22:0961(97)AR - DOE and National Council of Department of Education Locals, Council 252, AFGE Local 3893 -- 1986 FLRAdec AR
[ v22 p961 ]
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.