23:0891(109)CA - HHS, SSA and SSA Field Operations, New York Region and NCSSFO Locals- Council 220, AFGE -- 1986 FLRAdec CA



[ v23 p891 ]
23:0891(109)CA
The decision of the Authority follows:


 23 FLRA No. 109
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY 
 ADMINISTRATION AND SOCIAL 
 SECURITY ADMINISTRATION FIELD 
 OPERATIONS, NEW YORK REGION
 Respondent
 
 and
 
 NATIONAL COUNCIL OF SOCIAL 
 SECURITY FIELD OPERATIONS 
 LOCALS-COUNCIL 220, AMERICAN 
 FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case Nos. 2-CA-40444 
                                                      2-CA-40516 
                                                      2-CA-50037
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This consolidated unfair labor practice case is before the Authority
 on exceptions filed by the General Counsel to the attached Decision of
 the Administrative Law Judge.  The consolidated complaint alleged that
 by failing and refusing to convert Absent Without Leave (AWOL) time to
 Leave Without Pay (LWOP) for four employees the Respondent failed to
 comply with a final and binding arbitration award, in violation of
 section 7116(a)(1) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute).
 
                  II.  Background and Judge's Conclusion
 
    The parties' National Agreement provided that an employee may, upon
 written request, be granted LWOP to engage in certain union activities
 and that such requests normally will be approved.  When the requests for
 LWOP of some employees were denied, and they were charged with AWOL or
 forced to take annual leave, the Charging Party (the Union) grieved.
 The Arbitrator found that the burden was on management to establish in
 each instance that the work situation was not normal and that the
 request therefore could not be granted.  The Arbitrator further found
 that the Respondent had created a restrictive policy of consistent
 denial of employee requests for LWOP for union activities, after it had
 already denied their requests for official time for such activities, and
 that there was no justification for the Respondent's policy.  The
 Arbitrator concluded that the policy was violative of the parties'
 collective bargaining agreement.  The Arbitrator also concluded that the
 Respondent's persistent denials of the requests of the employees in the
 dispute before him were not justified by the workload situations in
 their offices and that the denials were violative of the parties'
 agreement.  As his award, the Arbitrator directed the Respondent to act
 on future LWOP requests in accordance with the Statute and with the
 agreement.  The Arbitrator ordered the Respondent to convert to LWOP all
 the AWOL that had been charged, "provided however that should the Agency
 prove to the Union's satisfaction that particular charges of AWOL . . .
 were not properly subjects for Union LWOP, then such particular charges
 need not be converted to LWOP."
 
    The Respondent filed exceptions with the Authority to that part of
 the Arbitrator's award concerning treatment of future requests for LWOP
 by union officials.  The Respondent did not except to that portion of
 the award which ordered conversion of LWOP.  The exceptions were denied
 by the Authority as failing to establish that the award was in any way
 deficient.  The Union then requested the Respondent to comply with the
 award by converting the AWOL time of the four employees in this unfair
 labor practgice case to LWOP, as originally sought by the employees for
 union activities and denied by the Respondent.  The Respondent refused
 to convert all of the AWOL time to LWOP.  As to one of the employees,
 the Respondent gave no reason for refusing to convert the AWOL time.  As
 to two of the employees, the Respondent refused essentially on the
 ground that they had been found to be insubordinate.  As to the fourth
 employee, the Respondent did not respond to the Union's request.  The
 parties stipulated that the Respondent did not prove to the Union's
 satisfaction that the instances in which the employees were charged with
 AWOL time were not properly subjects for LWOP time for union activities.
 
    The Judge found that the Arbitrator's award provided no specific
 methodology for resolving disputes "in situations wherein the Union had
 a legitimate basis for objecting to Respondent's stated reasons for
 refusing to convert specific AWOL to LWOP." The Judge also found that
 there was no basis for concluding that the award provided for ultimate
 determination by the Union as to whether AWOL should be converted to
 LWOP in specific situations.  The Judge determined that the General
 Counsel had the burden of establishing that no unusual workload
 situation existed when the Respondent denied the employees' LWOP
 requests and that the denial of the request was therefore unjustified.
 The Judge concluded that the General Counsel did not meet that burden
 and, therefore, dismissed the complaint.
 
                      III.  Positions of the Parties
 
    In exceptions to the Judge's Decision, the General Counsel takes
 issue with the Judge for placing the burden of justification on the
 General Counsel.  Basically, the General Counsel argues that the
 Arbitrator's award clearly granted the Union the right to accept or
 reject the Respondent's explanations for refusing to convert any
 particular AWOL or annual leave charge to LWOP.  The basic arguments of
 the Respondent in its brief to the Judge were adopted by the Judge in
 his Decision.
 
                               IV.  Analysis
 
    We disagree with the Judge's dismissal of the complaint.  The
 Arbitrator ordered conversion of all AWOL to LWOP, unless the Respondent
 could "prove to the Union's satisfaction" that the employees' LWOP
 requests were not for union activities.  The Respondent did not file
 exceptions to this part of the award.  The award was final and binding
 on the Respondent.  See Department of the Treasury, United States
 Customs Service, New York Region, New York, New York, 21 FLRA No. 119
 (1986).  We disagree with the Judge's determination that the General
 Counsel had a burden of proving that the Respondent's denial of the
 original LWOP requests of each of the four employees in this case was
 not justified in the specific work situations involved.  The Arbitrator
 specificallyly found that the Respondent's restrictive policy of
 consistently denying employee requests for LWOP for union activities was
 unjustified and violative of the parties' agreement.  The Arbitrator
 ordered conversion of all AWOL charged as a result of the Respondent's
 improper denials of LWOP requests, specifically including the AWOL time
 charged to three of the four employees in this case for "incorrect
 denials of LWOP requests." The General Counsel's burden was to show
 thatg the Respondent had failed and refused to comply with the
 Arbitrator's award.  That is, the General Counsel had to establish two
 elements:  (1) that the Respondent had refused to convert AWOL time to
 LWOP where LWOP had been requested for union activities;  and (2) that
 the Respondent had failed to prove to the Union's satisfaction that the
 employees' original requests for LWOP were not properly subjects for
 LWOP for union activities.  The record reflects that the General Counsel
 established both elements.  Accordingly, we find that the Respondent
 failed to fully comply with the Arbitrator's award in violation of
 section 71169a)(1) and (8) of the Statute.
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and affirms those rulings.  The Authority has considered the
 Judge's Decision, the exceptions to that Decision, the positions of the
 parties, and the entire record, and adopts the Judge's findings and
 conclusions only to the extent consistent with this decision.  We
 conclude that the Respondent's failure to comply with a final and
 binding Arbitrator's award constitutes a violation of section 7116(a)(1)
 and (8) of the Statute and we shall order the Respondent to remedy the
 violation.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the Department of Health and Human Services, Social Security
 Administration and Social Security Administration Field Operations, New
 York Region shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to fully implement the June 11, 1983
 arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
 L. Eisenberg by failing and refusing to properly process Union requests
 for the conversion of AWOl and forced annual leave to LWOP in accordance
 with the award after it became final and binding.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Comply with the June 11, 1983 arbitration award issued in FMCS
 Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
 processing Union requests for the conversion of AWOL and forced annual
 leave to LWOP in accordance with the award.
 
    (b) Post at its facilities in the Department of Health and Human
 Services, Social Security Administration, Field Operations, New York
 Region, copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by the Regional Commissioner, New York Region, and shall
 be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C., October 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 HEREBY NOTIFY OUR
 EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to fully implement the June 11, 1983
 arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
 L. Eisenberg by failing or refusing to properly process Union requests
 for the conversion of AWOL and forced annual leave to LWOP in accordance
 with the award after it became final and binding.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL comply with the June 11, 1983 arbitration award issued in
 FMCS Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
 processing Union requests for the conversion of AWOL and forced annual
 leave to LWOP in accordance with the award.
                                       (Activity)
 
    Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 3700, New York, New York 10278, and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 2-CA-40444, 2-CA-40516, 2-CA-50037
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY 
 ADMINISTRATION, FIELD OPERATIONS, NEW YORK REGION
    Respondent
 
                                    and
 
 NATIONAL COUNCIL OF SOCIAL SECURITY FIELD 
 OPERATIONS LOCALS -- COUNCIL 220, AMERICAN 
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
    Charging Party
 
    L. J. Clary, Esquire
       For the Respondent
 
    Allan W. Stadtmauer
       For the General Counsel
 
    Cecelia McCarthy, Esquire
       For the Charging Party
 
    Before:  LOUIS SCALZO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
 "the Statute"), and the Rules and Regulations issued thereunder.
 
    The consolidated complaint, as amended at the hearing, alleged that
 the Department of Health and Human Services, Social Security
 Administration, and Social Security Administration, Field Operations,
 New York Region (Respondent) committed unfair labor practices within the
 meaning of Sections 7116(a)(1) and (8) of the Statute by failing and
 refusing to comply with a final arbitration award issued on June 11,
 1983, by Arbitrator Walter L. Eisenberg in FMCS File No. 82K/09368.
 
    The following was alleged as a basis for failing and refusing to
 comply with the mentioned arbitration award:
 
    Case No. 2-CA-40444:  On or about July 25, 1984, the Respondent
 failed and refused to convert certain Absent Without Leave (AWOL) time
 charged to bargaining unit employee Ralph de Juliis, to Leave Without
 Pay (LWOP) time.
 
    Case No. 2-CA-40516:  On or about August 31, 1984, the Respondent
 failed and refused to convert certain AWOL time charged to former
 bargaining unit employees Joseph Higgins and Kirk Bigelow, respectively,
 to LWOP time.
 
    Case No. 2-CA-50037:  On or about September 17, 1984, the Respondent
 failed and refused to convert certain AWOL time charged to former
 bargaining unit employee Mary Ostrowski, to LWOP time.
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  Based upon the entire record
 herein, including a stipulation of facts, exhibits, arguments made
 during the hearing, and briefs filed by the parties, I make the
 following findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    1.  At all times material herein, the Charging Party has been, and is
 now, a labor organization within the meaning of Section 7103(a)(4) of
 the Statute.
 
    2a.  At all times material herein, the Department of Health and Human
 Services, Social Security Administration, has been, and is now, an
 agency within the meaning of Section 7103(a)(3) of the Statute.
 
    b.  At all times material herein, Social Security Administration,
 Field Operations, New York Region, located in New York, New York, has
 been, and is now, a constituent entity within the Department of Health
 and Human Services, Social Security Administration, and an agent acting
 on its behalf.
 
    c.  At all times material herein, the Social Security Administration,
 Passaic, New Jersey;  New Brunswick, New Jersey;  and Midtown New York
 District Offices and North Harlem Branch Office have been, and are now,
 constituent entities within the Department of Health and Human Services,
 Social Security Administration, and agents acting on its behalf.
 
    3a.  At all times material herein, the American Federation of
 Government Employees, AFL-CIO (AFGE or Union) has been, and is now, the
 certified exclusive representative of a consolidated nationwide unit of
 certain employees of Respondent, including all employees in the District
 and Branch Offices of the Social Security Administration in the States
 of New York and New Jersey, excluding all management personnel,
 professional employees, federal employees engaged in personnel work in
 other than a purely clerical capacity, guards and supervisors.
 
    b.  At all times material herein, AFGE has delegated to the Charging
 Party authority to act as its representative for the purposes of
 collective bargaining for certain of Respondent's employees, including
 employees at Respondent's Passaic, New Jersey;  New Brunswick, New
 Jersey;  and Midtown New York District Offices and North Harlem Branch
 Office;  and the Charging Party's delegation has been recognized by
 Respondent.
 
    4. At all times material herein, a National Agreement has existed
 between the AFGE, and the Respondent.  This agreement became effective
 on June 11, 1982 (Jt. Exh. No. 12).
 
    5.  On or about June 11, 1983, Arbitrator Walter L. Eisenberg issued
 an arbitration award in AFGE Local 3369 and DHHS, Social Security
 Administration, FMCS File No. 82K/09368.  The award, issued pursuant to
 the negotiated grievance and arbitration procedure set out in the
 National Agreement, involved the Respondent and AFGE Local 3369, and
 related to the Respondent's processing of Union requests for LWOP under
 the provisions of the National Agreement (Jt. Exh. No. 13).
 
    6.  On or about June 30, 1983, the Respondent filed exceptions to the
 award issued by Arbitrator Eisenberg in FMCS File No. 82K/09368 (Jt.
 Exh. No. 14).  /1/
 
    7.  On or about April 20, 1984, the Authority denied the exceptions
 filed by the Respondent in connection with Arbitrator Eisenberg's award
 in FMCS File No. 82K/09368, and the award became final and binding (Jt.
 Exh. No. 15).
 
    8a.  On or about June 25, 1984, the Charging Party by letter dated
 June 25, 1984, requested that the Respondent comply with Paragraph 5 of
 the final and binding award described aboved by converting certain AWOL
 charged to unit employee Ralph de Juliis, to LWOP (Jt. Exh. No. 16).
 
    b.  The instances of AWOl cited in the June 25, 1984, letter were
 originally sought by de Juliis as Union LWOP, but were denied.
 
    c.  On or about July 25, 1984, Respondent by its agents, did not
 convert de Juliis' AWOL to LWOP (Jt. Exh. No. 20).
 
    d.  At no time material herein has Respondent proved to the Union's
 satisfaction that the instances of AWOL cited in the June 25, 1984
 letter to the Respondent were not properly subjects of Union LWOP.
 
    9a.  On or about July 11, 1984 and July 20, 1984, the Charging Party,
 by letters reflecting these dates, requested the Respondent to comply
 with Paragraph 5 of the final and binding award described above by
 converting certain AWOL charged to former unit employees Joseph Higgins
 and Kirk Bigelow, respectively, to LWOP (Jt. Exh. Nos. 17, and 18 (a)).
 
    b.  The instances of AWOL cited in the July 11, 1984 and July 20,
 1984 letters described above were originally sought by Higgins and
 Bigelow, respectively, as Union LWOP but were denied except for the June
 16, 17 and 23, 1982 requests of Bigelow and the June 22, 23, 24, 1982
 requests of Higgins (Jt. Exh. Nos. 21 and 22).  /2/
 
    c.  On or about August 31, 1984, Respondent, by its agents failed to
 convert AWOL time for Joseph Higgins and Kirk Bigelow to LWOP (Jt. Exh.
 Nos. 21 and 22).
 
    d.  At no time material herein has Respondent proved to the Union's
 satisfaction that the instances of AWOL cited in the July 11, 1984 and
 July 20, 1984, letters transmitted to the Respondents on behalf of
 Higgins and Bigelow, respectively were not properly subjects of Union
 LWOP.
 
    10a.  On or about September 17, 1984, the Charging Party by letter
 requested Respondent to comply with Paragraph 5 of the final and binding
 award described above by converting certain AWOL charged to former unit
 employee Mary Ostrowski to LWOP (Jt. Exh. No. 19).
 
    b.  The instances of AWOL cited in the September 17, 1984 letter
 described above were originally sought by Ostrowski as Union LWOP, but
 were denied except for the August 2, 1982 request.
 
    c.  At all times since on or about September 17, 1984, Respondent by
 its agents has not converted Mary Ostrowski's AWOL to LWOP.
 
    d.  At no time material herein has Respondent proved to the Union's
 satisfaction that the instances of AWOL cited in the September 17, 1984
 letter described above, were not properly subjects of Union LWOP.
 
    11.  Since on or about April 20, 1984, and at all times thereafter,
 Respondent has not converted all AWOL time to Union LWOP as directed by
 the June 11, 1983 award.
 
                        Discussion and Conclusions
 
    Arbitrator Eisenberg's June 11, 1983 arbitration award arose out of a
 contractual dispute concerning the interpretation of Article 31, Section
 7-B of the National Agreement, the collective bargaining agreement
 governing the labor relations of the Respondent and AFGE.  This Section
 provides:
 
                      Section 7 -- Leave Without Pay
                                       . . . .
 
          B.  An employee may be granted leave without pay to engage in
       union activities on the national, district or local level, to work
       in programs sponsored by the Union or the AFL-CIO, upon written
       request by the appropriate union office.  Such requests will be
       referred to the appropriate management official and will normally
       be approved.  Such employees shall continue to accrue benefits in
       accordance with applicable OPM regulations.  Leave without pay for
       this purpose is limited to one (1) year, but may be extended or
       renewed upon proper application.
 
    In this arbitration proceeding the AFGE pressed a claim for less
 restrictive grants of LWOP for Union officials engaged in tasks dealing
 with labor-management relations.  Arbitrator Eisenberg found in favor of
 the Union, and upheld the Union's claim for a less restrictive
 interpretation of the provision.  He found that it related to LWOP
 requested by a Union office for an employee to engage in Union
 activities, and further that it "states unequivocally that such LWOP
 requests by a Union 'will normally be approved.'" (Jt. Exh. No. 13 at
 14-15).
 
    The burden of justifying a denial was placed on management.  That is,
 management was required to make an explicit showing as to why a LWOP
 request should not be granted "because of an identified non-normal
 situation." (Jt. Exh. No. 13 at 15).  He found that requests for LWOP
 filed by de Juliis, Higgins and Bigelow had not been denied in
 accordance with the collective bargaining agreement, and that the
 District Offices which these Union officials were assigned to had not
 "experienced workload situations beginning June 11, 1982 which justified
 persistent denials of LWOP to those officials." (Jt. Exh. No. 13 at 17).
  He reiterated specifically that "(t)he burden of proving the existence
 of a work situation that is not normal is on the Agency." (Jt. Exh. No.
 13 at 17).  Arbitrary agency restriction of Union LWOP was found to be
 violative of the National Agreement, and Respondent's practice of
 delaying action on Union LWOP requests until 8:30 A.M. of the morning on
 which the Union LWOP was to be used was condemned as tending to
 "trivialize the involvement of Union officials in labor management
 relations." (Jt. Exh. No. 13 at 19).  He concluded:
 
          In sum, I find that the record before me supports the Union's
       complaintt that the Agency has created a restrictive special
       policy for response to and consistent denial of requested LWOP
       after it has denied a Union request for official time, and I find
       that there is nothing in the National Agreement or in valid past
       practice thereunder which can serve to justify such a policy.  The
       Agency's actions with reference to Union LWOP thus constitute
       violations of the applicable provisions of the National Agreement.
       (Jt. Exh. No. 3 at 20-21).
 
    The award fashioned by the Arbitrator required the Respondent to:
 
          1.  Grant both long and short term LWOP to union officials
       under "normal working conditions."
 
          2.  Grant or deny union LWOP promptly after it receives LWOP
       requests.  Advise the Union promptly of its response;  and not
       delay doing so until 8:30 A.M. on the date the leave is to be
       used.
 
          3.  Deal with future LWOP requests in a manner consistent with
       the Statute and the collective bargaining agreement.
 
          4.  Construe Article 31, Section 7-B of the June 11, 1982
       National Agreement as "normally" requiring approval of Union LWOP
       for Union officials for the purposes specified in this contractual
       provision.
 
    Paragraph 5 of the Award fashioned the following specific remedy:
 
          (1) restore to Union LWOP, all charges to Union officials of
       AWOL and annual leave which should have been granted as Union
       LWOP;  provided however, that should the Agency prove to the
       Union's satisfaction that particular charges of AWOL and annual
       leave were not properly subjects for Union LWOP, then such
       particular charges need not be converted to LWOP;
 
          2.  change to Union LWOP all AWOL charges to Kirk Bigelow,
       Joseph Higgins, and Ralph de Juliis for 'incorrect denials' of
       LWOP;  provided however, that should the Agency prove to the
       Union's satisfaction that particular charges of AWOL against any
       of these individuals were not properly subjects for Union LWOP
       then such particular charges of AWOL need not be converted to
       LWOP;  and provided that any conversion of AWOL charges to LWOP
       charges hereby required shall not be construed to constitute a
       finding as to the conduct of any of these three employees in the
       circumstances pertaining to any particular AWOL charge;
 
          3.  in the future when it undertakes to deny requested Union
       LWOP, provide to the Union, in advance, a statement of the nature
       of any 'exigency' said to be the basis for the denial, together
       with the name and title of the management representative who is
       declaring the departure from normal conditions or the exigency of
       business;  and
 
          4.  grant Union LWOP for longer than one day at a time, subject
       to the conditions in Article 31, Section 7, B, of the National
       Agreement, as construed by the terms of this Award.
 
    It is clear from the record that the June 11, 1983 award contemplated
 the Respondent's good faith cancellation of all AWOL which should have
 been granted as Union LWOP under the terms of the award.  It further
 contemplated that in situations wherein the Respondent deemed conversion
 inappropriate, conversion of such AWOL to LWOP would be excused if the
 Agency proved to the Union's satisfaction that particular charges should
 not be converted.  This element of the decision in turn envisions that
 the Union would not act arbitrarily in refusing to acknowledge in
 appropriate cases that particular charges of AWOL should not be
 converted.  However, the decision itself does not specifically address
 the issue of what action, if any, should be taken by the Respondent in
 situations wherein the Union had a legitimate basis for objecting to
 Respondent's stated reasons for refusing to convert specific AWOL to
 LWOP.  That is, the arbitrator's decision provides no specific
 methodology for resolving such disputes, and does not relate to
 identifiable instances wherein conversion of AWOL should occur under the
 terms outlined in the award.  Presumably, issues relating to questioned
 determinations were to be made in grievance arbitration proceedings, or
 in the course of unfair labor practice proceedings.
 
    The award does indicate that any conversion of AWOL charges required
 by the terms of the award "shall not be construed to constitute a
 finding as to the conduct of (de Juliis, Higgins or Bigelow) in the
 circumstances pertaining to any particular AWOL charge." The quoted
 language suggests that the arbitrator envisioned Respondent's possible
 conversion of AWOL to LWOP in some or all situations involving alleged
 misconduct of these three employees, and further that the administrative
 fact of conversion would have no evidentiary significance in related
 disciplinary matters.
 
    In contrast to the meaning of the award outlined, counsel for the
 General Counsel argues that the Eisenberg award leaves to the Union the
 ultimate determination as to whether an AWOL charge should be converted
 to LWOP.  There is no rational basis for drawing this conclusion from
 the June 11, 1983 award, or any other documents in the record.  This
 argument would operate to negate entirely those elements of the award
 requiring the Respondent to determine and then remedy prior incorrect
 denials of LWOP.
 
    Relieving the Respondent of responsibility to convert in situations
 wherein the Union expressed satisfaction with a refusal to convert
 merely points out the obvious.  That is, that conversion in such
 situations would be unnecessary and illogical.  It may not be assumed
 that the arbitrator intended the Union to have absolute discretion to
 require the conversion of all AWOL time not converted by the Respondent
 regardless of the relative merits of each individual request for LWOP.
 Although, the language used in the decision could have made this point
 clearer, the fact remains that this meaning necessarily follows from the
 terms used in the award.  /3/
 
    The General Counsel's complaint rests entirely upon the theory that
 the Respondent failed to convert AWOL time in accordance with demands
 made upon the Respondent, and further that the Respondent failed to
 prove to the Union's satisfaction that Respondent's refusal to convert
 AWOL time was proper.  As noted, the arbitration award did not provide
 such a remedy.  A showing of a failure to comply with Union demands, or
 a showing of a failure to satisfy Union concerns, without more, would
 not necessarily equal non-compliance with the arbitration award.  The
 General Counsel has the burden of establishing specifically that
 Respondent's denial of LWOP fell within the purview of the June 11, 1983
 award.  That is, that no unusually pressing working conditions existed
 to justify Respondent's refusal of LWOP.  Such a showing is not
 reflected in the record.  /4/
 
    The record reflects reliance upon a letter dated June 25, 1984
 requesting the conversion of "all AWOL" time relating to de Juliis to
 LWOP (Jt. Exh. No. 16).  Neither the award, nor the record furnishes a
 basis for such a demand.  At most the award requires only the conversion
 of AWOL time associated with LWOP reequests incorrectly denied prior to
 the June 11, 1983 arbitration award.  There was no showing that any
 specific de Juliis request for LWOP was incorrectly denied within the
 context of the arbitration award.  The General Counsel's reliance upon
 Respondent's July 25, 1984 refusal to comply with the de Juliis request
 (Jt. Exh. No. 20), without more, would not suffice to establish a
 failure to comply with the award.
 
    Similarly, both Higgins and Bigelow demanded the conversion of all
 AWOL charged to them (Jt. Exh. Nos. 17, 18(a), and 18(b)), and Ostrowski
 demanded the conversion of all AWOL time charged to her (Jt. Exh. No.
 19), without reference to the Respondent's obligation to utilize
 criteria outlined in the June 11, 1983 arbitration award.  A showing of
 Respondent's refusal to comply with these three requestss, without more,
 would not suffice to establish proof of non-compliance with the award.
 
    Instead of establishing specific instances wherein AWOL was
 incorrectly denied under the principles outlined in the award, the
 prosecutive theory was made to rest on the erroneous premise that the
 Respondent was under an obligation to convert all of the AWOL time
 referred to in the Higgins, Bigelow and Ostrowski letters.
 
    It is regrettably noted that elements of the record do in fact
 suggest that the Respondent may not have followed the arbitrator's
 instructions in each and every instance;  however, on the basis of the
 record presented it is not possible to make a finding concerning any
 specific failure to convert AWOL time in accordance with principles
 outlined in the award.  Moreover, the complaint, resting entirely on the
 broad demands for conversion reflected in the de Juliis, Higgins,
 Bigelow and Ostrowski correspondence, and on Respondent's admitted
 failure to satisfy the Union with a rationale for refusing to convert,
 does not allege any specific instances of failure to convert in
 accordance with the terms of the award.  In view of the foregoing, and
 since the record reflects no showing of specific non-compliance with the
 award, it is determined that the consolidated complaint should be
 dismissed.  It is recommended that the Authority issue the following
 Order pursuant to 5 C.F.R. Section 2423.29.
 
                                   ORDER
 
    IT IS HEREBY ORDERED, that the consolidated complaint in Case Nos.
 2-CA-40444, 2-CA-40516, and 2-CA-50037, be, and it hereby is, dismissed.
 
                                       /s/ LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  August 15, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The exceptions mistakenly refer to Arbitrator Eisenberg's award
 as being dated June 4, 1983, rather than June 11, 1983 (Tr. 60-61).
 
    (2) Jt. Exh. No. 22 reflects that Bigelow's LWOP requests for June
 16, 18 and 23, 1982 were granted by the Respondent.
 
    (3) Authority decisions have held that union proposals which would
 operate to obligate an agency to grant an employee's request for LWOP
 without any regard to the necessity for the employee's services during
 the period covering the request would be inconsistent with management's
 right pursuant to Section 7106(a)(2)(B) of the Statute "to assign work."
 American Federation of Government Employees, AFL-CIO, Local 2263, 15
 FLRA No. 126 (1984), 15 FLRA 580;  American Federation of Government
 Employees, AFL-CIO, Local 12, 18 FLRA No. 58 (1985), 18 FLRA 418.
 Similarly, an arbitrator's award likewise may not interfere with the
 exercise by an agency of its rights under Section 7106(a) of the
 Statute.  Veterans Administration, Lebanon, Pennsylvania, 11 FLRA No. 43
 (1982), 11 FLRA 193;  American Federation of Government Employees,
 AFL-CIO, Local 12, supra.  The record reflects no basis for concluding
 that the June 11, 1983 arbitration award denied management's rights.
 
    (4) The General Counsel is not helped by the stipulation that since
 on or about April 20, 1984, and at all times thereafter, Respondent has
 not co