[ v25 p238 ]
25:0238(17)AR
The decision of the Authority follows:
25 FLRA No. 17
SOCIAL SECURITY ADMINISTRATION
Agency
and
NATIONAL COUNCIL OF SSA FIELD
OPERATIONS LOCALS (NCSSAFOL)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE)
Union
Case No. 0-AR-1167
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator James P. Whyte filed by the Agency and by the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
II. Background
The parties reached an impasse in bargaining on a supplemental
agreement and were directed by the Federal Service Impasses Panel (the
Panel) to submit their dispute to mediation/arbitration. The Arbitrator
was given authority by the Panel to issue a final decision on the
outstanding issues. The Arbitrator made his award on May 6, 1986 and
issued a supplemental award on June 4, 1986. Both parties filed
exceptions to various portions of the award as set forth below.
III. Agency Exceptions
A. First Exception
1. Contentions
The Agency contends that the award of the following
language of Article 9, Section 7.G.3. is contrary to the Statute:
Any pregnant VDT (Video Display Terminal) operator will be
permitted to transfer upon request to another function during her
pregnancy without adverse effect.
Specifically, the Agency contends that this part of the award is
contrary to section 7105(a)(2)(E) because the Arbitrator resolved an
issue relating to the duty to bargain and such issues may be resolved by
the Authority only. Additionally, the Agency contends that the award is
contrary to the rights to assign work and employees under section
7106(a)(2).
In its opposition the Union contends that the Arbitrator did not make
a negotiability determination but only decided that an exception to
management's right to assign employees was appropriate in this situation
to protect the health and safety of pregnant VDT operators. The Union
contends that the award is not contrary to section 7106(a)(2) because
the provision constitutes an arrangement for employees adversely
affected by the exercise of a management right.
2. Analysis and Conclusion
The Authority has consistently ruled that negotiability disputes
which arise between an agency and an exclusive representative under
section 7117(c) of the Statute must be resolved by the Authority as
required by section 7105(a)(2)(E). Department of the Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio and
American Federation of Government Employees, Council of Locals, No. 214,
18 FLRA No. 81 (1985); Louis A. Johnson Veterans Administration Medical
Center, Clarksburg, West Virginia and American Federation of Government
Employees, Local 2384, 15 FLRA 347 (1984). The Authority has held on
this basis that an interest arbitrator acting pursuant to a direction of
the Federal Service Impasses Panel does not have authority to resolve
such duty-to-bargain issues. AFLC, Wright-Patterson Air Force Base.
The Authority also held in the cited cases that when an agency has
asserted to an interest arbitrator that a proposal is not negotiable by
reason of section 7106(a) of the Statute, the Arbitrator is not
authorized to resolve the issue and his award on that issue is
deficient. In this and future cases involving allegations of
nonnegotiability made in an interest arbitration proceeding, we will
carefully examine the record of the case and the arbitrator's award.
This examination will be made to determine whether the arbitrator made a
negotiability ruling or whether the arbitrator merely applied existing
Authority case law to resolve the impasse. In the event of the former
action, the award will be set aside in accordance with Louis A. Johnson
V.A. Medical Center. In the latter, we will resolve the exceptions on
the merits and sustain the award if existing case law is correctly
applied.
In this case, the Arbitrator states in his award that the Agency
claimed that the proposal concerning accommodations for pregnant VDT
operators was not negotiable but he included the proposal in the
agreement as an "exception" to management's right to assign work. There
is no clear Authority precedent on this issue. Accordingly, since the
Agency asserted its claim of nonnegotiability, the Arbitrator did not
have the authority to resolve the impasse on this issue and his award is
deficient to that extent.
B. Second Exception
1. Contentions
The Agency contends that the award of the following language of
Article 7, Section 2 is contrary to section 7119(c)(5)(B) of the
Statute:
In the event the union fails to ratify the Supplemental
Agreement, the parties will meet within 60 days to renegotiate
those portions specified by the union.
The Agency contends that this requirement is contrary to the Panel's
power to take final action to resolve an impasse and that it is contrary
to the Panel's direction to the Arbitrator that he resolve the issues
not resolved by mediation by "issuing a final decision."
The Union in its opposition maintains that there is no violation of
section 7119(c)(5)(B) because the award is consistent with the Panel's
directions and provides for subsequent procedures to be followed only if
ratification is not obtained. The Union also points out that the
parties' ground rules for negotiating the supplemental agreement include
a provision that "the agreement will be subject to ratification by the
Locals."
2. Analysis and Conclusion
We find that the Agency fails to show that the disputed portion of
the award is contrary to section 7119(c)(5)(B). There is nothing in the
Statute which prohibits the parties from including a provision for Union
ratification of an agreement before it becomes final and the Authority
has held that ratification of a tentative agreement by a union's
membership may be a precondition to a binding agreement. See U.S.
Department of Commerce, Bureau of the Census and American Federation of
Government Employees, Local 2782, AFL-CIO, 17 FLRA 667 (1985). In this
case, the parties' ground rules provide for ratification by the Union
locals and the Arbitrator's award is consistent with that agreement.
Consequently, we find that the provision allowing the reopening of the
agreement in the event the Union fails to ratify the agreement is not
contrary to section 7119(c)(5)(B) and the Agency's second exception
provides no basis for finding the award deficient.
C. Third Exception
1. Contentions
The Agency contends that the award of the following underlined
language of Article 7, Section 2 is contrary to section 7114(c):
If the Agency Head disapproved any portion of this Agreement,
the parties will meet within 60 days to reopen negotiations on all
affected provisions. Implementation of the remaining provisions
will not be delayed.
An allegation by either party that there is no duty to bargain
on a specific proposal shall not delay implementation of the
remaining provisions.
The Agency contends that once an agreement has been disapproved by
the agency head, there is no duty to implement other parts of the
agreement.
The Union contends in its opposition that there is no statutory
requirement to delay implementation of provisions to which no allegation
of nonnegotiability has been made. Further, the Union maintains that
section 7114(c) does not prohibit implementation by the parties of those
provisions of an agreement not specifically disapproved by an agency
head.
2. Analysis and Conclusion
We find that the Agency's third exception fails to show that the
award is contrary to section 7114(c). Both parties cite in support of
their position the Authority's decision in Department of the Interior,
National Park Service, Colonial National Historical Park, Yorktown,
Virginia, 20 FLRA No. 65 (1985). In that decision, the Authority held
essentially that under section 7114(c), "the agreement," not a portion
of the agreement, must be approved by the agency head before the
agreement goes into effect and becomes enforceable. Id., at page 5 of
the Decision. However, as the Union points out, the Authority also
added that the parties could agree to implement all provisions of their
local agreement not specifically disapproved by the agency head. Id. at
page 5, n.6. In this case the Arbitrator, as part of his final award
resolving the parties' impasse, ordered implementation of the provisions
which are not disapproved by the Agency head or not alleged to be
outside the duty to bargain. This provision is not inconsistent with
section 7114(c) and the Agency's third exception provides no basis for
finding the award deficient.
IV. Union Exceptions
A. First Exception
1. Contentions
The Union contends that the award of the following language of
Article 2, Section 1.A. is contrary to section 7114(b)(4) of the
Statute:
Section 1A -- Information Requests
Union agrees to make reasonable efforts to be specific in
identifying the areas of information desired, when requesting
information under 5 USC 71.
When feasible and consistent with the union right to
information under law, employee data will be sanitized in the
interest of protecting individual privacy. Union representatives
are responsible for maintaining the confidentiality of personnel
data made available to them in accordance with applicable law,
rule and regulation.
The parties agree that management is not obligated to provide
information that it previously provided.
The parties agree that management is not obligated to provide
information which is burdensome and/or unwieldy.
The Union maintains that this provision abridges its right to obtain
necessary information under section 7114(b)(4) and that it constitutes a
waiver of its rights. The Union further contends that the award of this
provision over which it had elected not to bargain constituted an
improper negotiability determination by the Arbitrator.
The Agency denies that the provision imposes any illegal restrictions
on the Union's right to obtain information and argues that it only
requires the Union to be reasonably specific in its requests. The
Agency maintains that the Union's rights under law are protected by the
language of the agreement, particularly Article 2, Section 13 which
states "(n)othing in this Article constitutes a waiver of union rights
under 5 U.S.C. 7114."
2. Analysis and Conclusion
The Union's first exception fails to demonstrate that the award is
contrary to section 7114(b)(4) of the Statute. It is well established
that the Union is entitled, upon request, to information which meets the
requirements of that section. Bureau of Alcohol, Tobacco and Firearms,
National Office and Western Region, San Francisco, California, 8 FLRA
547 (1982). However, the Authority has held that section 7114(b)(4)
does not preclude the parties from establishing procedures for
furnishing information to an exclusive representative. Department of
Defense Dependents Schools, Washington, D.C. and Department of Defense
Dependents Schools, Germany Region, 19 FLRA No. 96 (1985). In this case
we find that the Arbitrator's award concerning information requests does
not deprive the Union of its rights to request and receive information
under section 7114(c) of the Statute. We further note, with regard to
the Union's claim of nonnegotiability, that under section 7117(c)(1) of
the Statute, only an agency may make an allegation of nonnegotiability.
Veterans Administration Medical Center, Salisbury, North Carolina and
American Federation of Government Employees, AFL-CIO, Local 1738, 2 FLRA
405 (1980). The Statute does not sanction allegations of
nonnegotiability by the Union. The Arbitrator therefore did not make an
improper negotiability determination as alleged. We further find that
there was no waiver of any rights of the Union under section 7114
because the agreement provision in Article 2, Section 13 plainly states
that there is no waiver of thos rights. The Union's first exception
provides no basis for finding the award deficient.
B. Second Exception
1. Contentions
The Union contends with respect to the provisions of Article 2,
Sections 1.A and 13 (quoted above), that the award is ambiguous and
contradictory so as to make implementation impossible.
The Agency denies that the provisions are ambiguous or contradictory
and argues that they are consistent with law.
2. Analysis and Conclusion
We find that the Union's exception provides no basis for finding the
award deficient. The Union falis to show that the award of the language
in question is in any way ambiguous or contradictory so as to make
implementation impossible. See, for example, U.S. International Trade
Commission, Washington, D.C. and American Federation of Government
Employees, Local 2211, AFL-CIO, 13 FLRA 440 (1983). The Union's second
exception must be denied.
C. Third Exception
1. Contentions
The Union contends with respect to Article 11, Sections 1.A. (items
1, 2 and 3), 2.A., 2.B., 2.C., and 2.F., that the Arbitrator exceeded
his authority by determining issues not included in the subject matter
submitted to him. The Arbitrator rejected those Union proposals which
concerned Union office space and equipment on the grounds that they were
inconsistent with the national agreement and not appropriate for the
supplemental agreement. The Union maintains that neither party made an
allegation that the proposals were inconsistent with the national
agreement.
In opposition, the Agency contends that the proposals were presented
to the Arbitrator for a final determination and that he had the
authority to resolve the issues presented.
2. Analysis and Conclusion
We find that the Union's exception fails to show that the Arbitrator
exceeded his authority by deciding an issue not before him. The
Arbitrator was empowered by the Panel to resolve any issues not resolved
in negotiating on the supplemental agreement by issuing a final
decision. Central to all the issues presented was the issue of whether
or not the provisions of the supplemental agreement were consistent with
the master agreement. The Union is merely disagreeing with the
Arbitrator's interpretation and application of the master agreement.
National Treasury Employees Union and U.S. Nuclear Regulatory
Commission, 12 FLRA 609 (1983). The Union's third exception provides no
basis for finding the award deficient.
D. Fourth Exception
1. Contentions
The Union contends that the following portion of the Arbitrator's
award adopting the Agency's counter-offer on flexitime is contrary to
law:
All current flexitime, alternative work schedules, credit hour
agreements, arrangements, and/or experiments in effect in AFGE
offices will terminate on the date this agreement becomes
effective.
The Union contends that adoption of this management proposal will
abolish existing alternative work schedules (AWS) in approximately 30
field offices in the Atlanta Region without using the procedures
required by 5 U.S.C. section 6131 particularly section 6131(c)(3)(B).
/*/ The Union maintains that the Agency's declaration of an "adverse
impact" was not presented to the Arbitrator until the final day of the
mediation/arbitration process, was never before the Panel for
resolution, and was not within the authority of the Arbitrator.
In its opposition the Agency argues that the matter was presented to
the Arbitrator well before the final day of the proceeding and that
alternative work schedules were a major area of dispute throughout the
mediation process before both the Panel and the Arbitrator. The Agency
points out that (1) AWS plans in 14 of the Atlanta Regional offices were
covered by a memorandum of understanding until superseded by a national
master agreement or a national supplemental agreement, and (2) another
group of 25 offices were covered by the Court's decision enforcing the
Authority's decision in Social Security Administration and American
Federation of Government Employees, AFL-CIO, 11 FLRA 390 (1983),
enforced sub nom. FLRA v. Social Security Administration, 753 F.2d 156
(D.C. Cir. 1985). The Agency contends that the negotiation of a
supplemental agreement at the national level constitutes negotiation on
the termination of AWS at the appropriate level with the appropriate
group.
2. Analysis and Conclusion
We find that the Union fails to show that the Arbitrator's award
adopting the Agency's counter-proposal on flexitime is contrary to 5
U.S.C. section 6131. After carefully considering the record before us
we conclude that the matters of alternative work schedules and flexitime
were presented as issues to the Arbitrator in timely fashion and were
issues in the dispute which the Arbitrator was empowered to resolve.
The Panel in its direction to the parties to submit their dispute to
mediation/arbitration authorized the Arbitrator to issue a final
decision on "all outstanding issues." Accordingly, the Union's fourth
exception provides no basis for finding the award deficient.
E. Fifth Exception
1. Contentions
In its fifth exception, the Union contends that the Arbitrator
exceeded his authority by considering and ruling on the abolition of AWS
plans in regional offices because that issue was not included in the
subject matter submitted to him.
The Agency contends in opposition that the issue of abolition of
existing AWS plans already in existence was presented to the Arbitrator
and submits copies of management proposals and comments which it
maintains demonstrate that it presented the matter to the arbitrator.
2. Analysis and Conclusion The Union's fifth exception fails to show
that the award is deficient on the ground that the Arbitrator exceeded
his authority by ruling on the abolition of flexitime plans in the
regional offices. The entire matter of flexitime and AWS was presented
as one of the areas of impasse to be resolved, as noted with regard to
the Union's fourth exception. Therefore, abolition of flexitime and AWS
plans in the regions was properly an issue before him. The Union's
fifth exception provides no basis for finding the award deficient.
V. DECISION
In accordance with the above discussion, that portion of the
Arbitrator's award concerning Article 9, Section 7.G.3. is set aside.
The two remaining Agency exceptions and the five Union exceptions are
denied.
Issued, Washington, D.C., January 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) 5 U.S.C. Section 6131(c)(3)(B) provides:
If the agency and exclusive representative reach an impasse in
collective bargaining with respect to terminating such schedule, the
impasse shall be presented to the Panel.