25:0173(12)AR - AFGE and SSA -- 1987 FLRAdec AR
[ v25 p173 ]
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 AUTHORITY --------------- FOOTNOTES$ --------------- (*) The concept of "functus officio" is derived from the Latin term meaning "a task performed." As applied to an official, the concept essentially means that once the official has fulfilled the function or accomplished the designated purpose of his or her office, the official has no further authority. Black's Law Dictionary 606 (5th ed. 1979).