We find that the Agency has failed to establish that the
Arbitrator's award is contrary to the Arbitration Act. In this regard,
arbitration in the Federal sector is governed by the provisions of the
Federal Service Labor-Management Relations Statute and not by the
provisions of the Arbitration Act. Moreover, the thrust of the Agency's
argument is that it was denied a fair hearing. As noted in resolving
the Agency's second exception, the Agency has failed to establish that
it was denied a fair hearing and that the award is deficient on this
basis. Accordingly, this exception must be denied.
2. We find that, based upon our decision in U.S. Department of
Health and Human Services, Social Security Administration and American
Federation of Government Employees, AFL-CIO, 22 FLRA No. 16 (1986),
request for reconsideration denied (Aug. 15, 1986), the Agency's
argument that the Arbitrator violated section 7131(d) of the Statute is
without merit. See also American Federation of Government Employees and
Social Security Administration, 21 FLRA No. 14 (1986); Social Security
Administration and American Federation of Government Employees, AFL-CIO,
19 FLRA No. 104 (1985). In this case, the Arbitrator with respect to
each bench decision essentially found that the denial of official time
was in violation of the parties' agreement which had been negotiated
consistent with the Statute. Thus, the Arbitrator effectively found
that all of the conditions of section 7131(d) had been met.
Consequently, the Agency has failed to establish that the bench awards
granting the grievants compensation for the amount of time spent
performing representational activities on nonduty time which the
Arbitrator ruled should have been performed on official time are
contrary to law. Accordingly, this exception must be denied.
3. We find that the Agency has failed to establish that the award is
contrary to section 7106(b)(1) of the Statute. The Agency has not shown
how prividing employees with the data entered into the computer system
maintained by the Agency for adjusting leave records would conflict with
its right to determine which technology, methods, and means will be used
in accomplishing or furthering the work of the Agency. See
Congressional Research Employees Association and Library of Congress, 18
FLRA No. 5 (1985); American Federation of State, County and Municipal
Employees, AFL-CIO, Local 2477; American Federation of State, County
and Municipal Employees, AFL-CIO, Local 2910; Congressional Research
Employees Association; and Law Library of Congress United Association
of Employees and Library of Congress, Washington, D.C., 7 FLRA 578
(1982). The award, based upon evidence at the hearing that the Agency
currently utilizes a computer leave system, does not require the Agency
to utilize a system for adjusting employee leave records which it does
not currently or ordinarily use. Rather, as previously noted, the award
only requires that the information entered into the computer system
which shows what leave adjustment was taken, as well as other leave data
for the year, be provided the affected union representatives. Thus, the
award is consistent with the Agency's current technology, methods, and
means of maintaining leave records. Accordingly, this exception must be
denied.
VII. FIFTH EXCEPTION
A. Contention
The Agency contends that the Arbitrator's bench decisions do not draw
their essence from the parties' collective bargaining agreement and
another agreement. In support of this contention, the Agency
essentially argues that the bench decisions are contrary to a 1985
agreement between the parties which the Agency asserts limited the
claims in the dispute to a particular period and imposed limitations on
the Arbitrator's authority which were exceeded in this case.
B. Analysis
From the record before us it is clear that the parties agreed that
the initial awards in this matter were to be prospectively, as well as
retroactively, applied. Finally, the Agency's assertions do not
establish that the Arbitrator's award fails to draw its essence from the
collective bargaining agreement. It is clear that the Agency is
attempting to relitigate the dispute before the Authority and that its
assertions amount to nothing more than disagreement with the
Arbitrator's reasoning and conclusions and interpretation and
application of the parties' agreement in resolving the dispute before
him. Consequently, this exception does not provide any basis for
finding the award deficient and must be denied. See Federal
Correctional Institution, Petersburg, Virginia and American Federation
of Government Employees, Local 2052, Petersburg, Virginia, 3 FLRA 108
(1983).
VIII. DECISION
Accordingly, for the reasons stated above, the Agency's exceptions
are denied but the award of compensatory time to union representative
Fahlikman is modified by substituting for the number of hours of
compensatory time an equal number of hours of compensation at the
appropriate straight-time rate.
Issued, Washington, D.C., January 13, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) The concept of "functus officio" is derived from the Latin term
meaning "a task performed." As applied to an official, the concept
essentially means that once the official has fulfilled the function or
accomplished the designated purpose of his or her office, the official
has no further authority. Black's Law Dictionary 606 (5th ed. 1979).