25:0479(33)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR



[ v25 p479 ]
25:0479(33)AR
The decision of the Authority follows:


 25 FLRA No. 33
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. O-AR-1210
 
                                 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.
 
                  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.  The exceptions in this case have been
 filed to bench decisions of the Arbitrator rendered on July 30, 1986,
 related to claims arising in the Agency's regional offices.  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.  Contentions
 
    The Agency contends that the award concerning Mary Ellen Shea, a
 Claims Representative in the Agency's Boston Region, is deficient on a
 number of grounds.  The Union sought tuition, fees, official time, and
 travel and per diem expenses for Ms. Shea to attend Harvard University
 for the academic year 1986-1987, to obtain a master's degree in public
 administration to enhance her effectiveness as a Union representative.
 /1/ The Arbitrator awarded the remedy requested.  The Agency principally
 contends that this award of the Arbitrator is contrary to section 7106
 of the Statute.
 
                        B.  Analysis and Conclusion
 
    We agree with the Agency that the Arbitrator's award concerning Ms.
 Shea is contrary to section 7106 of the Statute.  The Authority has
 consistently held that an arbitration award may not interpret or enforce
 a collective bargaining agreement so as to improperly deny an agency the
 authority to exercise its rights under section 7106.  Section
 7106(a)(2)(B) reserves to management officials the right to assign work.
  Furthermore, the assignment of training during the duty time of
 employees constitutes an exercise of management's right to assign work
 under section 7106(a)(2)(B).  Encompassed within this right is the
 discretion to determine which employees will receive particular training
 during duty hours.  For example, U.S. Department of Justice, Immigration
 and Naturalization Service, Western Regional Office, San Pedro,
 California and American Federation of Government Employees, Immigration
 and Naturalization Service Council, Western Region, Local 2805, 18 FLRA
 No. 20 (1985).
 
    Additionally, it is well established under Authority precedent in
 negotiability cases that proposals which would require management to
 provide specific formal training or to assign employees to specific
 training programs during working hours are outside the duty to bargain
 because they infringe on management's right to assign work under section
 7106(a)(2)(B).  For example, American Federation of Government
 Employees, Local 2094, AFL-CIO and Veterans Administration Medical
 Center, New York, New York, 22 FLRA No. 81 (1986) (proposal 6).
 
    In this case, we find that the Arbitrator's award which interprets
 and enforces the parties' agreement in such a way as to direct the
 Agency to provide Ms. Shea with a Harvard education on duty time or, in
 other words, to assign her the specific training of the Harvard program
 on duty time constitutes an improper interference with management's
 right to assign work under section 7106(a)(2)(B).  Accordingly, that
 portion of the Arbitrator's award which grants Ms. Shea tuition, fees,
 official time, and travel and per diem expenses to attend Harvard
 University must be set aside as contrary to section 7106(a)(2)(B) of the
 Statute.  /2/
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the portion of the award which requires the
 Agency to provide the Union use of a particular type of photocopy
 machine is contrary to section 7106 of the Statute and the
 Government-wide regulations concerning procurement actions.  According
 to the Arbitrator, the parties' agreement provides that the Agency will
 continue to provide such office space and furnishings as were provided
 under component-wide agreements or other arrangements on June 10, 1980.
 Transcript Volume II, July 30, 1986, at 122.  Because the Agency had
 provided a 15-sort capacity photocopy machine for the Union's use on and
 before that date, the Arbitrator concluded that the Agency had violated
 the parties' agreement and ordered that it furnish the Union an
 equivalent photocopy machine, as well as reimburse the Union for the
 costs it incurred leasing a photocopy machine during the time the Agency
 failed to provide one.
 
    The Agency argues that this award is contrary to its section
 7106(a)(1) right to determine its budget and its section 7106(a)(2)(B)
 right to make determinations with respect to contracting out because it
 prescribes the particular equipment that must be provided to the Union.
 The Agency further argues that the award is contrary to 44 U.S.C. and
 the Government-wide regulations concerning procurement actions, 41 CFR
 Sections 101-25. because it orders the Agency to spend money for a
 purpose for which it was not appropriated and, in effect, determines
 that the photocopy machine leased by the Union, as well as the one the
 Agency must now provide, were acquired pursuant to contracts made on
 behalf of the Government.
 
                        B.  Analysis and Conclusion
 
    We find that the Agency has failed to establish that the Arbitrator's
 award is contrary to its right under section 7106(a)(1) of the Statute
 to determine its budget.  Under the test set forth in American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
 enforced as to other matters sub nom.  Department of Defense v. Federal
 Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 995 (1982), the award does not require
 the Agency to include a particular program or operation in its budget.
 See also Federal Employees Metal Trades Council, AFL-CIO and Department
 of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA
 No. 31 (1987), slip op. at 8-9.  Moreover, "(o)nly where an agency makes
 a substantial demonstration that an increase in costs is significant and
 unavoidable and is not offset by compensating benefits can an otherwise
 negotiable matter be found to violate the agency's right to determine
 its budget under section 7106(a) of the Statute." Wright-Patterson, 2
 FLRA at 608.  The Agency has failed to make any such showing here.
 
    The Agency also fails to establish that the award is contrary to
 management's right to make contracting out determinations under section
 7106(a)(2)(B) or that it is contrary to law and regulations concerning
 procurement actions.  In this regard, the Agency fails to cite any
 statutory or regulatory provision which would prohibit it from
 exercising its discretion to provide a photocopy machine for the Union
 to be used for labor-management relations activities.  The award does
 not require any procurement, installation or service which does not
 comport with the cited statutory and regulatory requirements and
 restrictions.
 
    Moreover, the Arbitrator merely required the Agency to provide the
 Union a type of photocopy machine equivalent to the one provided the
 Union on June 10, 1980, based on his interpretation of the parties'
 agreement.  Thus, the thrust of the Agency's exception constitutes
 nothing more than disagreement with the Arbitrator's interpretation and
 application of the pertinent provision of the parties' collective
 bargaining agreement.  It is well established that such disagreement
 does not provide a basis for finding an award deficient.  For example,
 U.S. Army Corps of Engineers, Kansas City District and National
 Federation of Federal Employees, Local 29, 22 FLRA No. 15 (1986), slip
 op. at 3.  Accordingly, this exception must be denied.
 
                            V.  THIRD EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the portion of the award which requires the
 Agency to pay travel and per diem and to grant official time for a
 number of employees to attend union-sponsored labor-management relations
 training on July 11, 1986, is contrary to section 7121(b)(3)(C) of the
 Statute.  In support of its contention, the Agency argues that because
 management filed a grievance concerning the official time and travel and
 per diem claims of the employees, the Arbitrator's award in this
 proceeding interferes with its right under section 7121(b)(3)(C) to file
 such a grievance.  The Agency further argues that it did not deny the
 requested official time and travel and per diem expenses but, rather,
 conditionally approved the requests pending the outcome of its grievance
 to determine the legality of the travel and per diem expenses, the
 appropriateness of the official time, and the effect of the award of
 another arbitrator, Arbitrator Cushman, assertedly providing a
 diffrerent interpretation of the same provisions of the parties'
 agreement in another case.
 
    In its opposition, the Union acknowledges that the Agency approved
 official time and travel and per diem for the employees for the one-day
 training program.  The Union maintains that management approved the
 requests pursuant to an earlier award by Arbitrator Smith in this
 dispute, in which the Arbitrator determined that Union officials were
 entitled to a reasonable amount of official time for labor-management
 relations training in grievance processing, arbitration and unfair labor
 practices.  The Agency filed an exception to that earlier award of
 Arbitrator Smith, essentially alleging that the award was inconsistent
 with the award of another arbitrator, Arbitrator Cushman.  That
 exception was denied by the Authority on September 16, 1985.  American
 Federation of Government Employees and Social Security Administration,
 Case No. O-AR-969.  The Union argues that the Agency's grievance is an
 improper attempt to relitigate the same issue.
 
                        B.  Analysis and Conclusion
 
    We find that the Agency has failed to establish that the Arbitrator's
 award is contrary to section 7121(b)(3)(C) of the Statute.  As noted
 above, the dispute submitted to this Arbitrator required the application
 of the official time provisions of the parties' agreement to the
 specific grievances pending in the various regions of the Agency, which
 is precisely what the Arbitrator did in his award of official time and
 travel and per diem expenses for the employees for labor-management
 relations training.  Thus, the Arbitrator clearly resolved part of the
 dispute before him.  The propriety of the Agency's attempt to raise
 essentially the same aspect of the dispute in another grievance is not
 before the Authority and would have to be resolved in another
 proceeding.  In the case before us, the essence of the Agency's
 exception constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of the parties' collective
 bargaining agreement in resolving the dispute before him and as such
 does not provide a basis for finding the award deficient.  Accordingly,
 this exception must be denied.
 
                           VI.  FOURTH EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the portions of the award granting employees
 compensation at straight-time rates as a remedy for wrongfully denied
 official time are contrary to section 7131(d) of the Statute because
 there was no evidence that the Agency actually denied the requests for
 official time.
 
                        B.  Analysis and Conclusion
 
    We find 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, 25 FLRA No. 12 (1987), request for reconsideration
 denied (Feb. 3, 1987), 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 including
 that there had been a wrongful denial of official time.  Consequently,
 the Agency has failed to establish that the bench awards granting the
 grievants compensation for the amount of time performing
 representational activities which the Arbitrator ruled should have been
 performed on official time are contrary to law.  Accordingly, this
 exception must be denied.
 
                           VII.  FIFTH EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that the Arbitrator exceeded his authority
 because he ruled on claims which were not before him and which occurred
 after the agreed upon claims period.
 
                        B.  Analysis and Conclusion
 
    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 various regional offices of the Agency that 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 with the
 Arbitrator's resolution of the issues before him and generally with his
 interpretation and application of the parties' collective bargaining
 agreement.  This disagreement provides no basis for finding an award
 deficient under the Statute.  Social Security Administration, 25 FLRA
 No. 12, slip op. at 5.
 
    With regard to the Agency's assertion that the Arbitrator exceeded
 his authority by ruling on claims which occurred after the agreed upon
 claims period, it is clear from the record, and as previously noted by
 the Authority, that prior to the first phase of the arbitration the
 parties agreed that the Arbitrator was authorized to resolve spe