27:0114(22)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR



[ v27 p114 ]
27:0114(22)AR
The decision of the Authority follows:


 27 FLRA No. 22
 
 DEPARTMENT OF HEALTH 
 AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. O-AR-1210
                                             (25 FLRA No. 33)
 
                 ORDER DENYING MOTIONS FOR RECONSIDERATION
 
                         I.  Statement of the Case
 
    This matter is before us on requests filed by the Agency and the
 Union seeking reconsideration of our decision of February 3, 1987.  The
 Agency also filed a request for a stay of our decision.
 
    In our decision, after careful consideration of the record, we
 determined that the Agency had failed to establish that a number of the
 Arbitrator's bench awards were deficient on any of the grounds set forth
 in section 7122(a) of the Federal Service Labor-Management Relations
 Statute (the Statute).  Accordingly, we denied the Agency's exceptions
 to those bench awards.  We also set aside one of the Arbitrator's bench
 awards as contrary to section 7106(a)(2)(B) of the Statute.
 
    Section 2429.17 of the Authority's Rules and Regulations permits a
 party that can establish "extraordinary circumstances" to request
 reconsideration of a decision of the Authority.
 
                         II.  The Agency's Request
 
    In its request, the Agency seeks reconsideration of our decision with
 respect to two of the bench awards.  The Agency argues that our decision
 denying the Agency's exceptions to those two awards was not based on an
 accurate interpretation of the facts.  Specifically, the Agency contends
 that (1) the Arbitrator's decision concerning straight-time payments for
 improperly denied official time is based on a non-fact, and (2) the
 decision concerning the photocopying machine is ambiguous and without
 basis in the record.  We conclude that the Agency has not established
 "extraordinary circumstances" within the meaning of section 2429.17.
 Rather, the arguments presented by the Agency in suppport of its request
 constitute nothing more than disagreement with the merits of our
 decision and an attempt to relitigate the matter.  The Agency's request
 for reconsideration must be denied.
 
                         III.  The Union's Request
 
                       A.  Positions of the Parties
 
    In its request, the Union seeks reconsideration of our decision
 setting aside one of the Arbitrator's bench awards, specifically his
 award of tuition, fees, official time, and travel and per diem for Mary
 Ellen Shea to attend Harvard University for the academic year 1986-1987,
 to obtain a masters degree in public administration.  Based on
 precendent in negotiability cases involving proposals to require
 management to provide specific formal training or to assign employees to
 specific training programs during working hours, we held that the
 Arbitrator's award was contrary to section 7106(a)(2)(B) of the Statute.
  In general, the Union contends that the Authority misconstrued certain
 facts central to the case, misinterpreted the Arbitrator's award, and
 misapplied its decisions in other cases in this dispute.
 
    Specifically, the Union argues that the Authority misconstrued Ms.
 Shea's attendance at Harvard as that of a federal employee on a career
 path rather than that of a union leader seeking to improve her advocacy
 skills.  The Union maintains that since Ms. Shea was a Union official on
 100 percent official time who had been designated by the Union to attend
 the Harvard program, her attendance was the result of her Union rather
 than federal employee responsibilities and that the Arbitrator's award
 was simply a reallocation of Union priorities.
 
    The Union further argues that the Arbitrator only awarded Ms. Shea
 official time and not tuition, books or travel and per diem.  The Union
 maintains that it only asked the Arbitrator to order the Agency to
 approve official time and to furnish the Union with information
 concerning training for all employees for the previous four years,
 includings information regarding official time, tuition, expenses, fees,
 and travel and per diem.
 
    The Union also argues that the cases cited by the Authority in the
 disputed decision are distinguishable from the situation in this case
 because they involved training for employees rather than training for
 union officials.  The Union argues that since the Authority has held
 that an arbitrator may award official time for union-sponsored or third
 party training pursuant to a collective bargaining agreement and that a
 provision for 100 percent official time may be reasonable, an award of
 official time for the 10-month masters program in this case is not
 deficient.
 
    Additionally, the Union contends that although the Agency initially
 approved official time for Ms. Shea to attend the Harvard program, the
 Agency unilaterally rescinded its approval after receiving our decision
 in this case, improperly denied her request for leave without pay
 (LWOP), ordered her to return to work before completing the program, and
 threatened her with termination if she failed to do so.
 
    In its opposition to the Union's request for reconsideration, the
 Agency argues that the record establishes that Ms. Shea sought to attend
 the Harvard program for personal reasons to advance her interest in
 pursuing a career in the field of labor relations.  The Agency also
 argues that the transcript of the proceeding before the Arbitrator
 supports a finding that the Union was seeking and the Arbitrator awarded
 tuition, books, fees, and travel and per diem for Ms. Shea.  The Agency
 further argues that the Authority's determination that the award was
 deficient was consistent with previous decisions of the Authority
 concerning the assignment of specific training to employees during duty
 hours.  Finally, the Agency maintains that the Union's allegations that
 the Agency plans to fire Ms. Shea are not supported by the record and
 are not true.
 
                       B.  Analysis and Conclusions
 
    The Union's argument in its request for reconsideration do not
 establish the existence of "extraordinary circumstances" within the
 meaning of section 2429.17 of the Authority's Rules and Regulations.
 
    First, the Union's arguments that the Authority misconstrued certain
 facts in the case and misinterpreted the Arbitrator's award constitute
 nothing more than disagreement with the decision and an attempt to
 relitigate the matter.
 
    As to the Union's contention that the Authority misapplied precedent
 in deciding this case, this contention likewise amounts to nothing more
 than disagreement with the merits of our decision.  Subsequent to our
 determination in this case, we issued a decision in Military Entrance
 Processing Station, Los Angeles, California, 25 FLRA No. 57 (1987), in
 which we held that section 7131(d) "carves out an exception" to
 management's rights to assign work and that official time negotiated
 under 7131(d) does not violate management's right to assign work
 notwithstanding other provisions of the Statute.  Slip op. at 4.
 However, that decision does not warrant reconsideration of this case.
 
    We find that the approximately 10 months of official time awarded by
 the Arbitrator for the employee to obtain a masters degree in public
 administration is not an appropriate use of official time as
 contemplated by section 7131 of the Statute.  That is, in the
 circumstances of this case, the official time ordered by the Arbitrator
 is not authorized under section 7131 of the Statute for the purpose
 described.  So far as the record indicates, the predominant purposes and
 benefits of the course of study appear to be personal to the employee.
 No showing was made in the case of the sort of direct relationship
 between the course of study and working conditions of employees that
 would serve to bring the use of official time ordered by the Arbitrator
 within the scope of section 7131.  The Arbitrator's award of official
 time, with or without an award of tuition, books, fees and travel and
 per diem expenses for the masters degree program, is therefore
 deficient, notwithstanding our decision in Military Entrance Processing
 Station.
 
    With regard to the Union's allegation that the Agency improperly
 denied Ms. Shea's request for leave without pay, as we noted in our
 decision, the Arbitrator did not rule on the employee's entitlement to
 LWOP in this proceeding and that issue was not before us in deciding the
 case.  As to the Union's assertions that the Agency has improperly
 ordered the employee to return to work before completing the program and
 before the Arbitrator has an opportunity to rule on her entitlement to
 LWOP, and that the Agency has threatened the employee with removal if
 she fails to return as ordered, the alleged actions were also not before
 us in deciding the case.  We conclude that the Union has failed to
 establish any extraordinary circumstances for reconsidering our decision
 in this case.
 
                                IV.  Order
 
    Accordingly, for the reasons stated above, the requests for
 reconsideration are denied.  The Agency's request for a stay is likewise
 denied.
 
    Issued, Washington, D.C., May 28, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member