American Federation of Government Employees, New York-New Jersey Council of District Office Locals, Social Security Administration (Union) and Department of Health and Human Services, Social Security Administration, District Office Operations (Agency)

 



[ v07 p413 ]
07:0413(60)AR
The decision of the Authority follows:


 7 FLRA No. 60
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, NEW YORK-
 NEW JERSEY COUNCIL OF
 DISTRICT OFFICE LOCALS,
 SOCIAL SECURITY ADMINISTRATION
 Union
 
 and
 
 DEPARTMENT OF HEALTH
 AND HUMAN SERVICES,
 SOCIAL SECURITY ADMINI-
 STRATION DISTRICT OFFICE
 OPERATIONS
 Agency
 
                                            Case No. 0-AR-212
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR DANIEL HOUSE FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A))
 (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE OVER THE
 "INTERPRETATION OF THE LANGUAGE IN THE PARTIES' OFFICIAL TIME ARTICLE
 CONCERNING GRIEVANCE VICE PRESIDENTS." /1/
 
    THE ARBITRATOR STATED THE ISSUES BEFORE HIM AS FOLLOWS:
 
    UNDER THE AGREEMENT:
 
    1.  (A) DOES THE MANAGEMENT HAVE THE RIGHT TO REFUSE TO GRANT
 "OFFICIAL TIME ON AN AS
 
    NEEDED BASIS" TO A GRIEVANCE VICE CHAIRMAN AS THAT TIME IS ASSESSED
 BY THE LOCAL UNION
 
    PRESIDENT?  (B) DOES "AS NEEDED" IN SECTION 6(E) MEAN THE SAME THING
 AS IT DOES IN SECTIONS
 
    6(A), (B) AND (C)?  (C) IS IT INTENDED THAT THE GRANTING OF "BLOCKS
 OF TIME" TO A GRIEVANCE
 
    VICE PRESIDENT BY PROHIBITED?
 
    2.  MAY THE LOCAL UNION PRESIDENT BE REQUIRED BY MANAGEMENT TO GIVE
 MORE DETAILED
 
    INFORMATION AS TO THE BASIS FOR HIS ASSESSMENT OF THE AMOUNT OF SUCH
 OFFICIAL TIME NEEDED FOR
 
    THE GRIEVANCE VICE CHAIRMAN THAN A LISTING OF THE CATEGORIES OF THE
 REPRESENTATIONAL FUNCTIONS
 
    HE HAD ASSIGNED TO THAT GRIEVANCE VICE CHAIRMAN?
 
    3.  MAY THE LOCAL UNION PRESIDENT ASSIGN, FOR PERFORMANCE ON SUCH
 OFFICIAL TIME,
 
    REPRESENTATIONAL FUNCTIONS OTHER THAN "GRIEVANCE AND EEO COMPLAINTS
 AND ACTIONS OF THIS SORT"?
 
    4.  DID MANAGEMENT VIOLATE THE AGREEMENT IN FAILING TO ALLOW (THE
 GRIEVANT) THE OFFICIAL
 
    TIME AS SET FORTH IN (THE LOCAL UNION PRESIDENT'S) JANUARY 3, 1980
 LETTER?  IF SO, WHAT SHALL
 
    BE THE REMEDY?
 
    WITH RESPECT TO ISSUE NUMBER "4," THE ARBITRATOR CONCLUDED:
 
    MANAGEMENT DID NO VIOLATE THE AGREEMENT IN FAILING TO ALLOW (THE
 GRIEVANT) THE OFFICIAL
 
    TIME AS SET FORTH IN (THE LOCAL UNION PRESIDENT'S) JANUARY 3, 1980
 LETTER.
 
    AS TO ISSUES "1," "2" AND "3," THE ARBITRATOR NOTED THAT THESE WERE
 "HYPOTHETICAL" AND THAT HE WAS "RELUCTANT TO GIVE ANSWERS TO QUESTIONS
 SUCH AS THESE EXCEPT WHEN THEY ARE PART OF AN ISSUE ARISING OUT OF
 SPECIFIC ACTS BY ONE OR THE OTHER PARTY WHICH ACTS ARE CLAIMED TO HAVE
 BEEN VIOLATIVE OF AN AGREEMENT." HOWEVER, HE NOTED THAT "THE PARTIES,
 EVEN IN THE FACE OF MY EXPRESSED RELUCTANCE DID AGREE THAT THEY WISHED
 ME TO GIVE 'FINAL AND BINDING' ANSWERS TO THE QUESTIONS." THEREFORE, THE
 ARBITRATOR ADDRESSED EACH OF THE FIRST THREE ISSUES.  HIS FINDINGS AND
 CONCLUSIONS AS TO ISSUES "A(A)" AND "2" ARE SUMMARIZED AS FOLLOWS:  /2/
 
    ISSUE 1(A);  THE ARBITRATOR CONCLUDED THAT THE ANSWER WAS "YES" IF
 MANAGEMENT COULD PROVE
 
    IN ADVANCE THAT THE PURPOSES FOR THE OFFICIAL TIME DID NOT MEET THE
 CRITERIA FOR GRANTING SUCH
 
    TIME UNDER THE AGREEMENT OR THAT THE CARRYING OUT OF THE
 REPRESENTATIONAL FUNCTIONS WOULD NOT
 
    TAKE THE AMOUNT OF TIME ASSESSED BY THE UNION.  IN INSTANCES WHERE
 MANAGEMENT COULD NOT MAKE
 
    SUCH PROOF IN ADVANCE, HE FOUND THAT THE PARTIES' AGREEMENT REQUIRES
 THAT THE OFFICIAL TIME BE
 
    GRANTED BY THE ACTIVITY AND THAT ANY ABUSES IN THE USE OF SUCH TIME
 BE DEALT WITH AS
 
    PRESCRIBED BY THE AGREEMENT AND AGENCY INSTRUCTIONS.
 
    ISSUE 2:  THE ARBITRATOR CONCLUDED THAT IF THE QUESTION PRESENTED BY
 THIS ISSUE REFERRED TO
 
    A REQUIREMENT BY MANAGEMENT THAT THE LOCAL UNION PRESIDENT GIVE MORE
 DETAILED INFORMATION AS
 
    TO THE BASIS FOR HIS ASSESSMENT OF THE AMOUNT OF OFFICIAL TIME NEEDED
 PRIOR TO THE GRANTING OF
 
    THE REQUEST FOR OFFICIAL TIME, THE ANSWER IS "NO." HOWEVER, IF THE
 QUESTION REFERRED TO AN
 
    AFTER-THE-FACT REQUIREMENT BY MANAGEMENT IN CONNECTION WITH ITS
 "UNDOUBTED RIGHT (AND
 
    OBLIGATION) TO POLICE THE USE OF GRANTED OFFICIAL TIME," THEN THE
 ANSWER IS "YES."
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD ON ISSUES
 "1(A)' AND "2" UNDER SECTION 7122(A) OF THE STATUTE /3/ AND PART 2425 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425).
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE DISPUTED PORTIONS
 OF THE AWARD VIOLATE SECTION 7106(A)(2)(A) AND (B) OF STATUTE.  /4/ IN
 SUPPORT OF THIS EXCEPTION, THE AGENCY STATES THAT THE AWARD REQUIRES
 THAT MANAGEMENT MUST GRANT OFFICIAL TIME IN THE AMOUNT ASSESSED BY THE
 UNION UNLESS MANAGEMENT CAN PROVE THAT THE PURPOSE IS NOT PROPER FOR
 OFFICIAL TIME OR THAT THE AMOUNT IS UNWARRANTED.  THE AGENCY ARGUES THAT
 AN EXTENSION OF THIS AWARD TO ITS LOGICAL CONCLUSION WOULD NEGATE ITS
 RIGHT TO ASSIGN AND DIRECT EMPLOYEES AND TO ASSIGN WORK.  IN OPPOSITION
 TO THIS EXCEPTION, THE UNION CONTENDS THAT SECTION 7131(D) OF THE
 STATUTE /5/ PROVIDES THE "AUTHORITATIVE BASE" FOR THE AGREEMENT'S
 PROVISION ON OFFICIAL TIME AND THAT THE PROVISION WAS PROPERLY
 INTERPRETED BY THE ARBITRATOR.
 
    IN THE CIRCUMSTANCES OF THIS CASE, THE AGENCY HAS NOT ESTABLISHED
 THAT THE ARBITRATOR'S AWARD NEGATES ITS RIGHT TO ASSIGN OR DIRECT
 EMPLOYEES OR TO ASSIGN WORK.  AS HAS BEEN NOTED, THE PARTIES NEGOTIATED
 A PROVISION PROVIDING FOR THE AMOUNT OF OFFICIAL TIME THAT THE PARTIES
 AGREED WOULD BE GRANTED FOR MATTERS COVERED BY SECTION 7131(D).  WHEN A
 DISPUTE AROSE OVER THE APPLICATION OF THIS PROVISION, THE PARTIES SOUGHT
 THROUGH ARBITRATION AN "INTERPRETATION OF THE LANGUAGE IN THE PARTIES'
 OFFICIAL TIME ARTICLE CONCERNING GRIEVANCE VICE PRESIDENTS." THE
 ARBITRATOR DETERMINED THAT "MANAGEMENT MUST GRANT OFFICIAL TIME IN THE
 AMOUNT ASSESSED BY THE UNION" UNLESS IT COULD PROVE THAT THE PURPOSE WAS
 NOT PROPER OR THE AMOUNT WAS NOT WARRANTED.  THE AWARD DOES NOT CONCERN
 WHEN SUCH OFFICIAL TIME IS ACTUALLY TO BE TAKEN AND DOES NOT CONCERN
 WHAT ACCOMMODATIONS, IF ANY, MAY BE NECESSARY BY THE PARTIES IN THE
 ACTUAL SCHEDULING OF THE AMOUNT OF OFFICIAL TIME ASSESSED.  THEREFORE,
 IT HAS NOT BEEN ESTABLISHED THAT THE AWARD INTERFERES WITH THE AGENCY'S
 RIGHT TO ASSIGN OR DIRECT EMPLOYEES OR TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B), AND NO BASIS IS THEREFORE PROVIDED IN THE
 AGENCY'S FIRST EXCEPTION FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS BASED
 ON A NONFACT PRIMARILY BECAUSE THE CENTRAL FACT ASSERTEDLY UNDERLYING
 THE AWARD WAS AN AGENCY INSTRUCTION WHICH THE AGENCY STATES HAS BEEN
 "OBSOLETE" SINCE 1975.  IN ITS THIRD EXCEPTION THE AGENCY CONTENDS THAT
 THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT PRIMARILY BECAUSE
 THE AWARD ASSERTEDLY CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE
 AGREEMENT.
 
    IT IS CLEAR, HOWEVER, FROM A FULL EXAMINATION OF THESE EXCEPTIONS
 THAT THE AGENCY IS IN EFFECT DISAGREEING WITH THE ARBITRATOR'S
 INTERPRETATION OF THE AGREEMENT.  THE AGENCY'S SECOND AND THIRD
 EXCEPTIONS, BY ASSERTING FOR VARIOUS REASONS THAT THE ARBITRATOR'S
 INTERPRETATION OF THE AGREEMENT IS INCORRECT, PROVIDE NO BASIS FOR
 FINDING THE AWARD DEFICIENT.  E.G., RED RIVER ARMY DEPOT AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-52, 3 FLRA NO.  32
 (1980).
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 23, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ PRIMARILY IN DISPUTE WAS SECTION 6(E) OF THE PARTIES' AGREEMENT
 WHICH PROVIDES:
 
    E.  GRIEVANCE VICE PRESIDENTS WILL BE GRANTED OFFICIAL TIME ON AN AS
 NEEDED BASIS FOR
 
    REPRESENTATIONAL FUNCTIONS.  SUCH REPRESENTATIONAL FUNCTIONS WILL BE
 DETERMINED BY THE LOCAL
 
    PRESIDENT OR HIS/HER DESIGNEE.
 
    /2/ WHILE THE ARBITRATOR ADDRESSED EACH OF THE ISSUES, ONLY HIS AWARD
 AS TO ISSUES "1(A)" AND "2" IS IN DISPUTE IN THIS CASE.
 
    /3/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /4/ 5 U.S.C. 7106(A)(2)(A) AND (B) PROVIDE:
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /5/ 5 U.S.C. 7131(D) PROVIDES
 
    (D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE,
 
    SHALL BE GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE
 
    INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND IN THE PUBLIC
 INTEREST.