[ v25 p479 ]
25:0479(33)AR
The decision of the Authority follows:
25 FLRA No. 33
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
Case No. O-AR-1210
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.
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. The exceptions in this case have been
filed to bench decisions of the Arbitrator rendered on July 30, 1986,
related to claims arising in the Agency's regional offices. 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. Contentions
The Agency contends that the award concerning Mary Ellen Shea, a
Claims Representative in the Agency's Boston Region, is deficient on a
number of grounds. The Union sought tuition, fees, official time, and
travel and per diem expenses for Ms. Shea to attend Harvard University
for the academic year 1986-1987, to obtain a master's degree in public
administration to enhance her effectiveness as a Union representative.
/1/ The Arbitrator awarded the remedy requested. The Agency principally
contends that this award of the Arbitrator is contrary to section 7106
of the Statute.
B. Analysis and Conclusion
We agree with the Agency that the Arbitrator's award concerning Ms.
Shea is contrary to section 7106 of the Statute. The Authority has
consistently held that an arbitration award may not interpret or enforce
a collective bargaining agreement so as to improperly deny an agency the
authority to exercise its rights under section 7106. Section
7106(a)(2)(B) reserves to management officials the right to assign work.
Furthermore, the assignment of training during the duty time of
employees constitutes an exercise of management's right to assign work
under section 7106(a)(2)(B). Encompassed within this right is the
discretion to determine which employees will receive particular training
during duty hours. For example, U.S. Department of Justice, Immigration
and Naturalization Service, Western Regional Office, San Pedro,
California and American Federation of Government Employees, Immigration
and Naturalization Service Council, Western Region, Local 2805, 18 FLRA
No. 20 (1985).
Additionally, it is well established under Authority precedent in
negotiability cases that proposals which would require management to
provide specific formal training or to assign employees to specific
training programs during working hours are outside the duty to bargain
because they infringe on management's right to assign work under section
7106(a)(2)(B). For example, American Federation of Government
Employees, Local 2094, AFL-CIO and Veterans Administration Medical
Center, New York, New York, 22 FLRA No. 81 (1986) (proposal 6).
In this case, we find that the Arbitrator's award which interprets
and enforces the parties' agreement in such a way as to direct the
Agency to provide Ms. Shea with a Harvard education on duty time or, in
other words, to assign her the specific training of the Harvard program
on duty time constitutes an improper interference with management's
right to assign work under section 7106(a)(2)(B). Accordingly, that
portion of the Arbitrator's award which grants Ms. Shea tuition, fees,
official time, and travel and per diem expenses to attend Harvard
University must be set aside as contrary to section 7106(a)(2)(B) of the
Statute. /2/
IV. SECOND EXCEPTION
A. Contentions
The Agency contends that the portion of the award which requires the
Agency to provide the Union use of a particular type of photocopy
machine is contrary to section 7106 of the Statute and the
Government-wide regulations concerning procurement actions. According
to the Arbitrator, the parties' agreement provides that the Agency will
continue to provide such office space and furnishings as were provided
under component-wide agreements or other arrangements on June 10, 1980.
Transcript Volume II, July 30, 1986, at 122. Because the Agency had
provided a 15-sort capacity photocopy machine for the Union's use on and
before that date, the Arbitrator concluded that the Agency had violated
the parties' agreement and ordered that it furnish the Union an
equivalent photocopy machine, as well as reimburse the Union for the
costs it incurred leasing a photocopy machine during the time the Agency
failed to provide one.
The Agency argues that this award is contrary to its section
7106(a)(1) right to determine its budget and its section 7106(a)(2)(B)
right to make determinations with respect to contracting out because it
prescribes the particular equipment that must be provided to the Union.
The Agency further argues that the award is contrary to 44 U.S.C. and
the Government-wide regulations concerning procurement actions, 41 CFR
Sections 101-25. because it orders the Agency to spend money for a
purpose for which it was not appropriated and, in effect, determines
that the photocopy machine leased by the Union, as well as the one the
Agency must now provide, were acquired pursuant to contracts made on
behalf of the Government.
B. Analysis and Conclusion
We find that the Agency has failed to establish that the Arbitrator's
award is contrary to its right under section 7106(a)(1) of the Statute
to determine its budget. Under the test set forth in American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
enforced as to other matters sub nom. Department of Defense v. Federal
Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 995 (1982), the award does not require
the Agency to include a particular program or operation in its budget.
See also Federal Employees Metal Trades Council, AFL-CIO and Department
of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA
No. 31 (1987), slip op. at 8-9. Moreover, "(o)nly where an agency makes
a substantial demonstration that an increase in costs is significant and
unavoidable and is not offset by compensating benefits can an otherwise
negotiable matter be found to violate the agency's right to determine
its budget under section 7106(a) of the Statute." Wright-Patterson, 2
FLRA at 608. The Agency has failed to make any such showing here.
The Agency also fails to establish that the award is contrary to
management's right to make contracting out determinations under section
7106(a)(2)(B) or that it is contrary to law and regulations concerning
procurement actions. In this regard, the Agency fails to cite any
statutory or regulatory provision which would prohibit it from
exercising its discretion to provide a photocopy machine for the Union
to be used for labor-management relations activities. The award does
not require any procurement, installation or service which does not
comport with the cited statutory and regulatory requirements and
restrictions.
Moreover, the Arbitrator merely required the Agency to provide the
Union a type of photocopy machine equivalent to the one provided the
Union on June 10, 1980, based on his interpretation of the parties'
agreement. Thus, the thrust of the Agency's exception constitutes
nothing more than disagreement with the Arbitrator's interpretation and
application of the pertinent provision of the parties' collective
bargaining agreement. It is well established that such disagreement
does not provide a basis for finding an award deficient. For example,
U.S. Army Corps of Engineers, Kansas City District and National
Federation of Federal Employees, Local 29, 22 FLRA No. 15 (1986), slip
op. at 3. Accordingly, this exception must be denied.
V. THIRD EXCEPTION
A. Contentions
The Agency contends that the portion of the award which requires the
Agency to pay travel and per diem and to grant official time for a
number of employees to attend union-sponsored labor-management relations
training on July 11, 1986, is contrary to section 7121(b)(3)(C) of the
Statute. In support of its contention, the Agency argues that because
management filed a grievance concerning the official time and travel and
per diem claims of the employees, the Arbitrator's award in this
proceeding interferes with its right under section 7121(b)(3)(C) to file
such a grievance. The Agency further argues that it did not deny the
requested official time and travel and per diem expenses but, rather,
conditionally approved the requests pending the outcome of its grievance
to determine the legality of the travel and per diem expenses, the
appropriateness of the official time, and the effect of the award of
another arbitrator, Arbitrator Cushman, assertedly providing a
diffrerent interpretation of the same provisions of the parties'
agreement in another case.
In its opposition, the Union acknowledges that the Agency approved
official time and travel and per diem for the employees for the one-day
training program. The Union maintains that management approved the
requests pursuant to an earlier award by Arbitrator Smith in this
dispute, in which the Arbitrator determined that Union officials were
entitled to a reasonable amount of official time for labor-management
relations training in grievance processing, arbitration and unfair labor
practices. The Agency filed an exception to that earlier award of
Arbitrator Smith, essentially alleging that the award was inconsistent
with the award of another arbitrator, Arbitrator Cushman. That
exception was denied by the Authority on September 16, 1985. American
Federation of Government Employees and Social Security Administration,
Case No. O-AR-969. The Union argues that the Agency's grievance is an
improper attempt to relitigate the same issue.
B. Analysis and Conclusion
We find that the Agency has failed to establish that the Arbitrator's
award is contrary to section 7121(b)(3)(C) of the Statute. As noted
above, the dispute submitted to this Arbitrator required the application
of the official time provisions of the parties' agreement to the
specific grievances pending in the various regions of the Agency, which
is precisely what the Arbitrator did in his award of official time and
travel and per diem expenses for the employees for labor-management
relations training. Thus, the Arbitrator clearly resolved part of the
dispute before him. The propriety of the Agency's attempt to raise
essentially the same aspect of the dispute in another grievance is not
before the Authority and would have to be resolved in another
proceeding. In the case before us, the essence of the Agency's
exception constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of the parties' collective
bargaining agreement in resolving the dispute before him and as such
does not provide a basis for finding the award deficient. Accordingly,
this exception must be denied.
VI. FOURTH EXCEPTION
A. Contentions
The Agency contends that the portions of the award granting employees
compensation at straight-time rates as a remedy for wrongfully denied
official time are contrary to section 7131(d) of the Statute because
there was no evidence that the Agency actually denied the requests for
official time.
B. Analysis and Conclusion
We find 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, 25 FLRA No. 12 (1987), request for reconsideration
denied (Feb. 3, 1987), 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 including
that there had been a wrongful denial of official time. Consequently,
the Agency has failed to establish that the bench awards granting the
grievants compensation for the amount of time performing
representational activities which the Arbitrator ruled should have been
performed on official time are contrary to law. Accordingly, this
exception must be denied.
VII. FIFTH EXCEPTION
A. Contentions
The Agency contends that the Arbitrator exceeded his authority
because he ruled on claims which were not before him and which occurred
after the agreed upon claims period.
B. Analysis and Conclusion
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 various regional offices of the Agency that 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 with the
Arbitrator's resolution of the issues before him and generally with his
interpretation and application of the parties' collective bargaining
agreement. This disagreement provides no basis for finding an award
deficient under the Statute. Social Security Administration, 25 FLRA
No. 12, slip op. at 5.
With regard to the Agency's assertion that the Arbitrator exceeded
his authority by ruling on claims which occurred after the agreed upon
claims period, it is clear from the record, and as previously noted by
the Authority, 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 and that
his awards were to be prospectively as well as retroactively applied.
Social Security Administration, 25 FLRA No. 12, slip op. at 4-5. It is
therefore clear that the Agency's assertions constitute nothing more
than disagreement with the Arbitrator's resolution of the issues before
him and generally with his interpretation and application of the
parties' collective bargaining agreement. This disagreement provides no
basis for finding an award deficient under the Statute. Accordingly,
this exception must be denied.
VIII. DECISION
For the reasons stated above, the award of tuition, fees, official
time, and travel and per diem to Mary Ellen Shea in order for her to
attend Harvard University is set aside. The Agency's exceptions to the
other bench awards of the Arbitrator in this proceeding are denied.
Issued, Washington, D.C., February 3, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The employee initially requested leave without pay (LWOP) to
attend the Harvard program, pursuant to a provision in the parties'
collective bargaining agreement assertedly providing that LWOP for such
purposes will normally be approved. The Agency denied the request. The
Union argued before the Arbitrator that the denial of LWOP was contrary
to the parties' agreement and past practice. While the Agency indeed
may have been obligated to grant the request under its agreement with
the Union, see Local 1917, American Federation of Government Emmployees
and United States Immigration and Naturalization Service, Eastern
Region, 13 FLRA 77 (1983), it does not appear that the Arbitrator ruled
on the employee's entitlement to LWOP in this proceeding. That issue
therefore is not before the Authority.
(2) In view of our decision, it is not necessary to address the
Agency's other contentions concerning this award.