26:0012(3)AR AFGE VS HHS, SSA -- 1987 FLRAdec AR


[ v26 p12 ]
26:0012(3)AR
The decision of the Authority follows:


26 FLRA NO. 3

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION

     Agency

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

     Union

Case No. O-AR-1213

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. 1

II. BACKGROUND AND ARBITRATOR'S AWARD

This case is one of several in a dispute submitted by the parties to the Arbitrator 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 31, 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. EXCEPTIONS

In its exceptions, the Agency argues that: (1) the Arbitrator's award of compensation at straight-time rates for 250 minutes of non-duty time spent by an employee representative in connection with the processing of an unfair labor practice charge is contrary to the Statute; (2) the Arbitrator's determination that management was obligated to pay travel and per diem without regard to its past practice is contrary to the Travel Expense Act and Government-wide regulation; (3) the Arbitrator exceeded his authority by resolving a claim for travel and per diem that arose in 1986; and, (4) the Arbitrator was functus officio, that is, without authority to resolve claims arising before a date asserted by the Agency.

IV. ANALYSIS AND CONCLUSION

Upon careful consideration of the record before us in this matter, including the Agency's exceptions, the Union's opposition, and the transcript of the proceeding on July 31, 1986, we conclude that the Agency has failed to establish that the Arbitrator's bench decisions on that date are deficient as alleged. Specifically, we find as follows:

1. The award of compensation at straight-time rates.

The Agency alleges that the Arbitrator's award of compensation at straight-time rates for 250 minutes of non-duty  time spent by an employee representative in connection with the processing of an unfair labor practice charge is contrary to sections 7106(a)(2), 7106(b)(1) and 7131(c) of the Statute and the parties' agreement. We find that the Agency's allegations constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement. As the Agency acknowledges, the agreement provides for reasonable official time necessary for the performance of labor-management relations activities (Agency Brief at 5). The Arbitrator clearly interpreted the agreement to encompass official time for the representational activity in this case. Thus, the Agency in this exception is attempting to have its interpretation of the parties' agreement substituted for that of the Arbitrator.

More specifically, we find that the Agency's assertion that the award violates management's rights under section 7106(a)(2) and section 7106(b)(1) of the Statute is totally without merit and borders on the frivolous. The Arbitrator awarded compensation for official time he found had been wrongfully denied under the parties' collective bargaining agreement. The award does not in any way affect the Agency's rights to direct and assign the employee, to assign work to him or to establish his tour of duty as the Agency contends.

The Agency also fails to substantiate its assertion that this award is contrary to section 7131 of the Statute. The Agency argues that since the time was spent in connection with the processing of an unfair labor practice charge, the time was subject to section 7131(c) of the Statute, which provides that the Authority shall determine whether official time should be authorized and limits authorized official time to hours the employee would otherwise be in a duty status.

We reject the Agency's argument. The employee notified his supervisor that an extension of official time was necessary in order to complete certain representational activities after his regular duty day. Moreover, as the Union establishes in its opposition, the grievant requested official time under the parties' collective bargaining agreement and not pursuant to section 7131(c) of the Statute.

The Authority has previously indicated that section 7131(d) of the Statute expressly authorizes the parties to negotiate for the granting of official time for the performance of representational activities and that the Statute provides a remedy when official time under section 7131(d) is wrongfully denied. Specifically, the Authority has determined that where official time authorized by the official time provisions of a collective bargaining agreement is wrongfully denied and the representational functions are performed on non-duty time, section 7131(d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. For example, American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986), slip op. at 4-5. Moreover, the Authority has held that it is not required that an employee otherwise would have been in a duty status in order to be entitled to official time under section 7131(d). For example, U.S. Department of Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, Texas and American Federation of Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA No. 5 (1986), slip op. at 4. See also Wright - Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local 1138, 23 FLRA No. 55 (1986), where the Authority modified the award to provide compensation at straight-time rates for employees who attended an arbitration hearing as union witnesses outside their regular duty hours.

In this case, the Arbitrator effectively found that the parties' collective bargaining agreement provided for official time for an employee's representational activities in connection with the processing of unfair labor practice charges and that in the specific circumstances presented, the grievant was entitled to 250 minutes of official time under the agreement. The Arbitrator therefore effectively found that all of the conditions of section 7131(d) had been met. Consequently, we find that the Arbitrator properly awarded the grievant compensation for the amount of non-duty time spent performing the representational activities involved and that the award is not deficient as alleged.

2. The Arbitrator's ruling that management was obligated to pay travel and per diem regardless of past practice.

We find that the Agency has misconstrued the Arbitrator's ruling and has not given due consideration to the context in which the ruling was rendered (Transcript, Vol. III, July 31, 1986, at 229-32). The Arbitrator was considering a union claim concerning a supervisor's denial of a request for travel expenses for an employee engaged in representational activities on official time on July 22, 1986. The supervisor allegedly denied the request because there was no established practice in that locale in June 1982 for paying such expenses. The Union claimed that the supervisor's action was contrary to a May 1985 ruling by the Arbitrator in this dispute, in which the Arbitrator determined that the parties had negotiated, consistent with section 7131(d) of the Statute, a provision in their national agreement for the payment of travel and per diem expenses for employees on official time. The Union further claimed that it was not required that travel and per diem only be paid in accordance with past practice in particular locations and that the Agency's arguments to that effect had previously been rejected. The Union asked the Arbitrator to rule that management's refusal to pay the employee's travel expenses violated his prior award and to order the Agency to pay travel and per diem regardless of past practice in the local. The Union also asked the Arbitrator to order the Agency to process and pay the employee's travel voucher to the extent allowed by the Federal Travel Regulations. The Arbitrator ruled in favor of the Union's claims and ordered the remedy requested.

It is clear that the Arbitrator did not order the Agency to pay any and all travel and per diem claims without regard for statutory and regulatory requirements as the Agency alleges. Rather, it is clear that the Arbitrator ordered the Agency to pay travel and per diem in accordance with its obligation under its collective bargaining agreement as interpreted by the Arbitrator and consistent with applicable law and Government-wide regulation. We find that the Agency's allegations are totally without merit and must be denied. Moreover, to the extent that the Agency's exceptions in this case could be construed as exceptions to the Arbitrator's May 1985 award referred to by the Union, such exceptions are untimely under section 7122(a) of the Statute and must be dismissed on that basis.

3. The authority of the Arbitrator to resolve a claim for travel and per diem that arose in 1986.

The Agency argues that the Arbitrator exceeded his authority by resolving a claim that was not part of the grievance before him. The Agency has made and the Authority has  rejected this argument in exceptions to other bench awards of the Arbitrator in this dispute between the parties. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL - CIO, 22 FLRA No. 16 (1986), slip op. at 6-7, request for reconsideration denied (Aug. 15, 1986); American Federation of Government Employees and Social Security Administration, 25 FLRA No. 12 (1987), slip op. at 4-5, 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), slip op. at 7-8. The Authority has determined that the Arbitrator was authorized by the parties to resolve claims arising after the date the Agency asserts is the cut off date for all claims. For the reasons set forth in the cited decisions, we find that the contested claim in this case was integrally related to the dispute before the Arbitrator and that the Agency has failed to establish that the Arbitrator was without authority to resolve it.

4. The authority of the Arbitrator to resolve claims arising prior to a date determined by the Agency.

The Agency contends that the Arbitrator was functus officio, that is, without authority, to resolve claims arising prior to a particular time because the Agency had agreed to pay all such claims. In support of its contention, the Agency incorporates by reference arguments previously raised and rejected by the Authority in another case, Social Security Administration, 25 FLRA No. 12, slip op. at 4-5.

As we found in our decision in that case, the Agency's purported "agreement" to pay all claims was actually a limited offer to enter into a consent agreement to pay some claims. We concluded that the dispute with its numerous individual grievances and related ancilliary issues was not resolved by the Agency's limited offer to comply with the Arbitrator's earlier awards in this matter. For the reasons set forth in the cited decision, we also reject the Agency's argument here that the Arbitrator was without authority to resolve the disputed claims before him in this proceeding.

Upon consideration, we conclude that the Agency's assertions in support of its exceptions constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions and with his interpretation and application of the parties' collective bargaining agreement in resolving, the dispute before him and an attempt to relitigate the matter before the Authority. Such assertions provide no basis for finding