25:0173(12)AR - AFGE and SSA -- 1987 FLRAdec AR



[ v25 p173 ]
25:0173(12)AR
The decision of the Authority follows:


 25 FLRA No. 12
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. 0-AR-1207
 
                                 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 and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition to
 the exceptions.
 
                  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.  Tje exceptions in this case have been filed to bench decisions
 of the Arbitrator rendered on July 9, 10, 12 and 13, 1986, related to
 claims arising in the Agency's New York Region.  In those decisions the
 Arbitrator generally ruled that by denying official time and related
 travel and per diem expenses for Union officials for the
 representational purposes involved, the Agency violated the parties'
 agreement which had been negotiated consistent with the Statute.
 Specifically, the Arbitrator sustained the individual grievances and
 awarded reimbursement for wrongfully denied official time at appropriate
 straight-time rates for the time spent by the grievants in performing
 the representational activities.  He also awarded travel and per diem
 expenses in some instances and decided a number of issues related to the
 overall dispute.
 
                           III.  FIRST EXCEPTION
 
    A.  Contention
 
    The Agency contends that the award of compensatory time to Union
 representative Fahlikman for representational functions performed after
 duty hours on March 21, 1983, is contrary to the provisions of 5 U.S.C.
 Sections 5542 and 5543.
 
    B.  Analysis and Conclusion
 
    We agree with the Agency that the award of compensatory time is
 contrary to law.  As we have previously indicated, the legal basis for
 overtime pay is the performance by an employee of overtime work which
 means "hours of work officially ordered or approved" in excess of eight
 hours in a day or in excess of 40 hours in an administrative workweek.
 5 U.S.C. Section 5542.  Similarly, the legal basis for granting
 compensatory time arises under 5 U.S.C. Section 5543 as a result of
 overtime work performed by an employee.  We have specifically held that
 a union official's performance of representational activities on nonduty
 time, outside regular duty hours, is not the performance of "hours of
 work officially ordered or approved" that constitutes overtime work
 under the provisions of section 5542(a) for which overtime pay or
 compensatory time off could be granted.  American Federation of
 Government Employees and Social Security Administration, 21 FLRA No. 14
 (1986);  Social Secrurity Administration and American Federation of
 Government Employees, AFL-CIO, 19 FLRA No. 104 (1985);  Social Security
 Administration and American Federation of Government Employees, Local
 1164, AFL-CIO, 19 FLRA No. 4 (1985).  Accordingly, we find that the
 bench award in this case is deficient to the extent that it awards
 compensatory time and that the award must be modified to substitute the
 remedy provided by the Statute.  We have held that the remedy provided
 by the Statute is compensation at the appropriate straight-time rate for
 the amount of time spent performing union representational activities on
 nonduty time which the Arbitrator ruled should have been performed on
 official time.  Social Security Administration, 21 FLRA No. 14, slip op.
 at 5.
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the Arbitrator acted improperly and that the
 Agency was denied a fair hearing because:  (1) the Arbitrator refused to
 postpone the hearing;  and, (2) the Arbitrator refused to allow an
 Agency representative to be an observer at the hearing.
 
    B.  Analysis and Conclusion
 
    As the Authority has previously indicated, an arbitration award will
 be found deficient if it is established that the arbitrator failed to
 conduct a fair hearing.  U.S. Department of Labor and American
 Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639,
 641 (1983).  However, the portions of the transcript cited by the Agency
 do not present facts and circumstances to support the exception that the
 Arbitrator denied it a fair hearing.  The portions of the transcript
 cited by the Agency reveal that, although the Agency had been given due
 notice and an opportunity to be heard, it chose to leave the hearing and
 agreed that the Arbitrator could proceed ex parte.  "It cannot now
 complain that it chose to stay away." Amalgamated Meat Cutters and
 Butcher Workmen v. Penobscot Poultry Co., 200 F. Supp. 879 (D. Me.
 1961).  Moreover, the Union's opposition effectively refutes the
 Agency's asserted justification for its postponement request and
 supports the Arbitrator's denial of the request as warranted under the
 circumstances.
 
    As to the Arbitrator's denial of the Agency's request to have an
 observer attend the proceeding, it is clear from the record that the
 Agency's "representative" expressly sought to attend the proceeding only
 as an observer and that the practice throughout the protracted dispute
 was not to permit observers for either party to attend the hearings.
 Additionally, it is well established that an arbitrator has considerable
 latitude in the conduct of a hearing.  The fact that the Arbitrator
 conducted the hearing in a manner which one party finds objectionable
 does not support a contention that the Arbitrator denied that party a
 fair hearing.  The Agency has failed to establish that it was denied a
 fair hearing.  Accordingly, this exception must be denied.
 
                            V.  THIRD EXCEPTION
 
    A.  Contentions
 
    The Agency contends the Arbitrator exceeded his authority on two
 grounds:  (1) the Arbitrator was functus officio /*/ because he ruled on
 claims which the Agency had agreed to pay and rendered awards contrary
 to his final award;  and, (2) the Arbitrator ruled on claims which were
 not part of the grievances before him.
 
    B.  Analysis and Conclusion
 
    We conclude that the Agency has failed to establish that the
 Arbitrator exceeded his authority.  First, the Agency has not
 substantiated its assertion that the Arbitrator was functus officio,
 that is, without authority to render the awards of July 9, 10, 12 and
 13, 1986, deciding grievances that were before him for resolution.  The
 substance of the Agency's functus officio argument is that, because the
 Agency agreed to pay certain claims based upon an earlier award of
 Arbitrator in this matter, the dispute was ended, the Arbitrator's
 function was accomplished and his jurisdiction exhausted.  We find that
 this argument is without merit.
 
    First, it is clear from the record that the Agency's purported
 "agreement" to pay claims in accordance with the Arbitrator's earlier
 rulings was an offer to enter into a consent agreement with the Union in
 which the Agency would agree to pay only some of the claims involved in
 the dispute before the Arbitrator.  The Agency's limited offer did not
 include official time or travel and per diem claims submitted after a
 date the Agency asserted was the cut-off date for claims in the case, or
 all non-monetary claims and grievances, which the Agency asserted were
 not covered by the grievances before the Arbitrator or his earlier
 awards as the Agency interpreted those grievances and awards.
 (Transcript, Volume III (July 8, 1986) at 26-28, 30-32, 38, 42-43, 67,
 73-74, 78, 102-109, 117-118, 120-122, 127-132, 151-154, 162-164.) The
 Union expressed reservations concerning the Agency's offer (Transcript
 at 12-17, 51-53, 58-63, 65-66) and did not accept but, rather, submitted
 a counter offer for settlement (Transcript at 96-99), which the Agency
 representative discussed but did not accept.  Thus, it is clear from the
 record, including the Union's opposition, that the dispute with its
 numerous individual grievances and related ancilliary issues was not
 resolved by the Agency's limited offer to comply.
 
    Second, and contrary to the Agency's argument, it 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 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.
 
                           VI.  FOURTH EXCEPTION
 
    A.  Contentions
 
    In other exceptions the Agency contends that the Arbitrator's
 specific bench awards related to the official time dispute are contrary
 to law.  In addition to general allegations that the Arbitrator's
 specific awards are in violation of law, the Agency alleges that the
 Arbitrator violated:  (1) the Arbitration Act, 9 U.S.C. Section 10(c),
 by denying its motion for a continuance and refusing to allow the Agency
 to have an observer present at the hearing;  (2) section 7131(d) of the
 Statute by awarding straight time as a remedy for the wrongfully denied
 official time because there were no requests for official time by the
 Union representatives on each of the days on which they worked on their
 personal time;  and (3) section 7106(b)(1) of the Statute because
 requiring the Agency to provide Union representatives with computerized
 statements of their leave adjustments interferes with management's right
 to determine the technology, methods, and means of performing work.
 
    B.  Analysis and Conclusion
 
    We find that the three grounds asserted by the Agency in this
 exception for finding the award contrary to law are without merit.  More
 specifically:
 
    1.  We find that the Agency has failed to establish that the
 Arbitrator's award is contrary to the Arbitration Act.  In this regard,
 arbitration in the Federal sector is governed by the provisions of the
 Federal Service Labor-Management Relations Statute and not by the
 provisions of the Arbitration Act.  Moreover, the thrust of the Agency's
 argument is that it was denied a fair hearing.  As noted in resolving
 the Agency's second exception, the Agency has failed to establish that
 it was denied a fair hearing and that the award is deficient on this
 basis.  Accordingly, this exception must be denied.
 
    2.  We find that, based upon our decision in 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), the Agency's
 argument that the Arbitrator violated section 7131(d) of the Statute is
 without merit.  See also American Federation of Government Employees and
 Social Security Administration, 21 FLRA No. 14 (1986);  Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 19 FLRA No. 104 (1985).  In this case, the Arbitrator with respect to
 each bench decision essentially found that the denial of official time
 was in violation of the parties' agreement which had been negotiated
 consistent with the Statute.  Thus, the Arbitrator effectively found
 that all of the conditions of section 7131(d) had been met.
 Consequently, the Agency has failed to establish that the bench awards
 granting the grievants compensation for the amount of time spent
 performing representational activities on nonduty time which the
 Arbitrator ruled should have been performed on official time are
 contrary to law.  Accordingly, this exception must be denied.
 
    3.  We find that the Agency has failed to establish that the award is
 contrary to section 7106(b)(1) of the Statute.  The Agency has not shown
 how prividing employees with the data entered into the computer system
 maintained by the Agency for adjusting leave records would conflict with
 its right to determine which technology, methods, and means will be used
 in accomplishing or furthering the work of the Agency.  See
 Congressional Research Employees Association and Library of Congress, 18
 FLRA No. 5 (1985);  American Federation of State, County and Municipal
 Employees, AFL-CIO, Local 2477;  American Federation of State, County
 and Municipal Employees, AFL-CIO, Local 2910;  Congressional Research
 Employees Association;  and Law Library of Congress United Association
 of Employees and Library of Congress, Washington, D.C., 7 FLRA 578
 (1982).  The award, based upon evidence at the hearing that the Agency
 currently utilizes a computer leave system, does not require the Agency
 to utilize a system for adjusting employee leave records which it does
 not currently or ordinarily use.  Rather, as previously noted, the award
 only requires that the information entered into the computer system
 which shows what leave adjustment was taken, as well as other leave data
 for the year, be provided the affected union representatives.  Thus, the
 award is consistent with the Agency's current technology, methods, and
 means of maintaining leave records.  Accordingly, this exception must be
 denied.
 
                           VII.  FIFTH EXCEPTION
 
    A.  Contention
 
    The Agency contends that the Arbitrator's bench decisions do not draw
 their essence from the parties' collective bargaining agreement and
 another agreement.  In support of this contention, the Agency
 essentially argues that the bench decisions are contrary to a 1985
 agreement between the parties which the Agency asserts limited the
 claims in the dispute to a particular period and imposed limitations on
 the Arbitrator's authority which were exceeded in this case.
 
    B.  Analysis
 
    From the record before us it is clear that the parties agreed that
 the initial awards in this matter were to be prospectively, as well as
 retroactively, applied.  Finally, the Agency's assertions do not
 establish that the Arbitrator's award fails to draw its essence from the
 collective bargaining agreement.  It is clear that the Agency is
 attempting to relitigate the dispute before the Authority and that its
 assertions amount to nothing more than disagreement with the
 Arbitrator's reasoning and conclusions and interpretation and
 application of the parties' agreement in resolving the dispute before
 him.  Consequently, this exception does not provide any 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, 3 FLRA 108
 (1983).
 
                              VIII.  DECISION
 
    Accordingly, for the reasons stated above, the Agency's exceptions
 are denied but the award of compensatory time to union representative
 Fahlikman is modified by substituting for the number of hours of
 compensatory time an equal number of hours of compensation at the
 appropriate straight-time rate.
 
    Issued, Washington, D.C., January 13, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS A