27:0706(78)AR - HHS, SSA and AFGE -- 1987 FLRAdec AR



[ v27 p706 ]
27:0706(78)AR
The decision of the Authority follows:


 27 FLRA No. 78
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL 
 SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-1239
 
                                 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 September 9,
 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 Arbitrator's specific bench awards
 related to the official time dispute are contrary to law.  The Agency
 alleges that the Arbitrator violated:  (1) the Arbitration Act, 9 U.S.C.
 Section 10(a), by denying its motion to remove those claims which the
 Agency had agreed to pay from the arbitration process and by ordering
 that the Agency could not receive copies of exhibits submitted by the
 Union at the hearing;  (2) the Travel Expense Act, 5 U.S.C. Section 5701
 et seq., and decisions of the Comptroller General by ordering Mary Ellen
 Shea to be reimbursed for telephone calls and photocopying expenses,
 incorporating by reference arguments made in support of similar
 exceptions to another award of Arbitrator Smith filed with the Authority
 and addressed in 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. 87-3803 (4th
 Cir. April 21, 1987);  (3) section 7131(d) of the Statute by awarding
 straight time as a remedy for wrongfully denied official time because
 there were no requests for or denials of official time for the Union
 representatives prior to their working on their personal time;  and (4)
 section 7114(b)(4)(C) of the Statute by ordering the Agency to provide
 documents to the Union which constitute guidance, advice, counsel, or
 training for management officials or supervisors relating to collective
 bargaining, grievances, specifically information concerning how to
 implement awards of Arbitrator Smith and how to deal with Union requests
 for official time.
 
                        B.  Analysis and Conclusion
 
    We find that the four grounds asserted by the Agency for finding the
 awards contrary to law are without merit.  More specifically:
 
    (1) We find that the Agency has failed to establish that the
 Arbitrator's award is contrary to the Arbitration Act.  In this regard,
 as we have stated in resolving similar exceptions of the Agency in other
 cases, arbitration in the Federal sector is governed by the provision of
 the Federal Service Labor-Management Relations Statute and not the
 provisions of the Arbitration Act.  Social Security Administration, 25
 FLRA No. 12, slip op. at 5.  Further, even if the Arbitration Act were
 applicable, with regard to the Agency's assertion that the Arbitrator
 violated section 10(a) of the Act by denying its motion to remove
 certain claims from the arbitration process, it is clear from the record
 that the Arbitrator denied this motion based upon the Agency's inability
 to document its assertion that the disputed claims had in fact been paid
 and the Agency's refusal to abide by the Arbitrator's awards and to make
 individuals involved in this protracted dispute whole for wrongfully
 denied official time and related travel and per diem expenses.
 Transcript (Tr.) at 39-41;  Union opposition at 9-12.  Thus, it is clear
 from the record that the Agency has failed to establish that the
 Arbitrator violated law by denying the Agency's motion and adjudicating
 the numerous individual grievances and ancillary issues.
 
    As to the Agency's assertion that the Arbitrator violated 9 U.S.C.
 Section 10(a) by allegedly ordering that the Agency could not receive
 copies of the Union's exhibits submitted at the hearing, it is clear
 from the record that prior to the first phase of the arbitration the
 parties agreed that exhibits would be exchanged at the hearing and that
 during the time in which the Agency participated in the hearing, it
 received copies of all the exhibits submitted by the Union, and that all
 exhibits were read into the record.  Tr. at 75-81;  Union opposition at
 14-15.  Thus, the Agency has failed to establish that the Arbitrator's
 ruling violates law.
 
    Moreover, the thrust of the Agency's exception is that it was denied
 a fair hearing and disagrees with the manner in which the Arbitrator
 conducted the hearing.  It is well established that an arbitrator has
 considerable latitude in the conduct of a hearing.  The fact that the
 Arbitrator conducted the hearing in a manner which one party finds
 objectionable does not support a contention that the Arbitrator denied
 the party a fair hearing.  U.S. Department of Health and Human Services,
 Social Security Administration and American Federation of Government
 Employees, Local 547, 24 FLRA No. 93 (1986).  Accordingly, this
 exception must be denied.
 
    (2) We find that the Agency has failed to establish that the
 Arbitrator's award is contrary to the Travel Expense Act and decisions
 of the Comptroller General.  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 op. 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.  For example, id.; American
 Federation of Government Employees, Local 1923 and Social Security
 Administration, Bureaus and Offices, 12 FLRA 511 (1983);  General
 Services Administration and American Federation of Government Employees,
 Council 236, 15 FLRA 328 (1984);  Department of Health and Human
 Services, Social Security Administration and Local 3369, American
 Federation of Government Employees, 21 FLRA No. 23 (1986).  Accordingly,
 this exception must be denied.
 
    (3) 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 has failed to
 establish that the Arbitrator violated section 7131(d) of the Statute.
 See also Department of Health and Human Services, Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 27 FLRA No. 54 (1987);  Social Security Administration, 25 FLRA No. 33;
 Social Security Administration, 25 FLRA No. 12;  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 in each bench decision effectively 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 and 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.
 
    (4) We find that the Agency has failed to establish that the
 Arbitrator's award directing the Agency to provide certain memoranda in
 the proceeding violates section 7114(b)(4)(C) of the Statute.  The
 Agency argues that the memoranda constitute advice and guidance to
 managers and supervisors within the meaning of section 7114(b)(4)(C)
 and, therefore, that it cannot be required to provide the information.
 We find that the Agency's argument is without merit.
 
    At the hearing on September 9, 1986, the Agency moved that the
 Arbitrator cancel the hearing on the ground that the employees' claims
 which were the subject of the hearing had been or would be paid.  Tr. at
 14-16.  The Agency asserted that a letter or memorandum instructing its
 Regional Offices to pay employee claims for reimbursement at straight
 time rates had been provided to the Arbitrator and to the Union.  Tr. at
 7-12.  The Agency also indicated that copies of memoranda from the
 Regional Offices documenting the payment of claims had been or would be
 sent to the Union.  Tr. at 13, 44.
 
    In response, the Union disputed the Agency's assertions.  The Union
 maintained that it had not received copies of the Agency's memoranda or
 documentation.  Tr. at 8-9.  The Union also argued that while the Agency
 had asserted throughout the entire arbitration proceeding that it was
 abiding by the official time provisions of the parties' agreement and
 the Arbitrator's bench awards, the Agency was not complying and the
 employees were not being paid.  Tr. at 24-29, 35-38, 43-44, 46-60,
 62-66.  The Union also contended that the Agency had issued memoranda to
 managers concerning implementation of the Arbitrator's awards in this
 matter and instructions regarding the handling of official time claims.
 The Union requested that the Arbitrator order the Agency to produce
 copies of those memoranda.  In ruling on the Agency's motion and the
 Union's request, the Arbitrator ordered the Agency to produce the
 memoranda described by the Union.  Tr. at 45.  When the Agency refused
 to produce the documents, and maintained that it would continue to
 refuse to produce the documents, the Arbitrator denied the Agency's
 request to cancel the hearing.  Tr. at 41, 45.
 
    It is well established that once the parties to a collective
 bargaining agreement "submit the subject matter of a dispute to
 arbitration, 'procedural' questions which grow out of the dispute and
 bear on its resolution should be left to the arbitrator." John Wiley and
 Sons v. Livingston, 376 F.2d 543, 577 (1963).  Moreover, under this
 principle, an arbitrator has authority to rule on procedural matters
 such as requests for discovery of information.  See Great Scott
 Supermarkets, Inc. v. Local Union No. 337, International Brotherhood of
 Teamsters, 363 F. Supp. 1351 (1972).  Thus, it is properly the function
 of an arbitrator to determine the relevance and materiality of documents
 and other evidence requested by a party in a proceeding and whether
 production should be ordered.
 
    In this case, the procedural question regarding production of the
 Agency's memoranda grew out of the dispute as to whether employees'
 official time and related travel and per diem expenses had been or were
 being paid as the Agency asserted or whether the Agency had improperly
 instructed its managers not to implement the Arbitrator's awards and to
 deny employee claims as the Union contended.  The memoranda therefore
 had a direct bearing on the resolution of that aspect of the parties'
 dispute.  The Union did not request the memoranda and the Arbitrator did
 not order the Agency to produce them under section 7114(c)(4) of the
 Statute.  The Union sought discovery of the documents to establish facts
 in the proceeding concerning the Agency's compliance or noncompliance
 with the Arbitrator's awards.  The Arbitrator in essence simply
 determined that they were relevant and material to resolution of the
 dispute.  The Agency as a party to the proceeding was subject to such
 rulings by the Arbitrator.  The Agency has not shown that the
 Arbitrator's ruling is contrary to law, as alleged.  Accordingly, this
 exception must be denied.
 
                          III.  Second 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 and which were filed after the date the Agency asserts is the cutoff
 date for all claims.
 
                        B.  Analysis and Conclusion
 
    We conclude that the Agency has failed to establish that the
 Arbitrator exceeded his authority.
 
    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 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.  As noted above, such
 disagreement provides no basis for finding an award deficient under the
 Statute.  See also 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.  Social Security Administration, 27
 FLRA No. 54, slip op. at 10-11;  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 contention to the contrary, that the
 Arbitrator was authorized by the parties to resolve claims arising after
 the date the Agency asserts is the cutoff date.  The Agency's exception
 therefore must be denied.
 
                           IV.  Third Exception
 
                              A.  Contentions
 
    The Agency contends that the Arbitrator's specific bench decisions on
 the official time dispute do not draw their essence from the collective
 bargaining agreement on two grounds:  (1) by ordering the Agency to
 reimburse Mary Ellen Shea for postage, telephone calls, and photocopying
 expenses because the collective bargaining agreement restricts the
 Union's right to use Agency facilities without cost;  and (2) by
 ordering the Agency to reimburse trainees for expenses resulting from
 Union-sponsored training because it was rendered without regard to
 fiscal considerations.
 
                       B.  Analysis and Conclusions
 
    We conclude that the Agency has failed to establish that the
 Arbitrator's awards fail to draw their essence from the parties'
 collective bargaining agreement.  In his awards the Arbitrator
 interpreted the relevant provisions of the parties' agreement to cover
 the expenses contested by the Agency in its exception.  Thus, the
 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 are an
 attempt to relitigate the merits of the dispute before the Authority.
 Consequently, this exception does not provide a basis for finding the
 award deficient and must be denied.  See Social Security Administration,
 25 FLRA No. 12, slip op. at 5;  Social Security Administration, 25 FLRA
 No. 33,