26:0006(2)AR AFGE VS HHS, SSA -- 1987 FLRAdec AR
[ v26 p06 ]
The decision of the Authority follows:
26 FLRA No. 2 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. O-AR-1208
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. 1
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 29, 1986, related to claims arising in the Agency's Seattle regional office. 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.
In its exceptions, the Agency alleges that: (1) the Arbitrator exhibited bias and hostility towards the Agency so as to deny the Agency a fair hearing; (2) the Arbitrator exceeded his authority; (3) the award is based on a nonfact; (4) the award fails to draw its essence from the parties' agreement; (5) the award is incomplete and ambiguous; and, (6) the award violates applicable law.
IV. ANALYSIS AND CONCLUSION
Upon careful consideration of the record before the Authority in this matter, including the Agency's exceptions, the Union's opposition, and the transcript of the proceeding on July 29, 1986, we conclude that the Agency has failed to establish that the Arbitrator's bench decisions on that date are deficient as alleged.
As to the Agency's allegation that it was denied a fair hearing, the remarks of the Arbitrator in the transcript which the Agency relies upon do not provide any support for its allegation. Rather, the cited portions of the transcript simply indicate the Arbitrator's concern with the conduct of the Agency's representatives in the dispute and reflect his reasoning and conclusions in the July 29, 1986, proceeding. Disagreement with such comments and an arbitrator's reasoning provide no basis for finding an award deficient. See Federal Aviation Science and Technological Association Local No. 291, Fort Worth, Texas and Federal Aviation Administration, Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas, 3 FLRA 545, 547 (1980); Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981); General Services Administration and American Federation of Government Employees, Council 236, 15 FLRA 328 (1984).
As to the Agency's allegations that the Arbitrator exceeded his authority and that the award is based on a nonfact, fails to draw its essence from the parties' agreement and is incomplete and ambiguous, we find that the Agency's assertions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and are an attempt to relitigate the matter before the Authority. Such assertions provide no basis for finding the bench awards deficient under the Statute. For example, 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); American Federation of Government Employees and Social Security Administration, 25 FLRA No. 12 (1987), request for reconsideration denied (Feb. 3, 1987); Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL - CIO, 25 FLRA No. 33 (1987).
We also find that the Agency's allegations that certain of the Arbitrator's bench decisions are contrary to law is without merit. More specifically:
1. We find that the Agency has failed to establish that the Arbitrator's decision that the Agency was required to pay the full cost of the transcript violates management's 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, Va California, 25 FLRA No. 31 (1987), slip op. at 8-9; Social Security Administration, 25 FLRA No. 33, slip op. at 4. 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.
2. We find that the Agency has failed to establish that the Arbitrator's award concerning the scheduling of training for Union representatives is contrary to management's right under section 7106(a)(2)(B) to assign work. The Agency alleges that the Arbitrator precluded the Agency from scheduling training for employees who serve as Union representatives. The Agency has mischaracterized the Arbitrator's award. The record establishes that the grievance concerned the Agency's ordering an employee who had been on 100 percent official time for representational activities to attend a training course from January 13 to 16, 1986 (Transcript, Volume I, July 29, 1986, at 42-45). The grievance alleged that the Agency's action was contrary to the parties' collective bargaining agreement and case law. The grievant argued that (1) the scheduling was an attempt to interfere with his representational activities in a complex arbitration case; (2) the Agency was aware of the particular representational activities; (3) there was no pressing need for the training at that time; and, (4) alternative training dates could have been scheduled. The Union requested as a remedy that the Arbitrator, among other things, issue an order to protect other Union representatives in the future and that management be prohibited from scheduling training classes for the purpose of interfering with the performance of representational activities. The Arbitrator sustained the grievance and granted the relief sought by the Union. The Arbitrator also expressed his concern over the Agency's "attempt to thwart Union activities by denying official time" to employee representatives. Thus, contrary to the Agency's allegation, the Arbitrator's award does not interfere with management's right to assign work in accordance with law. Rather, the award precludes the scheduling of training solely for the improper purpose of interfering with the official time activities of employee representatives.
3. We find that the Agency has failed to establish that the Arbitrator's award regarding "exigency of business" determinations violates management's right to assign and direct employees under section 7106(a)(2)(A) and (B). Here it is again clear that the Agency has misconstrued the Arbitrator's award. The record establishes that the Arbitrator was considering a grievance resolving alleged disparate treatment and harassment of an Union representative for use of official time (Transcript at 70-95). The grievance alleged persistent refusal by management to abide by its obligations under the parties' agreement, including wrongful denials of requests for official time, annual leave, and leave without pay assertedly because of exigencies of business when, in fact, no such exigency existed. The Union maintained that the parties had agreed that the criteria for scheduling official time would be the same as for scheduling annual leave and that official time could not be cancelled or rescheduled unless there was an "exigency of public business." The Union claimed that management's actions violated the parties' agreement and asked the Arbitrator to rule accordingly. As a remedy, the Union requested, among other things, that the Arbitrator remind the Agency that in accordance with the Agency's personnel guide for supervisors, which was referred to during the parties' negotiation of their agreement, supervisors and certain other officials do not have authority to declare an "exigency of the service" and, further, that if an exigency did exist it would also require the cancelling of annual leave and the recalling of employees on leave to work. The Union also asked the Arbitrator to find that, in the circumstances involved in the grievance, management breached the collective bargaining agreement and a prior award of the Arbitrator.
It is clear, contrary to the Agency's allegation, that the Arbitrator's award does not prevent the Agency from determining that an exigency of business exists which requires the denial, cancellation, or rescheduling of official time or leave. Rather, the Arbitrator directed that such determinations be made in accordance with the collective bargaining agreement. We conclude that the Agency's allegation constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement and, therefore, that it provides no basis for finding the award deficient. Moreover, to the extent that the Agency is excepting to the prior award of the Arbitrator, its exceptions are untimely under section 7122(a) of the Statute and must be dismissed on that basis.
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., March 4, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 In its opposition, the Union requested that the Authority dismiss the Agency's exceptions on procedural grounds and also addressed the merits of the exceptions. With regard to its procedural request, the Union contends that the Agency's exceptions constitute nothing more than bare assertions and do not provide any supporting argument, legal authority, or evidence. Contrary to the Union's contention, we find that the Agency's exceptions are sufficiently supported