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29 FLRA No. 125

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES

             Union

      and

SOCIAL SECURITY ADMINISTRATION

             Agency

Case No. O-AR-1336

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 (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. 1

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. Subsequent to resolving a number of issues by bench decisions, the Arbitrator held hearings at the Union's request to address whether the Agency had in fact complied with his earlier bench decisions. The exceptions in this case have been filed to three cease and desist orders rendered on March 30, 1987. In these orders the Arbitrator generally ruled that the Agency had failed to comply with certain of his earlier awards, reaffirmed his earlier awards, and ordered the Agency to cease and desist from its noncompliance.

III. First Exception

A. Contentions

The Agency contends that each of the Arbitrator's cease and desist orders is deficient because the Arbitrator denied it a fair hearing and exceeded his authority, the orders do not draw their essence from the parties' collective bargaining agreement, and the Arbitrator erred in his factual findings.

B. Analysis and Conclusions

Except as otherwise concluded in this case, we find that the Agency has failed to establish that the Arbitrator's award is deficient. The Agency's assertions constitute nothing more than disagreement with the Arbitrator's findings of fact and interpretation and application of the parties' agreement. In essence, they are an attempt to relitigate the matter before the Authority. Such assertions provide no basis for finding the orders deficient under the Statute. For example, 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); American Federation of Government Employees and Social Security Administration, 25 FLRA No. 12 (1987), request for reconsideration denied, 25 FLRA No. 32 (1987); Department of Health and Human Services, Social security Administration and American Federation of Government Employees, AFL-CIO, 25 FLRA No. 33 (1987), request for reconsideration denied, 27 FLRA No. 22 (1987). The Agency's exception must be denied.

IV. Second Exception

The Members disagree regarding the second exception to the Arbitrator's Award. The Decision on this exception immediately follows this Decision, along with Member McKee's dissent.

V. Third Exception

In the second cease and desist order the Arbitrator ordered the Agency to:

cease and desist from improperly denying official time, restricting access to photocopy facilities, restricting space and facilities, improperly disciplining or otherwise harassing/retaliating against Union lead counsel and her Technical Assistants in the performance of their legitimate representational duties.

A. Contentions

The Agency makes a number of specific contentions in regard to various portions of this order.

1. The Agency must cease and desist from improperly denying official time.

The Agency contends that this portion of the order is contrary to management's reserved rights under section 7106 to assign work, assign and direct employees, to determine the numbers, types and grades of employees assigned to its organizational subdivision, work project or tour of duty even in emergencies. The Agency incorporates by reference its arguments in support of similar exceptions to another award of Arbitrator Smith filed with the Authority and docketed as Case No. O-AR-1352. In its exceptions to the award of Arbitrator Smith in Case No. 1352 the Agency argues that the Arbitrator ruled that the Union lead counsel, Gayla Reiter, would receive 100% of official time for the life of the parties' agreement regardless of what is reasonable for the representational duties involved or the Agency's workload requirements.

2. The Agency must cease and desist from restricting access to photocopying facilities, space and facilities.

The Agency contends that in this portion of the order the Arbitrator exceeded his authority because the order was neither based on a violation of the parties' agreement nor on an established past practice of providing Union officials with a photocopy machine.

3. The Agency must cease and desist from improperly disciplining or otherwise harassing/retaliating against Union lead counsel and her Technical Assistants in the performance of their legitimate representational duties.

The Agency contends that this portion of the order is deficient on three grounds: (1) it does not draw its essence from the parties' agreement because it substitutes the subjective standard of "improper" for the contractual standard of "just cause" for discipline; (2) it is contrary to section 7106 (a) (2) (A) of the Statute because it does not allow the Agency to discipline employees who are union officials; and, (3) the Arbitrator exceeded his authority because the order attempts to protect unknown and unnamed employees who have not filed grievances.

B. Analysis and Conclusions

We find that the grounds asserted by the Agency in this exception for finding the order deficient are without merit. More specifically:

1. We find that the Agency has failed to establish that the Arbitrator's order is contrary to section 7106 of the Statute. In this portion of the order, the Arbitrator ordered the Agency to cease and desist from improperly denying official time under the terms of the parties' collective bargaining agreement which was negotiated consistent with section 7131(d) of the Statute. We have specifically held that section 7131(d) of the Statute "carves out an exception" to management's right to assign work and that official time negotiated under section 7131(d) does not violate management's right to assign work notwithstanding other provisions of the Statute. See Military Entrance Processing station Los Angeles, California and American Federation of Government Employees, Local 2866, AFL-CIO, 25 FLRA No. 57 (1987), slip op. at 4. See also Department of Health and Human Services, social security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA No. 22 (1987), slip op. at 4.

It is clear that the Arbitrator did not order the Agency to approve any and all requests for official time. Rather, it is clear that the Arbitrator ordered the Agency to approve only proper requests for official time in accordance with its obligation under the collective bargaining agreement as interpreted by the Arbitrator. The award does not in any way affect the Agency's rights to direct and assign employees, assign work, to establish tours of duty, or to determine the numbers, types and grades of employees as the Agency contends. Moreover, the Agency has failed to make any arguments in sup-port of its contentions that the order violates the provisions of section 7106 other than the arguments it made in support of its exceptions in Case No. O-AR-1352. The portions of the Arbitrator's award excepted to in Case No. O-AR-1352, and which the Agency's arguments in that case support, are not part of the cease and desist order before us in this case and we decline to address them. Accordingly, this contention must be denied.

2. We find that the Agency has failed to establish that the Arbitrator's order is deficient as alleged. Contrary to the Agency's argument that the Arbitrator ordered that a photocopy machine must be provided to the Union, in this portion of the order the Arbitrator required that the Agency must cease and desist from restricting access to photocopy facilities based on his previous interpretation of the parties' agreement and on his findings that the parties' established past practice allowed the Union unrestricted access to the office photocopy machine. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA No. 54 (1987), slip op. at 6-7. Moreover, the Agency acknowledges in its exception that the Union representatives in this case have been permitted to use the photocopy facilities and that Union counsel was given excess space. Agency Statement in Support of Exceptions at 15. Thus, the thrust of the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the pertinent provisions of the parties' collective bargaining agreement. It is well established that such disagreement does not provide a basis for finding an award deficient. Department of Health and Human Services, social Security Administration and American Federation of Government Employees AFL-CIO, 25 FLRA No. 33 (1987), slip op. at 5, request for reconsideration denied, 27 FLRA No. 22 (1987). Accordingly, this contention must be denied.

3. We find that the Agency has failed to establish that the order is deficient as alleged. In regard to the Agency's argument that the order does not draw its essence from the parties' collective bargaining agreement because it substitutes the subjective standard of "improper" for the contractual standard of "just cause" for discipline, it is clear that the Agency has misconstrued the Arbitrator's order. Rather than substituting the standard of improper for the standard of just cause for discipline in the parties' agreement, the order merely requires the Agency to apply the contractual just cause standard properly, that is, in accordance with the parties' collective bargaining agreement. We conclude that the Agency's allegation constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement and, therefore, that it provides no basis for finding the order deficient.

In regard to the Agency's argument that the order is contrary to section 7106 (a) (2) (A) of the Statute, the Agency has again misconstrued the Arbitrator's order. The order does not in any way preclude the Agency from disciplining employees who are union officials. Rather, the order, as noted previously, only requires that any discipline must be in accordance with the terms of the parties' agreement. Again, the Agency's allegation constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement and therefore, does not provide a basis for finding the award deficient.

In regard to the Agency's argument that the Arbitrator exceeded his authority because he attempts to protect unknown and unnamed employees who have not filed grievances, the Agency has misconstrued the order. The order clearly requires the Agency to cease and desist from improperly disciplining or otherwise harassing or retaliating against Union lead counsel and her technical assistants. The award in no manner applies to any unknown or unnamed individuals. Accordingly, the Agency has failed to establish the order is deficient as alleged and its contentions must be denied.

Accordingly, this exception must be denied.

VI. Fourth Exception

In the third cease and desist order the Arbitrator ordered that the Agency:

cease and desist from taking any action against Mary Ellen Shea pending a full and complete presentation of the matter to the Arbitrator at the earliest possible date. 2

A. Contentions

The Agency contends the Arbitrator's order is deficient on three grounds: (1) the Arbitrator denied the Agency a fair hearing because the Arbitrator entered the order based upon ex parte communication with the Union and without giving the agency an opportunity to present its case; (2) the order is contrary to section 7106(a)(2)(A) because it prevents the Agency from acting at all with respect to disciplining Ms. Shea for her failure to return to work as ordered; and (3) the Arbitrator exceeded his authority because he entered the order without having found a violation of the collective bargaining agreement or having the issue of Ms. Shea's entitlement to LWOP properly before him.

B. Analysis and Conclusion

We find that the grounds asserted by the Agency in this exception for finding the award deficient are without merit. More specifically:

1. We find that the Agency has failed to establish that it was denied a fair hearing. The thrust of the Agency's exception, that it was denied a fair hearing because the Arbitrator entered the order based on an ex parte communication with the Union and without giving the Agency an opportunity to present its case, is disagreement with the manner in which the Arbitrator conducted the hearing. It is well established that an Arbitrator has considerable latitude in the conduct of a hearing. The fact that an arbitrator conducted the hearing in a manner which one party finds objectionable does not support a contention that the Arbitrator denied the party a fair hearing. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 547 24 FLRA No. 93 (1986). Accordingly, this contention must be denied.

2. We find that the Agency has failed to establish that the order is contrary to section 7106 (a)(2)(A). The Arbitrator's order requires the Agency to cease and desist from taking any action against Ms. Shea "pending a full and complete presentation of the matter to the Arbitrator." In our view, nothing in the Arbitrator's order prevents the Agency from exercising its right under section 7106 (a)(2)(A). Rather, the order merely stays any Agency action against Ms. Shea pending the outcome of his review and determination on Ms. Shea's right to LWOP under the parties' agreement. The Authority has consistently held in resolving negotiability disputes that proposals which stay management actions pending the completion of the negotiated grievance procedure or other applicable appellate procedures are within the duty to bargain under the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA No. 26 (1987) (Provision 4), slip op. at 8; American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34 (1986) (Proposal 2), slip op. at 3-8. Since the Arbitrator's order in this case does not interfere with the Agency's exercise of its rights under section 7106 (a)(2)(A), this contention must be denied.

3. We find that the Agency has failed to establish that the Arbitrator exceeded his authority. There is no support in the record for the contention that the Arbitrator ruled on a matter which was not before him as part of the overall proceeding. Contrary to the Agency's contention, Ms. Shea's entitlement to LWOP in lieu of official time was specifically put in issue and addressed by the parties in the course of the overall arbitration proceeding. See Arbitrator's Order Directing the Social Security Administration to Cease and Desist from Certain Activities (#3) at 1, paragraph 3; 25 FLRA No. 33, slip op. at 2 n.l. Moreover the Arbitrator ordered the Agency to cease and desist from taking any action against Ms. Shea until he had an opportunity to rule upon a provision in the parties' agreement which assertedly required LWOP in similar circumstances and to determine its applicability to the facts of the case before him. The Agency's exception constitutes nothing more than disagreement with the Arbitrator's resolution of the issue of Ms. Shea's entitlement to LWOP and generally with his reasoning and conclusions based on the evidence and testimony before him. Consequently, the contention does not provide a 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, 13 FLRA 108 (1983).

VII. Decision

For the reasons stated above, the Agency's exceptions are denied.

Issued, Washington, D.C., November 6, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION ON EXCEPTION 2

As it relates to this exception, the Arbitrator made the following findings and entered the following order:

(1) S.S.A. and A.F.G.E.'s agreement to arbitrate all official time issues via A.A.A. case 74-30-0228-82 requires this arbitrator to resolve all official time disputes covered by the 31 broad issues of the original grievance which arise during the term of the parties' collective bargaining agreement.

(2) All grievances and/or disputes (including disciplinary actions taken as a result of official time disputes) arising concerning application of the aforementioned official time provisions and which are not resolved during the grievance procedure, must be referred to this arbitrator for resolution under A.A.A. 74-30-0228-82.

Whereupon, the following order is entered:

It is hereby ordered that the Social Security Administration cease and desist from selecting arbitrators to: (a) resolve contractual official time language, and (b) resolve any individual grievances or disputes involving official time which have been placed before this arbitrator in A.A.A. case 74-30-0228-82. All questions regarding application of official time contractual language which has been interpreted by this Arbitrator must be heard by this Arbitrator.

A. Contentions of the Parties

The Agency contends that the Arbitrator's order is deficient on three grounds: (1) the Arbitrator was biased because he refused to permit the Agency to select another arbitrator to determine the arbitrability of the Agency-filed grievances and declared himself "to be a permanent umpire of all pending and future grievances filed by the agency," Agency Statement in Support of Exceptions at 10; (2) the Arbitrator exceeded his authority because he ordered the Agency to cease and desist from selecting separate arbitrators to resolve Agency-filed grievances; and, (3) the order does not draw its essence from the parties' collective bargaining agreement because the agreement provides that only the grieving party may invoke arbitration and the Arbitrator's order allows the Union to invoke arbitration in Agency-filed grievances.

B. Analysis and Conclusions

The Agency contends that the Arbitrator's award is deficient because the Arbitrator was biased, and cites in support of its contention the court's decision in Pitta v. Hotel Association of New York City, 806 F.2d 419 (2d Cir. 1986). Under section 7122 (a) (2), the Authority will find an arbitration award deficient on "grounds similar to those applied by Federal courts in private sector labor-management relations." For the reasons discussed below, we find that the Arbitrator's cease and desist order must be set aside.

In Pitta, a dispute arose over whether the appointment of a "permanent umpire" under a collective bargaining agreement had been properly terminated. Id. at 420. The permanent umpire had decided that his appointment had not been terminated. As stated by the court, the appeal from a lower court ruling presented "the issue, rarely litigated, whether an arbitrator may resolve a grievance that requires him to interpret his own contract of employment to decide if he has been validly dismissed." Id. After finding that the dispute was arbitrable, the court vacated the arbitration award and directed the parties to appoint another arbitrator to hear and decide the issue. The court stated as follows:

Because the subject of the arbitrable grievance directly concerns the arbitrator's own employment for what may be an extended period of time, impermissible self-interest requires his disqualification. In assessing "evident partiality," we need not inquire into whether (the arbitrator) showed actual rather than merely apparent bias. The relationship between a party and the arbitrator may, in some circumstances, create a risk of unfairness so inconsistent with the basic principles of justice that the arbitration award must be automatically vacated.

Id. at 423-24.

The court emphasized the following:

We do not suggest that an arbitrator must recuse himself from every decision that might have any bearing on his compensation. Carried to extremes, such a rule would preclude an arbitrator, compensated on a per diem basis, from adjudicating any request that would continue a hearing an additional day, such as a request to call additional witnesses. Such trivial concerns are to be contrasted with a dispute concerning the employment of a particular arbitrator for a considerable period of time at a substantial salary.

Id.

In this case, it is clear that the Arbitrator's order is intended to not only preclude the Agency from filing and pursuing grievances over official time, it is also intended to require (1) all disciplinary matters relating to the official time dispute to be heard by the Arbitrator and (2) all &questions' regarding official time language to be heard by the Arbitrator. Further, as is apparent from the Arbitrator's findings, these requirements apply "during the term of the parties' collective bargaining agreement." The Arbitrator based his order on the parties' "agreement to arbitrate all official time issues" in A.A.A. case 74-30-0228-82.

Like the situation in Pitta, the dispute in this case concerns the Arbitrator's own employment for the duration of the collective bargaining agreement. Thus, we conclude that the nature of the dispute requires that the Arbitrator's order be set aside.

In reaching our conclusion, we emphasize four points. First, the issue in this case is one of first impression and is fundamentally different, in our view, from other issues involving an arbitrator's authority to hear and decide cases. Second, like the court in Pitta, our decision should not be interpreted to require the disqualification of an arbitrator in every circumstance where the arbitrator's ruling may affect his compensation. Third, we do not here find that the Arbitrator was actually biased in his interpretation of the parties' agreement to arbitrate in A.A.A. case 74-30-0228-82. Finally, we do not reach this conclusion because we disagree with the Arbitrator's interpretation of the parties' agreement. In our view, the record before us does not permit an evaluation of the Arbitrator's conclusion. moreover, the deficiency in this case does not relate to the validity of the Arbitrator's determination. It relates to his disqualification from addressing the matter of his authority by reason of his impermissible self-interest.

Section 7122 of the Statute provides that if the Authority finds that an arbitration award is deficient, the Authority "may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations." In fashioning appropriate action in this case we recognize that the parties' dispute over the official time provisions of their collective bargaining agreement is one of long-standing and evident rancor. Further, it is one which has received much attention from third parties. As such, we believe that the parties should expend all available efforts to resolve this dispute bilaterally. At a minimum, the parties should attempt agreement on the processing of this and related cases. It is our hope that these discussions would resolve not only the issue of how these cases are to be processed, but also the underlying issue of how official time matters may be resolved without resort to arbitration.

We also recognize that the parties may be unable or unwilling to reach agreement on these matters. In that event, the dispute must be resolved by a third party. Similar to the court's finding in Pitta, we find that the dispute over the Arbitrator's authority is arbitrable. Accordingly, the parties are directed to submit the dispute concerning the nature and extent of the Arbitrator's authority to another neutral arbitrator. Further, we direct that this process be accomplished in an expeditious matter. To that end, we direct the parties to select an arbitrator within 30 days from the date of this Decision, and, additionally, to request that arbitrator to schedule proceedings so as to resolve the dispute as quickly as possible. We urge the parties to consider using the services of the Federal Mediation and Conciliation Service and the American Arbitration Association in this process.

Issued, Washington, D.C., November 6, 1987

Jerry L. Calhoun Chairman

Henry B. Frazier III Member

FEDERAL LABOR RELATIONS AUTHORITY

Member McKee, dissenting, in part:

I disagree with the conclusion of the majority that the nature of the dispute over the Arbitrator's cease and desist order requires that we set aside the entire order. I also disagree with the majority's disposition of the dispute, most particularly directing the parties to submit the dispute concerning the nature and extent of the Arbitrator's authority in this matter to another arbitrator if the parties are unable or unwilling to resolve the dispute.

I believe that we have an obligation under the Statute to decide the Agency's exception alleging that the Arbitrator exceeded his authority, rather than directing the parties to refer the question of the extent of that authority to another arbitrator.

Among the duties of the Authority under section 7105 of the Statute is the duty to resolve exceptions to arbitration awards. Section 7105(a)(2) expressly provides: "The Authority shall, to the extent provided in this chapter, and in accordance with (its) regulations . . . (H) resolve exceptions to arbitrators' awards under section 7122 . . . ." In section 7122, Congress provided for review of exceptions to an arbitrator's award by the Authority, not by other arbitrators. The exclusivity of the Authority's review is further reflected in section 7123 and in the legislative history. In section 7123, Congress excluded judicial review of awards except in a limited category of cases. The legislative history further indicates Congress' intent that only the Authority is authorized to review awards and that even Authority review is to be very limited. The Conference Report accompanying the bill which was signed into law as the Statute provides:

The Authority will only be authorized to review the award of the arbitrator on very narrow grounds similar to the scope of judicial review of an arbitrator's award in the private sector. In light of the limited nature of the Authority's review, the conferees determined it would be inappropriate for there to be subsequent review by the court of appeals in such matters.

H. Rep. No. 95-1717, 95th Cong. 2d Sess. 153 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Managment Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7 at 821 (1987).

I believe that referring the question of Arbitrator Smith's jurisdiction or authority to another arbitrator is tantamount to referring the Agency's exception that Arbitrator Smith exceeded his authority to that other arbitrator. It also effectively subjects Arbitrator Smith's award in this matter to the review and judgment of the other arbitrator. To me, such a referral is inconsistent with our obligation under the Statute to decide exceptions and to determine whether or not an award is deficient under the Statute. I do not believe the role of the Authority is altered simply because of the size and complexity of the dispute.

As a practical matter, it seems to me that the procedure established by the majority for resolving the Agency's challenge to the Arbitrator's authority will unnecessarily delay final resolution of the dispute. If the parties are unable or unwilling to resolve the dispute, they will require time to agree upon an arbitrator. That arbitrator will require time to prepare for, hear and decide the dispute. Even expeditiously accomplished, that process will result in further delay. It seems likely that the party aggrieved by the new arbitrator's determination will file exceptions with the Authority. We will then be faced with the same question we are faced with today. Admittedly, the question would come to us with a record developed by the new arbitrator, but the state of that record is not assured.

I believe that the present record in this protracted proceeding is adequate to permit us to rule with an acceptable degree of confidence. If the majority is not satisfied with the record, rather than seek a separate, uncontrolled record from another arbitration proceeding, I would prefer that we supplement the existing record through our own processes, by seeking additional briefs and supporting documents from the parties under section 2429.26 of our Rules and Regulations and/or requesting oral argument by the parties pursuant to section 2429.6 of the Regulations.

As to the merits of the question of Arbitrator Smith's authority in this matter, I conclude that he has authority only to decide claims and grievances that are part of A.A.A. case 74-30-0228-82. The record establishes that the case encompasses individual claims and grievances submitted during three claims periods, disputes related to compliance with the Arbitrator's bench awards concerning such claims and grievances, and disputes related to the proceedings before the Arbitrator in the case.

The first claims period as established by the parties encompassed the period between June 11, 1982, the date the parties' National Agreement was executed, and June 1984. See Memorandum of Understanding dated May 1984, Exhibit 5, Case O-AR-1207. American Federation of Government Employees and Social Security Administration, 25 FLRA 173 (1987), request for reconsideration denied, 25 FLRA 477 (1987). The second claims period as established by the parties encompassed the period between June 12, 1984, and September 10, 1985. See Memorandum of Understanding dated July 1985, Exhibit 8, Case No. O-AR-1207, 25 FLRA 173; Letter from Justin Smith to American Federation of Government Employees and Social security Administration, dated May 23, 1986, Exhibit 13, Case No. O-AR-1207, 25 FLRA 173.

A third claims period was established by the Arbitrator at the request of the Union "to allow individuals adversely affected by any improper official time denial or any other issue covered by this grievance from June 11, 1982 through the close of the claims period (9/12/86) to submit a claim." Arbitrator's Order dated July 14, 1986, at 2, Exhibit 15, Case No. O-AR-1207, 25 FLRA 173. This claims period was established because of the Arbitrator's continuing concern with what he found to be the Agency's (1) pattern of noncompliance with his award, (2) attempts to litigate and relitigate the Union's requests for official time, (3) refusal to proceed to arbitration and its unilateral withdrawal from arbitration proceedings, (4) aborted "offers . . . to pay the claims," and (5) general refusal to adhere to the parties' collective bargaining agreement. Arbitrator's Order dated July 14, 1986, at 2, Exhibit 15, Case No. O-AR-1207, 25 FLRA 173; Letter from Justin Smith dated May 23, 1986, Exhibit 13, Case No. O-AR-1207, 25 FLRA 173.

The Agency conceded that the issue of whether certain claims and disputes were subject to resolution by the Arbitrator was "procedural only" and, therefore, invited the Arbitrator to determine the extent of the claims periods based on the merits of the case and the record before him. See July 8, 1986 transcript, Volume III, at 127-28, 138. See also, July 8, 1986 transcript, Volume III, at 42-43. Based on the evidence presented at the July 8, 1986 hearing, the Arbitrator responded to the Union's request for an additional claims period and, as noted, established the third claims period ending September 12, 1986. In my view, the claims periods establish the extent of the Arbitrator's jurisdiction. Therefore, I would conclude that the Agency is merely disagreeing with the Arbitrator's findings of fact, his evaluation of the evidence and testimony before him, his reasoning and conclusions, and generally with his interpretation and application 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, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983).

The Agency's subsequent exceptions to the Arbitrator's establishment of a third claims period on the ground that he exceeded his authority because he was functus officio and ruled on claims which were not part of he grievance before him were denied by the Authority. In denying the exceptions, the Authority first rejected the Agency's argument that because it had agreed to pay certain claims based upon an earlier award of the Arbitrator, the dispute was ended, the Arbitrator's function was accomplished, and his jurisdiction exhausted. 25 FLRA 176. The Authority specifically stated:

(i)t 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 with 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.

25 FLRA 177.

Based on the record before me and the Authority's precedent in these cases, I conclude that the Arbitrator has jurisdiction to resolve the specific individual and Union claims and grievances which were filed prior to September 12, 1986, and related issues, which are part of A.A.A. Case 74-30-0228-2. Therefore, in my view, the Arbitrator has jurisdiction to resolve (1) any specific claims and grievances filed before September 12, 1986; (2) any questions which arise as to those claims and grievances and concern compliance with his awards; and (3) any questions related to the overall dispute, such as questions concerning entitlement of Union representatives in the matter to office space, telephone and postage expenses, and access to photocopy equipment.

Therefore, I believe that to the extent the Arbitrator is merely asserting his jurisdiction over such matters, the disputed cease and desist order does not exceed the Arbitrator's authority in A.A.A. Case 74-30-0228-82. Thus, the Arbitrator does not exceed his authority by ordering the Agency to cease and desist from seeking different rulings from other arbitrators on specific claims or grievances he has already specifically ruled upon. That conclusion is consistent with the Statute. Under the Statute, the proper procedure for contesting an arbitrator's award is through the filing of timely exceptions with the Authority, not through seeking a different result in the same dispute by a different arbitrator. This conclusion is also consistent with the doctrine of res judicata, which precludes relitigation of disputes that have already been decided on the merits. Further, the Arbitrator also does not exceed his authority by ordering the Agency to cease and desist from seeking rulings from other arbitrators on any remaining claims or grievances that are still part of A.A.A. Case 74-30-0228-82 as described above.

However, to the extent that the Arbitrator is asserting jurisdiction over all disputes between the parties concerning official time, including all grievances filed by the Agency and all grievances which might be filed by individual employees or either party after September 12, 1986, involving interpretation and application of the official time provisions of the parties' agreement, the Arbitrator has exceeded his authority. Grievances and disputes which are not properly a part of A.A.A. Case 74-30-0228-82, that is, those claims filed prior to September 12, 1986, cannot be added to the case by a party unilaterally or by the Arbitrator. The Arbitrator does not have jurisdiction to decide such grievances.

Thus, the Arbitrator is without authority to preclude the Agency from selecting separate arbitrators to resolve all Agency-filed grievances concerning official time, to compel arbitration of all official time grievances by himself, or to decide all questions regarding the application of contractual official time language interpreted by the Arbitrator now and for the life of the parties' agreement. To that extent, the award is deficient and I would modify it to provide that the Agency shall:

cease and desist from selecting separate arbitrators to resolve any individual grievances or disputes which have been placed before this Arbitrator in A.A.A. case 74-30-0228-82. All questions regarding those particular grievances or disputes, including questions regarding awards by this Arbitrator concerning specific claims in this case which were filed prior to September 12, 1986, must be heard by this Arbitrator.

Additionally, I would deny the Agency's other exceptions to this cease and desist order based on Authority precedent. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 22 FLRA 154 (1986), request for reconsideration dented, (August 15, 1986); American Federation of Government Employees and Social Security Administration, 25 FLRA 173 (1987), request for reconsideration denied, 25 FLRA 477 (1987); Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 25 FLRA 479 (1987), request for reconsideration denied, 27 FLRA 114 (1987).

Issued, Washington, D.C.,November 6, 1987

Jean McKee, Member

Footnotes:

Footnote 1: In its opposition, the Union requested that the Authority strike as untimely the Agency's supplemental statement in support of its exceptions and also addressed the merits of the exceptions. Because the supplemental statement does not add any ground on which review of the award is requested other than those grounds raised in the Agency's timely filed exceptions, the Union's request is denied and we will consider the Agency's supplemental statement.

Footnote 2: Ms. Shea had initially requested leave without pay (LWOP) to attend Harvard University to obtain a master's degree in public administration. The Agency denied the request for LWOP although the parties' agreement assertedly provides that LWOP for such purposes will normally be approved. Ms. Shea then requested official time which the Agency approved conditioned upon the issue of entitlement to LWOP or official time being resolved at arbitration. The parties submitted the issue to arbitration. The Union sought tuition, fees, official time, and travel and per diem expenses for Ms. Shea and alternatively argued that the denial of LWOP was contrary to the parties' agreement and past practice. The Arbitrator granted the remedy requested by the Union and ordered that Ms. Shea attend the program on official time. The Agency filed exceptions to the award with the Authority. In resolving the Agency's exceptions, the Authority set aside the award noting that it was not reaching the issue of Ms. Shea entitlement to LWOP since the Arbitrator had not ruled on it. 25 FLRA No. 33, slip op. at 2 n.l. After issuance of our decision, the Union requested that the arbitration hearing be reconvened to address, among other things, Ms. Shea's entitlement to LWOP. The Arbitrator's order in this case was issued as an interim measure.

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