29:0247(24)AR AFGE, LOCAL 1346 VS HHS, SSA



[ v29 p247 ]
29:0247(24)AR
The decision of the Authority follows:


29 FLRA NO. 24


DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION

                   Agency

     and

LOCAL 1346, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

                   Union

Case No. 0-AR-1383

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Neil M. Gundermann filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, the Union's exception is denied.

II. Background

The grievant is a Field Representative (F/R) in the Agency's Milwaukee District Office and is also a Union steward. In late 1984, management asked the grievant, who was assigned to the West Area, if he would be willing to switch territories with the F/R assigned to the East Area. The grievant declined to switch. Management later proposed that the boundaries of the East Area and West Area be realigned. In his capacity as Union steward, the grievant asked to negotiate on the proposed changes. Because numerous training programs were in progress, no negotiations ever occurred. Additionally, the proposed change in assignment of the two F/Rs was not implemented.

In February 1985, management reviewed its operations and determined that, since both the grievant and the other F/R had been in their respective areas for a considerable period of time, there was not sufficient back-up for either area. In June 1985, Management announced that the grievant would be switched to the East Area, and the F/R in the East Area would take over the West Area. As a result of the switch in areas, the grievant filed a grievance alleging that the switch constituted sex and age discrimination.

The Arbitrator framed the issues to be resolved as (1) whether the Agency violated the parties' local agreement by not negotiating with the Union, and (2) whether the Agency discriminated against the grievant in violation of the parties' national agreement by reassigning him to the East Area.

As to the first issue, the Arbitrator found that the parties' local agreement required that a periodic review be conducted to determine whether workloads are as equitable as possible and that the method of conducting such reviews will be determined after conferring with the Union. The Arbitrator found that since the proposed realignment was never implemented, no review took place and the Agency had no duty to negotiate workloads. He found further that the Agency had no duty to negotiate regarding the method of conducting reviews. The Arbitrator thus found that the Agency had not violated the parties' local agreement in this respect.

As to the second issue, the Arbitrator concluded that there was insufficient evidence to conclude that the Agency's action in switching the areas was discriminatory. The Arbitrator found that the grievant had established a prima facie case of disparate treatment, but that the Agency met its burden of showing that its decision was made for legitimate management reasons--to establish a back-up in each area--and was neither pretextual nor discriminatory. Accordingly, the Arbitrator found that the change in assignments resulting in the shift of areas was not discriminatory or in violation of any contractual provision.

III. Discussion

The Union excepts to the Arbitrator's award on the basis that the Agency failed to follow accepted procedures in this arbitration matter. The Union further contends that the Arbitrator's decision is contrary to law because his conclusions are contrary to Authority precedent and the parties' negotiated agreement. 

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or t