25:0238(17)AR - SSA and National Council of SSA Field Operations Locals (NCSSAFOL), AFGE -- 1987 FLRAdec AR



[ v25 p238 ]
25:0238(17)AR
The decision of the Authority follows:


 25 FLRA No. 17
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 NATIONAL COUNCIL OF SSA FIELD 
 OPERATIONS LOCALS (NCSSAFOL) 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO (AFGE)
 Union
 
                                            Case No. 0-AR-1167
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator James P. Whyte filed by the Agency and by the Union under
 section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.
 
                              II.  Background
 
    The parties reached an impasse in bargaining on a supplemental
 agreement and were directed by the Federal Service Impasses Panel (the
 Panel) to submit their dispute to mediation/arbitration.  The Arbitrator
 was given authority by the Panel to issue a final decision on the
 outstanding issues.  The Arbitrator made his award on May 6, 1986 and
 issued a supplemental award on June 4, 1986.  Both parties filed
 exceptions to various portions of the award as set forth below.
 
                          III.  Agency Exceptions
 
    A.  First Exception
 
    1.  Contentions
 
          The Agency contends that the award of the following
 
 language of Article 9, Section 7.G.3. is contrary to the Statute:
 
          Any pregnant VDT (Video Display Terminal) operator will be
       permitted to transfer upon request to another function during her
       pregnancy without adverse effect.
 
    Specifically, the Agency contends that this part of the award is
 contrary to section 7105(a)(2)(E) because the Arbitrator resolved an
 issue relating to the duty to bargain and such issues may be resolved by
 the Authority only.  Additionally, the Agency contends that the award is
 contrary to the rights to assign work and employees under section
 7106(a)(2).
 
    In its opposition the Union contends that the Arbitrator did not make
 a negotiability determination but only decided that an exception to
 management's right to assign employees was appropriate in this situation
 to protect the health and safety of pregnant VDT operators.  The Union
 contends that the award is not contrary to section 7106(a)(2) because
 the provision constitutes an arrangement for employees adversely
 affected by the exercise of a management right.
 
    2.  Analysis and Conclusion
 
    The Authority has consistently ruled that negotiability disputes
 which arise between an agency and an exclusive representative under
 section 7117(c) of the Statute must be resolved by the Authority as
 required by section 7105(a)(2)(E).  Department of the Air Force, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio and
 American Federation of Government Employees, Council of Locals, No. 214,
 18 FLRA No. 81 (1985);  Louis A. Johnson Veterans Administration Medical
 Center, Clarksburg, West Virginia and American Federation of Government
 Employees, Local 2384, 15 FLRA 347 (1984).  The Authority has held on
 this basis that an interest arbitrator acting pursuant to a direction of
 the Federal Service Impasses Panel does not have authority to resolve
 such duty-to-bargain issues.  AFLC, Wright-Patterson Air Force Base.
 
    The Authority also held in the cited cases that when an agency has
 asserted to an interest arbitrator that a proposal is not negotiable by
 reason of section 7106(a) of the Statute, the Arbitrator is not
 authorized to resolve the issue and his award on that issue is
 deficient.  In this and future cases involving allegations of
 nonnegotiability made in an interest arbitration proceeding, we will
 carefully examine the record of the case and the arbitrator's award.
 This examination will be made to determine whether the arbitrator made a
 negotiability ruling or whether the arbitrator merely applied existing
 Authority case law to resolve the impasse.  In the event of the former
 action, the award will be set aside in accordance with Louis A. Johnson
 V.A. Medical Center.  In the latter, we will resolve the exceptions on
 the merits and sustain the award if existing case law is correctly
 applied.
 
    In this case, the Arbitrator states in his award that the Agency
 claimed that the proposal concerning accommodations for pregnant VDT
 operators was not negotiable but he included the proposal in the
 agreement as an "exception" to management's right to assign work.  There
 is no clear Authority precedent on this issue.  Accordingly, since the
 Agency asserted its claim of nonnegotiability, the Arbitrator did not
 have the authority to resolve the impasse on this issue and his award is
 deficient to that extent.
 
    B.  Second Exception
 
    1.  Contentions
 
    The Agency contends that the award of the following language of
 Article 7, Section 2 is contrary to section 7119(c)(5)(B) of the
 Statute:
 
          In the event the union fails to ratify the Supplemental
       Agreement, the parties will meet within 60 days to renegotiate
       those portions specified by the union.
 
    The Agency contends that this requirement is contrary to the Panel's
 power to take final action to resolve an impasse and that it is contrary
 to the Panel's direction to the Arbitrator that he resolve the issues
 not resolved by mediation by "issuing a final decision."
 
    The Union in its opposition maintains that there is no violation of
 section 7119(c)(5)(B) because the award is consistent with the Panel's
 directions and provides for subsequent procedures to be followed only if
 ratification is not obtained.  The Union also points out that the
 parties' ground rules for negotiating the supplemental agreement include
 a provision that "the agreement will be subject to ratification by the
 Locals."
 
    2.  Analysis and Conclusion
 
    We find that the Agency fails to show that the disputed portion of
 the award is contrary to section 7119(c)(5)(B).  There is nothing in the
 Statute which prohibits the parties from including a provision for Union
 ratification of an agreement before it becomes final and the Authority
 has held that ratification of a tentative agreement by a union's
 membership may be a precondition to a binding agreement.  See U.S.
 Department of Commerce, Bureau of the Census and American Federation of
 Government Employees, Local 2782, AFL-CIO, 17 FLRA 667 (1985).  In this
 case, the parties' ground rules provide for ratification by the Union
 locals and the Arbitrator's award is consistent with that agreement.
 Consequently, we find that the provision allowing the reopening of the
 agreement in the event the Union fails to ratify the agreement is not
 contrary to section 7119(c)(5)(B) and the Agency's second exception
 provides no basis for finding the award deficient.
 
    C.  Third Exception
 
    1.  Contentions
 
    The Agency contends that the award of the following underlined
 language of Article 7, Section 2 is contrary to section 7114(c):
 
          If the Agency Head disapproved any portion of this Agreement,
       the parties will meet within 60 days to reopen negotiations on all
       affected provisions.  Implementation of the remaining provisions
       will not be delayed.
 
          An allegation by either party that there is no duty to bargain
       on a specific proposal shall not delay implementation of the
       remaining provisions.
 
    The Agency contends that once an agreement has been disapproved by
 the agency head, there is no duty to implement other parts of the
 agreement.
 
    The Union contends in its opposition that there is no statutory
 requirement to delay implementation of provisions to which no allegation
 of nonnegotiability has been made.  Further, the Union maintains that
 section 7114(c) does not prohibit implementation by the parties of those
 provisions of an agreement not specifically disapproved by an agency
 head.
 
    2.  Analysis and Conclusion
 
    We find that the Agency's third exception fails to show that the
 award is contrary to section 7114(c).  Both parties cite in support of
 their position the Authority's decision in Department of the Interior,
 National Park Service, Colonial National Historical Park, Yorktown,
 Virginia, 20 FLRA No. 65 (1985).  In that decision, the Authority held
 essentially that under section 7114(c), "the agreement," not a portion
 of the agreement, must be approved by the agency head before the
 agreement goes into effect and becomes enforceable.  Id., at page 5 of
 the Decision.  However, as the Union points out, the Authority also
 added that the parties could agree to implement all provisions of their
 local agreement not specifically disapproved by the agency head.  Id. at
 page 5, n.6.  In this case the Arbitrator, as part of his final award
 resolving the parties' impasse, ordered implementation of the provisions
 which are not disapproved by the Agency head or not alleged to be
 outside the duty to bargain.  This provision is not inconsistent with
 section 7114(c) and the Agency's third exception provides no basis for
 finding the award deficient.
 
                           IV.  Union Exceptions
 
    A.  First Exception
 
    1.  Contentions
 
    The Union contends that the award of the following language of
 Article 2, Section 1.A. is contrary to section 7114(b)(4) of the
 Statute:
 
          Section 1A -- Information Requests
 
          Union agrees to make reasonable efforts to be specific in
       identifying the areas of information desired, when requesting
       information under 5 USC 71.
 
          When feasible and consistent with the union right to
       information under law, employee data will be sanitized in the
       interest of protecting individual privacy.  Union representatives
       are responsible for maintaining the confidentiality of personnel
       data made available to them in accordance with applicable law,
       rule and regulation.
 
          The parties agree that management is not obligated to provide
       information that it previously provided.
 
          The parties agree that management is not obligated to provide
       information which is burdensome and/or unwieldy.
 
    The Union maintains that this provision abridges its right to obtain
 necessary information under section 7114(b)(4) and that it constitutes a
 waiver of its rights.  The Union further contends that the award of this
 provision over which it had elected not to bargain constituted an
 improper negotiability determination by the Arbitrator.
 
    The Agency denies that the provision imposes any illegal restrictions
 on the Union's right to obtain information and argues that it only
 requires the Union to be reasonably specific in its requests.  The
 Agency maintains that the Union's rights under law are protected by the
 language of the agreement, particularly Article 2, Section 13 which
 states "(n)othing in this Article constitutes a waiver of union rights
 under 5 U.S.C. 7114."
 
    2.  Analysis and Conclusion
 
    The Union's first exception fails to demonstrate that the award is
 contrary to section 7114(b)(4) of the Statute.  It is well established
 that the Union is entitled, upon request, to information which meets the
 requirements of that section.  Bureau of Alcohol, Tobacco and Firearms,
 National Office and Western Region, San Francisco, California, 8 FLRA
 547 (1982).  However, the Authority has held that section 7114(b)(4)
 does not preclude the parties from establishing procedures for
 furnishing information to an exclusive representative.  Department of
 Defense Dependents Schools, Washington, D.C. and Department of Defense
 Dependents Schools, Germany Region, 19 FLRA No. 96 (1985).  In this case
 we find that the Arbitrator's award concerning information requests does
 not deprive the Union of its rights to request and receive information
 under section 7114(c) of the Statute.  We further note, with regard to
 the Union's claim of nonnegotiability, that under section 7117(c)(1) of
 the Statute, only an agency may make an allegation of nonnegotiability.
 Veterans Administration Medical Center, Salisbury, North Carolina and
 American Federation of Government Employees, AFL-CIO, Local 1738, 2 FLRA
 405 (1980).  The Statute does not sanction allegations of
 nonnegotiability by the Union.  The Arbitrator therefore did not make an
 improper negotiability determination as alleged.  We further find that
 there was no waiver of any rights of the Union under section 7114
 because the agreement provision in Article 2, Section 13 plainly states
 that there is no waiver of thos rights.  The Union's first exception
 provides no basis for finding the award deficient.
 
    B.  Second Exception
 
    1.  Contentions
 
    The Union contends with respect to the provisions of Article 2,
 Sections 1.A and 13 (quoted above), that the award is ambiguous and
 contradictory so as to make implementation impossible.
 
    The Agency denies that the provisions are ambiguous or contradictory
 and argues that they are consistent with law.
 
    2.  Analysis and Conclusion
 
    We find that the Union's exception provides no basis for finding the
 award deficient.  The Union falis to show that the award of the language
 in question is in any way ambiguous or contradictory so as to make
 implementation impossible.  See, for example, U.S. International Trade
 Commission, Washington, D.C. and American Federation of Government
 Employees, Local 2211, AFL-CI