22:0961(97)AR - DOE and National Council of Department of Education Locals, Council 252, AFGE Local 3893 -- 1986 FLRAdec AR



[ v22 p961 ]
22:0961(97)AR
The decision of the Authority follows:


 22 FLRA No. 97
 
 U.S. DEPARTMENT OF EDUCATION
 Agency
 
 and
 
 NATIONAL COUNCIL OF DEPARTMENT 
 OF EDUCATION LOCALS, COUNCIL 252,
 AFGE, LOCAL 3893
 Union
 
                                            Case No. 0-AR-1091
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Thomas M. Phelan 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievant, the local union president, received for the appraisal
 year in dispute an overall rating of unsatisfactory.  A grievance was
 filed protesting the rating and was submitted to arbitration on the
 following stipulated issue:
 
          Has the Employer violated Article 7, Section 7.01 and/or 7.05
       by discriminating against the grievant in his performance
       appraisal because of his position with the Union, or has the
       Employer violated Article 22 by knowingly and incorrectly
       evaluating the grievant's performance and/or by refusing to
       develop a performance plan with due consideration to the time
       required to fulfill labor-management representational functions?
       If so, what shall the remedy be?
 
    At arbitration the Union argued, among other things, that the
 appraisal was defective because a work adjustment should have been made
 for the grievant to accommodate his representational duties and that his
 supervisor did not make the adjustment because of union animus.  In
 response the Arbitrator stated that if the evidence showed that a
 workload adjustment was both necessary and practical and that management
 failed to make the adjustment due to union animus, this would conflict
 with Article 13, pertaining to official time, and would constitute a
 violation of Article 7 because of the obvious restraint on union
 representatives.  On the basis of the evidence presented, the Arbitrator
 specifically ruled that the grievant's performance rating was defective
 because the grievant's supervisor failed to properly deal with the issue
 of a work adjustment during the appraisal period because "the required
 neutrality with respect to representational functions was compromised."
 As his award the Arbitrator ordered the rating voided.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the award is deficient because the
 Arbitrator exceeded his authority by determining an issue not included
 in the subject matter submitted to arbitration.  Specifically, the
 Agency maintains that the award is based on a determination that the
 grievant's supervisor violated the provisions of Article 13 of the
 collective bargaining agreement.  Thus, the Agency argues that the
 Arbitrator determined an issue not submitted because the stipulated
 issue dealt only with whether the appraisal was the product of union
 animus in violation of Article 7 or whether management violated Article
 22 in evaluating the grievant or developing his performance plan.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that the Agency fails to establish that the
 Arbitrator decided an issue not submitted.  Contrary to the contention
 of the Agency, we find that the Arbitrator's award resolved precisely
 the issue submitted.  As noted, the Arbitrator specifically stated that
 if management had failed to make appropriate work adjustments to
 accommodate the grievant's representational duties due to union animus,
 this failure would constitute a violation of Article 7.  Consequently,
 we find the Arbitrator's subsequent ruling to be directly responsive to
 the stipulated issue of whether the grievant's appraisal was the product
 of union animus.  See Department of the Air Force, Kirtland Air Force
 Base and American Federation of Government Employees, Local 2263,
 AFL-CIO, 19 FLRA No. 36 (1985).  In other words, we find that the
 Arbitrator affirmatively addressed that issue when he expressly
 concluded that the grievant's rating was defective because his
 supervisor failed to properly deal with the issue of a work adjustment
 due to what the Arbitrator termed a compromising of the required
 neutrality with respect to representational functions.  Thus, the
 Agency's focus on the Arbitrator's findings as to Article 13 of the
 collective bargaining agreement constitutes nothing more than
 disagreement with the Arbitrator's reasoning and conclusions in reaching
 the award resolving the issue submitted of whether the appraisal was a
 product of union animus.  Accordingly, no basis is provided for finding
 the award deficient as alleged by the Agency.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the award is deficient because the
 Arbitrator exceeded his authority by rendering his award in disregard of
 a plain and specific limitation on his authority.  Specifically, the
 Agency argues that the Arbitrator's finding, that the grievant's
 supervisor should have made a workload adjustment in connection with the
 application of the performance elements and standards to the grievant,
 modified the agreement because there is no such requirement or
 connection in the actual language of the agreement.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that this exception fails to establish that
 the award is deficient.  We find that this exception constitutes nothing
 more than disagreement with the Arbitrator's interpretation and
 application of the parties' collective bargaining agreement and, as the
 Authority has consistently and repeatedly held, such disagreement
 provides no basis for finding the award deficient.  U.S. Army Corps of
 Engineers, Kansas City District and National Federation of Federal
 Employees, Local 29, 22 FLRA No. 15 (1986).
 
                            V.  THIRD EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the award is contrary to management's right
 in accordance with section 7106(a)(2)(B) of the Statute to assign work.
 Specifically, the Agency argues that the Arbitrator's interpretation and
 application of the parties' agreement to find that the grievant's
 supervisor should have made a workload adjustment deprives management of
 its right to make that determination and interferes with the right to
 assign work.
 
                       B.  Analysis and Conclusions
 
    The Authority has specifically recognized that conflicts, such as in
 this case, between employees' entitlements to official time for
 representational functions under section 7131 of the Statute and the
 entitlements of management under section 7106 can be expected and that
 when such conflicts arise, the parties must acknowledge the need for and
 seek a reasonable accommodation of the conflict.  Department of the Air
 Force, Scott Air Force Base, Illinois, 20 FLRA No. 89 (1985), petition
 for review filed sub nom. National Association of Government Employees,
 Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir. Jan. 7, 1986).  In this
 regard the parties in this case had negotiated in their collective
 bargaining agreement a workload adjustment provision for union
 representatives which the Arbitrator enforced in finding that the
 grievant's supervisor failed to properly deal with the issue of the
 adjustment of the grievant's work.  Of course, the Authority has advised
 that an exclusive representative cannot negotiate and an arbitrator
 cannot enforce a contract provision relating to the allocation of
 official time for representational functions without regard to
 management needs and requirements regarding the assignment of work.
 Id.; see U.S. Army Corps of Engineers, Kansas City District and Local
 29, National Federation of Federal Employees, 22 FLRA No. 9 (1986).
 However, in this case the Agency has not shown that the Arbitrator's
 enforcement of this provision disregards management needs and
 requirements regarding its assignment of work.  In particular, the
 Arbitrator's ruling that the grievant's supervisor failed to properly
 deal with the work adjustment issue does not direct what specific work
 adjustments must be, or should have been, made.  See American Federation
 of Government Employees, AFL-CIO, New York-New Jersey Council of
 District Office Locals, Social Security Administration and Department of
 Health and Human Services, Social Security Administration District
 Office Operations, 7 FLRA 413, 417 (1981).  Consequently, we conclude
 that no basis is provided for finding that the award interferes with the
 Agency's right in accordance with section 7106(a)(2)(B) of the Statute
 to assign work.
 
                               VI.  DECISION
 
    Accordingly, for these reasons the Agency's exceptions are denied.
 With respect to the Arbitrator's remedy, the Authority notes that under
 Bureau of Engraving and Printing, U.S. Department of the Treasury and
 Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA
 No. 39 (1985), cited by the Arbitrator in his decision, the Arbitrator
 properly sustained the grievance and refused to permit the disputed
 rating to stand.