27:0391(54)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR



[ v27 p391 ]
27:0391(54)AR
The decision of the Authority follows:


 27 FLRA No. 54
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-1241
 
                                 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 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 September 10,
 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 portion of the award which requires the
 Agency to reimburse Stephen Castellina for two hours of leave without
 pay and travel and per diem expenses for time spent representing a
 former employee in an unemployment compensation hearing is contrary to
 section 7131 of the Statute.  In support of its contention, the Agency
 essentially argues that official time and related travel and per diem
 expenses may only be authorized for representational activities in
 labor-management relations matters covered by the Statute.
 
    B.  Analysis and Conclusion
 
    We agree with the Agency's contention that the Arbitrator's award is
 contrary to section 7131.  In National Archives Records Administration
 and American Federation of Government Employees, Council 236, Local
 2928, 24 FLRA No. 29 (1986), we held that while under section 7131(d)
 agencies and labor organizations may negotiate official time that is
 reasonable, necessary and in the public interest, official time granted
 under the negotiated provisions must be used in connection with
 labor-management relations activities covered by the Statute.  Slip op.
 at 4.  In this case, there is no indication in the record that Mr.
 Castellina's assistance at the unemployment compensation hearing was
 related to any labor-management relations activities under the Statute.
 We therefore conclude that official time for assisting the former
 employee in that proceeding could not be authorized under section
 7131(d).  See National Archives and Records Administration, slip op. at
 3.  See also American Federation of Government Employees, Local 2094,
 AFL-CIO and Veterans Administration Medical Center, New York, New York,
 19 FLRA 1027, 1029 (1985).  In his award, the Arbitrator effectively
 determined that the Agency had agreed to pay the travel and per diem
 expenses related to the labor-management relations activities covered by
 the official time provisions of the parties' agreement.  Since Mr.
 Castellina was not entitled to official time for his assistance at the
 unemployment compensation hearing, he is not entitled to receive travel
 and per diem expenses.  Consequently, to the extent the Arbitrator's
 award sustained the grievance and ordered reimbursement for the two
 hours of leave without pay taken by Mr. Castellina to assist at the
 unemployment compensation hearing and for his related travel and per
 diem expenses, it is deficient as contrary to section 7131(d) of the
 Statute.  /2/
 
    In its opposition the Union asserts that the issue of entitlement
 under the parties' agreement to official time for representing unit
 employees at employment compensation hearings had been previously
 litigated before another arbitrator, Arbitrator Cahn, and resolved in
 the Union's favor.  The Union further asserts that in an award rendered
 on May 26, 1986, Arbitrator Smith approved official time for Union
 representative Bigelow to represent an employee at an employment
 compensation hearing based on Arbitrator Cahn's award.  Thus, since the
 Agency did not file exceptions with the Authority to either Arbitrator
 Cahn's award or Arbitrator Smith's May 26 award, it acknowledged the
 legitimacy of those awards and they should be controlling in this case.
 
    The Union's argument is without merit.  It is well established that
 an arbitrator's award in one case is without precedential effect on the
 outcome of another case.  See, for example, San Antonio Air Force
 Logistics Center, Kelly Air Force Base, Texas and American Federation of
 Government Employees, Local 1617, 7 FLRA 553, 557 (1982).
 
                           IV.  Second Exception
 
    A.  Contentions
 
    The Agency contends that the portion of the award which requires the
 Agency to pay travel and per diem expenses and to grant official time
 for a number of employees to attend certain Union Local Executive Board
 meetings is contrary to the Travel Expense Act, 5 U.S.C. (5701 et seq.,
 and section 7131(b) of the Statute.  In support of its contention the
 Agency argues that the travel was not in the primary interest of the
 Government and that the Local Executive Board meetings solely concerned
 internal Union business.
 
    B.  Analysis and Conclusions
 
    We disagree with the Agency's contention that the Arbitrator's award
 is contrary to section 7131(b) of the Statute or the Travel Expense Act.
  Section 7131(b) requires that "any activities" by an employee relating
 to internal union business must be performed while the employee is in a
 nonduty status.  Service Employees International Union, Local 556,
 AFL-CIO, 17 FLRA 862 (1985).  If the Local Executive Board meeting
 related to internal union business, within the meaning of section
 7131(b) of the Statute, attendance must be on nonduty time, Military
 Department of Arkansas, Office of the Adjutant General, Arkansas
 National Guard and Local 1671, National Federation of Federal Employees,
 23 FLRA No. 12 (1986), and the Arbitrator's award of official time for
 such attendance would be modified.  However, in its opposition, the
 Union establishes that, based on the evidence presented to the
 Arbitrator, all claims for official time for meetings which involved
 internal Union business were excluded from consideration and that only
 those claims for official time for meetings which solely involved
 legitimate labor-management relations activities under the Statute, for
 example, grievances, were submitted to the Arbitrator.  See Union's
 opposition at 20-21.  Thus, the Agency's arguments constitute nothing
 more than disagreement with the Arbitrator's interpretation and
 application of the official time provisions of the parties' agreement.
 It is well established that such disagreement does not constitute a
 basis for finding the award deficient.  This exception must be denied.
 
                            V.  Third Exception
 
    A.  Contentions
 
    The Agency contends that the portions of the award which require the
 Agency to make Mary Ellen Shea, an elected officer in the Society of
 Federal Labor Relations Professionals (SFLRP), whole for travel and per
 diem expenses and leave used to attend a SFLRP Executive Board meeting
 and regular monthly meetings, and to make Percy Daley whole for leave
 used to attend a SFLRP seminar are contrary to section 7106(a)(2) of the
 Statute.  In support of its contentions, the Agency argues that the
 awards require management to assign specific employees to specific types
 of training during duty hours in violation of its management right to
 assign work and to assign and direct employees.  The Agency also
 contends that the Arbitrator exceeded his authority.
 
    B.  Analysis and Conclusions
 
    As to the award concerning Mr. Daley, we find that attendance at
 SFLRP training seminars is an appropriate use of official time under
 section 7131 of the Statute and that the Agency has failed to establish
 that this award is deficient.
 
    As indicated above with respect to the Agency's first exception,
 section 7131(d) of the Statute expressly authorizes the parties to
 negotiate for the granting of official time for the performance of
 labor-management relations functions.  As also noted above, the dispute
 submitted to the Arbitrator required the application of the official
 time provisions of the parties' agreement to various pending grievances.
  In resolving the grievance of Mr. Daley, the Arbitrator determined that
 under the parties' official time provisions which were negotiated
 pursuant to section 7131(d), the attendance at the SFLRP seminar was an
 appropriate activity to be performed on official time.
 
    The Arbitrator's determination is consistent with section 7131.  See
 Department of Health and Human Services, Social Security Administration
 and American Federation of Government Employees, AFL-CIO, 25 FLRA No.
 33, slip op. at 5-6 (1987), request for reconsideration denied, 27 FLRA
 No. 22 (1987) (the Arbitrator's award of official time and travel and
 per diem expenses to attend union-sponsored labor-management relations
 training was consistent with the Statute).  As to the Agency's argument
 that the award is contrary to section 7106(a)(2) of the Statute, we find
 that this argument is without merit.  We have previously held that
 section 7131(d) "carves out an exception" to management's right to
 assign work under section 7106(a)(2) and that official time under
 section 7131(d) does not violate management's right to assign work
 notwithstanding other provisions of the Statute.  Military Entrance
 Processing Station, Los Angeles, California and American Federation of
 Government Employees, Local 2866, AFL-CIO, 25 FLRA No. 57, slip op. at 4
 (1987).
 
    In this case, we likewise hold that the Arbitrator's award of
 official time to Mr. Daley does not violate management's right to assign
 work, or its rights to assign and direct employees, under section
 7106(a)(2) as the Agency alleges.  The Agency has also failed to
 substantiate its allegation that the Arbitrator exceeded his authority.
 
    However, with regard to the Arbitrator's award concerning Ms. Shea,
 we find that attendance at SFLRP Executive Board meetings and regular
 monthly meetings is not an appropriate use of official time contemplated
 by section 7131 of the Statute.  That is, the official time ordered by
 the Statute is not authorized under section 7131(d) for the purposes
 described.  So far as the record indicates, the predominent purposes and
 benefits of the meetings appear to concern the SFLRP organization.
 There is no showing of the sort of direct relationship between the
 meetings and working conditions of employees that would serve to bring
 the meetings within the ambit of section 7131.  In contrast to
 attendance at SFLRP seminars, which provide training on Federal
 labor-management relations issues for attendees, SFLRP Executive Board
 meetings and regular monthly meetings appear to deal primarily with the
 operations of the organization.  We conclude that official time for
 attending such meetings does not fall within the coverage of section
 7131(d).  Consequently, the Arbitrator's award of official time and
 related travel and per diem expenses for those purposes is deficient and
 must be set aside.  See National Archives and Records Administration, 24
 FLRA No. 29, slip op. at 3;  Veterans Administration Medical Center, New
 York, New York, 19 FLRA 1027, 1029.
 
                           VI.  Fourth Exception
 
    A.  Contentions
 
    The Agency contends that the portion of the award which requires the
 Agency to give Dave Gurule unrestricted use of the office photocopy
 machine is contrary to section 7106 of the Statute.  The Agency also
 contends the award does not draw its essence from the collective
 bargaining agreement.  The Agency acknowledges that the parties'
 agreement provides "the Administration agrees to furnish, where
 available, customary and routine services which are consistent with the
 best interest of the employer, employees and the union.  Such services
 include . . . photocopy equipment," and that "it is agreed and
 understood that any prior benefit and practices and understanding which
 were in effect on the effective date of this agreement at any level . .
 . and which are not specifically covered by this agreement and do not
 detract from it shall not be changed except in accordance with 5 USC
 71." Exceptions at 4.  The Agency argues that the Arbitrator's finding
 that the parties' past practice allowed the Union unrestricted use of
 the office photocopy machine enforces the agreement and the parties'
 past practice in such a way as to preclude management from assigning
 photocopy duties to employees and to restrict access to its equipment in
 the assignment of duties.
 
    B.  Analysis and Conclusion
 
    We find that the Agency has failed to establish that the award is
 deficient as alleged.  It is undisputed that the provisions of the
 parties' agreement allow the Union access to the photocopy machine in
 accordance with past practice.  In his award, the Arbitrator merely
 required that the Agency allow Mr. Gurule access to the office photocopy
 machine based on the Arbitrator's interpretation of the parties'
 agreement and on his finding that the parties' established past practice
 allowed the Union unrestricted use of the photocopy machine.  Thus, the
 thrust of the Agency's exception constitutes nothing more than
 disagreement with the Arbitrator's interpretation and application of the
 pertinent provisions of the parties' collective bargaining agreement.
 It is well established that such disagreement does not provide a basis
 for finding an award deficient.  Social Security Administration, 25 FLRA
 No. 33, slip op. at 5.  Accordingly, this exception must be denied.
 
                           VII.  Fifth Exception
 
    A.  Contentions
 
    The Agency contends that the portion of the Arbitrator's award which
 requires the Agency to recredit two hours of annual leave taken by
 William Bain on Feburary 19, 1986, is contrary to section 7131(d) of the
 Statute.
 
    B.  Analysis and Conclusion
 
    We find that the Agency has failed to establish that the Arbitrator's
 award is deficient as alleged.  In this case, the Agency had approved
 official time from February 19, 1986, through March 21, 1876, for Mr.
 Bain to negotiate a supplemental agreement.  February 19 was approved as
 his travel day.  The record reveals that, between 8:00 a.m. and 10:00
 a.m. on February 19, Mr. Bain packed his car with 12 boxes of documents
 he needed for the negotiations.  At 10:00 a.m. Mr. Bain went to his
 office to pick up additional documents needed for the negotiations and
 his pay check.  The Agency revoked its previous grant of official time
 and required Mr. Bain to take annual leave for the two hours between
 8:00 a.m. and 10:00 a.m.  The Arbitrator by his award effectively found
 that the Agency had wrongfully revoked its previous grant of official
 time and that under the parties' agreement, Mr. Bain was entitled to the
 restoration of his annual leave.  The Arbitrator's award requiring the
 Agency to recredit the annual leave taken for the period when official
 time was wrongfully revoked is not deficient as alleged.  See Veterans
 Administration Medical Center, Brockton, Massachausetts and National
 Association of Government Employees, Local R1-25, 21 FLRA No. 50, slip
 op. at 4 (1986).  Accordingly, this exception must be denied.
 
                          VIII.  Sixth Exception
 
    A.  Contentions
 
    The Agency contends those portions of the Arbitrator's award which
 require the Agency to reimburse Mary Ellen Shea and Charles Stevens for
 telephone calls and telegram expenses are deficient because they do not
 draw their essence from the parties' collective bargaining agreement,
 were made in excess of the Arbitrator's authority, and are contrary to
 law and Government-wide regulations, specifically 31 U.S.C. Sections
 1348(a)(1), (b) and 1982.  In support of its contentions the Agency
 argues that no evidence was submitted at the hearing as to the nature of
 the calls or the identity of the persons called and incorporated by
 reference arguments made in support of similar exceptions to another
 award of Arbitrator Smith filed with the Authority and addressed in
 Social Security Administration, 25 FLRA No. 12.
 
    B.  Analysis and Conclusion
 
    We find that the Agency has failed to establish that the award is
 deficient as alleged.  Contrary to the Agency's argument, it is apparent
 from the record that evidence was submitted to the Arbitrator which
 identified the individuals called and established the nature of those
 calls as legitimate labor-management activities.  Transcript at 155-159,
 164-165;  Union's Opposition at 22.  Thus, as we noted in rejecting the
 Agency's arguments in Social Security Administration, 25 FLRA No. 12,
 "it is clear that the grievances resolved were integrally related to the
 dispute before (the Arbitrator)." Slip of. at 5.  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.  Such disagreement provides no basis for finding
 an award deficient under the Statute.  Accordingly, this exception must
 be denied.
 
                          IX.  Seventh Exception
 
    A.  Contentions
 
    The Agency contends that the portions of the award granting employees
 compensation at straight-time rates as a remedy for the wrongfully
 denied official time are contrary to section 7131(d) of the Statute
 because there was no evidence that the employees actually requested and
 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), that the Agency's argument that
 the Arbitrator violated section 7131(d) of the Statute is without merit.
  See also Social Security Administration, 25 FLRA No. 33;  American
 Federation of Government Employees and Social Security Administration,
 25 FLRA No. 12 (1987), request for reconsideration denied (Feb. 3,
 1987), petition for review dismissed sub nom. Department of Health and
 Human Services v. FLRA, No. 87-3808 (4th Cir. April 21, 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.
 
                           X.  Eighth Exception
 
    A.  Contentions
 
    The Agency contends that the Arbitrator exceeded his authority
 because he ruled on claims which were not part of the grievance before
 him.  The Agency also asserts that the Arbitrator's authority extended
 only to claims filed prior to September 1985 and that in this proceeding
 the Arbitrator resolved claims filed in 1986.
 
    B.  Analysis and Conclusion
 
    With regard to the Agency's assertion that the Arbitrator exceeded
 his uthority 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 the Arbitrator 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. 33, slip op. at 7-8;  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 were filed after the date the
 Agency asserts is the cutoff date for all claims, we find that the
 agency's argument is totally without merit.  The Agency has repeatedly
 made and the Authority has uniformly rejected this identical assertion
 in a number of other cases involving 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, 26 FLRA No. 3, slip op. at 5-6 (1987), request for
 reconsideration denied, 26 FLRA No. 91 (1987);  Social Security
 Administration, 25 FLRA No. 33, slip op. at 7-8;  Social Security
 Administration, 25 FLRA No. 12, slip op. at 4-5;  Social Security
 Administration, 22 FLRA No. 16, slip op. at 6-7.  It remains clear,
 despite the Agency's continued contentions to the contrary, that the
 Arbitrator was authorized by the parties to resolve claims arising after