32:0079(10)AR - - HHS, SSA and AFGE - - 1988 FLRAdec AR - - v32 p79



[ v32 p79 ]
32:0079(10)AR
The decision of the Authority follows:


32 FLRA No. 10

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Agency

and Case No. 0-AR-1451

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Lawrence Mann, Jr. The Arbitrator found that the Agency: (1) did not violate Article 3 of the National Agreement by granting administrative leave to those employees who were furloughed on October 17, 1986, because of a lapse in the Agency's appropriations and not granting administrative leave to those employees who were on previously approved leave on October 17; (2) did violate the National Agreement by furloughing the employees without giving them 30 days' advance notice; and (3) did not violate the time frames established in the National Agreement for processing grievances.

Exceptions were filed by the Agency to the Arbitrator's second finding under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

For the reasons stated below, we conclude that we are without jurisdiction to review the award to the extent that it applies to individuals who are employees within the meaning of 5 U.S.C. § 7511. To the extent that the award applies to individuals who are not employees within the meaning of 5 U.S.C. § 7511, the Agency has failed to establish that the award is deficient and the exceptions are denied.

II. Background and Arbitrator's Award

The Union represents employees in a consolidated professional and nonprofessional unit at the Agency. The National Agreement covers all employees in the consolidated unit. Union's Post Hearing Brief at 1.

The grievance in this case arose as a result of the Agency's noon dismissal of non-essential employees who were on duty on October 17, 1986, because of a lapse in its appropriations. The employees who were dismissed from work were subsequently granted administrative leave. The employees who were in a previously approved leave status on October 17 were not granted administrative leave.

The issues before the Arbitrator were whether the Agency: (1) violated Article 3 of the National Agreement by granting administrative leave to some employees and not to others; (2) violated the National Agreement by furloughing employees without providing 30 days' advance notice; and (3) violated the time frames established in the National Agreement for processing grievances.

In resolving the first issue, the Arbitrator found that the Agency did not violate the agreement by granting administrative leave to those employees who were furloughed because of the lapse in the Agency's appropriations and not granting it to those employees who were in a previously approved leave status. The Arbitrator reasoned that an agency can enact reasonable non-discriminatory rules in furlough actions necessitated by a lapse in appropriations. He found that the Agency's action was not in violation of the parties' agreement and was not discriminatory against those employees who were in a previously approved leave category because they were not affected by the financial emergency. Award at 6.

In resolving the second issue, the Arbitrator found that the Agency violated the agreement by failing to give the affected employees 30 days' advance notice of the furlough. The Arbitrator reasoned that the Agency was aware 30 days prior to the lapse in its appropriations that a furlough might be necessary if Congress failed to enact a continuing resolution to fund Federal agencies. Therefore, the Agency should have notified its employees of the possibility of a furlough; if the furlough proved unnecessary, it could notify its employees the furlough was cancelled. Award at 7.

In resolving the third issue, the Arbitrator found that the Agency did not fail to follow the time frames for processing grievances established in the parties' National Agreement. Award at 7.

III. Positions of the Parties

A. Agency's Exceptions

The Agency excepts only to the Arbitrator's resolution of the second issue. The Agency contends that the Arbitrator's award is contrary to Government-wide regulation, 5 C.F.R. § 752.404(d)(2), and the Antideficiency Act,

31 U.S.C. § 1341.(*)

In support of its contention that the award is contrary to Government-wide regulation, the Agency argues that 5 C.F.R. § 752.404(d)(2) specifically waives any notice requirement for a furlough necessitated by a lapse in appropriations. Exceptions at 4. The Agency further argues that the U.S. Court of Appeals for the Federal Circuit interpreted the notice waiver provision of 5 C.F.R. § 752.404(d)(2) as being applicable to budgetary emergencies such as lapsed appropriations stating, ". . . an agency need not presume 30 days in advance that Congress will not fund the agency's work in a timely manner." Exceptions at 4, citing Horner v. Andrzjewski, 811 F.2d 571 (Fed. Cir. 1987). The Agency argues that the award incorrectly presumes that it will have sufficient notice of a potential lapse in appropriations to provide 30 days' advance notice to its employees. The Agency asserts that the notice waiver provision of 5 C.F.R. § 752.404(d)(2) is intended to apply to this situation and relieves it from the obligation to provide 30 days' notice.

The Agency argues that even if 5 C.F.R. § 752.404(d)(2) does not apply to the parties' agreement, the award is contrary to the Antideficiency Act because it would preclude the Agency from suspending its operations until 30 days' notice was given to its employees, thereby creating an obligation of funds in the absence of Congressional authorization for the expenditure. Exceptions at 6.

B. Union's Opposition

The Union contends that the Agency is merely disagreeing with the Arbitrator's interpretation and application of the parties' agreement and is attempting to relitigate the merits of the dispute before the Authority.

IV. Analysis and Conclusion

The Arbitrator's award applies to all employees covered by the parties' National Agreement. The National Agreement covers all employees in a consolidated professional and nonprofessional unit. This consolidated unit potentially encompasses competitive service employees within the meaning of 5 U.S.C. § 7511, as well as excepted service employees. Although not raised by the parties, we conclude that we do not have jurisdiction to resolve exceptions to the award to the extent that the award applies to competitive service employees within the meaning of 5 U.S.C. § 7511. However, we do have jurisdiction to resolve exceptions to the award to the extent that it applies to excepted service employees who are not employees within the meaning of 5 U.S.C. § 7511. See U.S. Soldiers' and Airmens' Home and American Federation of Government Employees, Local 3090, AFL-CIO, 11 FLRA 692 (1983) at note (an arbitrator's award pertaining to a serious adverse action taken against an employee in the excepted service who is not preference eligible does not relate to any of the matters described in section 7121(f) and therefore exceptions to the award were properly before the Authority for review).

A. Employees within the meaning of 5 U.S.C. § 7511

We lack jurisdiction to review the award to the extent that it applies to individuals who are employees within the meaning of 5 U.S.C. § 7511. The Arbitrator's finding that the Agency violated the National Agreement by furloughing its employees without providing 30 days' advance notice is an award relating to a matter described in 5 U.S.C. § 7121(f) and is, therefore, outside our jurisdiction under section 7122(a) of the Statute.

Section 7122(a) of the Statute provides:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) of the Statute include adverse actions under section 7512, such as a furlough for 30 days or less. An employee is defined for purposes of section 7512 as:

(A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and

(B) a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions.

5 U.S.C. § 7511.

It is not disputed that the Agency's noon dismissal of employees due to the lapse in its appropriations was a furlough for 30 days or less. Award at 3, 5. As noted, for employees within the meaning of section 7511, a furlough for 30 days or less is an adverse action set forth in section 7512. By finding that the Agency violated the National Agreement by furloughing employees without providing 30 days advance notice, the award relates to a matter described in section 7121(f). Therefore, to the extent that the award applies to those individuals who are employees of the Agency within the meaning of section 7511, review of the Arbitrator's award must be obtained by appeal to the U.S. Court of Appeals for the Federal Circuit.

The Arbitrator's award relates to a matter covered by section 7512. Therefore, under section 7122(a) of the Statute, exceptions to the award as it applies to individuals who are employees within the meaning of section 7511 may not be filed with the Authority and must be dismissed.

B. Employees not within the meaning of 5 U.S.C. § 7511

We conclude that we have jurisdiction to resolve the Agency's exceptions to the award to the extent that the award applies to individuals who are not employees within the meaning of 5 U.S.C. § 7511. The matters described in section 7121(f) of the Statute include matters similar to those covered under 5 U.S.C. § 7512, such as a furlough for 30 days or less, which arise under other personnel systems. We conclude that excepted service employees who are not employees within the meaning of section 7511 are not covered by another personnel system within the meaning of 7121(f), but rather are part of the general Federal civil service.

The legislative history of the Statute provides one specific example of "[an]other personnel system." In explaining the meaning of the term "other personnel system" in section 7121(e), the Senate Governmental Affairs Committee used as an example the personnel system established by 38 U.S.C. §§ 4104-4119 for Department of Medicine and Surgery (DM&S) professional employees of the Veterans Administration (VA). S. Rep. No. 969, 95th Cong., 2d Sess. 110 (1978). See also Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984). In VAMC, Northport, the Court gave examples of the specific personnel system established by Congress for DM&S employees. These include: (1) qualifications for DM&S professionals are determined by the VA "without regard to civil service requirements," citing 38 U.S.C. §§ 4105(a), 4106(a); (2) DM&S employees have a different probationary period than other civil service employees, citing 38 U.S.C. § 4106(b); (3) DM&S employees' hours, conditions of employment and leaves of absence are determined by the Administrator of the VA "notwithstanding any law, Executive order or regulation," citing 38 U.S.C. § 4108(a); (4) DM&S employees are paid according to special grades and scales, citing 38 U.S.C. § 4107; and (5) DM&S employees charged with "inaptitude, inefficiency or misconduct" are judged by peer review boards whose decision is final, citing 38 U.S.C § 4110. 732 F.2d 1130 n.4, 1131.

The Authority has found that the Defense Department Overseas Teachers Pay and Personnel Practices Act (the Act), 20 U.S.C. §§ 901-907, constitutes a "personnel system" within the meaning of section 7121(f), for teachers in schools operated by the Department of Defense in an overseas area for dependents of members of the Armed Forces and dependents of civilian employees of the Department of Defense. Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597, 599 (1986). The Authority reached its conclusion that the Act established another personnel system because the purpose of the Act was "to longer generally subject such teachers to civil service laws and regulations as the source of their personnel system and instead to have the Secretary of Defense prescribe and issue regulations to provide for a system of personnel administration." 22 FLRA at 600. The Authority noted that under 20 U.S.C. § 902(a), the regulations to be promulgated by the Secretary of Defense shall govern: (1) the establishment of teaching positions; (2) the fixing of basic compensation for teachers and teaching positions; (3) the entitlement of teachers to compensation; (4) the payment of compensation to teachers; (5) the appointment of teachers; (6) the conditions of employment of teachers; (7) the length of the school year; (8) the leave system for teachers; (9) quarters, allowances, and additional compensation for teachers; (10) such other matters as may be relevant and appropriate to the purposes of Chapter 20. 22 FLRA at 600.

In this case, there is no indication in the Statute or the legislative history that Congress intended the personnel provisions applicable to the excepted service to be "[an]other personnel system" or to distinguish it from the general Federal civil service. Rather, excepted service employees are a category of Federal civil service employees. The excepted service consists of those civil service positions which are not in the competitive service or the Senior Executive Service. 5 U.S.C. § 2105. See also United States v. Fausto, 108 S.Ct. 668, 679 (1988). Title 5 of the United States Code covers: (1) the hours of work, workweek and work schedules, 5 U.S.C. § 6101(a)(1), (b)(1); (2) the classification of positions and the rates of pay, 5 U.S.C. §§ 5331(b), 5332(a); and (3) the leave system, 5 U.S.C. § 6301(2)(A), for all Federal employees, other than those employees who are specifically excluded by Title 5. Congress did not specifically exclude excepted service employees from the coverage of any of these provisions of Title 5. See 5 U.S.C § 5541(2), 6101(b)(1); 5 U.S.C. §§ 5101, 5102; 5 U.S.C §§ 2105(a), 6301(2). Further, Congress specifically provided that selection for appointment to an excepted service position is to be in the same manner and under the same conditions as are required for appointment to the competitive service. 5 U.S.C. § 3320. Moreover, one class of excepted service employees, preference eligible employees, is treated as if they were in the competitive service. See 5 U.S.C. § 7511(a)(1)(B).

Accordingly, we find that excepted service employees are not covered by "[an]other personnel system" within the meaning of section 7121(f), but rather are a category of employee within the general Federal civil service. Therefore, we have jurisdiction to review exceptions to the Arbitrator's award to the extent that it applies to excepted service employees who are not employees within the meaning of section 7511.

In reviewing the exceptions to the award, we conclude that the Agency had failed to establish that the award is deficient.

The issue before the Arbitrator was whether the Agency violated Article 23, section 6, of the National Agreement, among other provisions, by furloughing employees without providing 30 days' advance notice. The Arbitrator found that under the parties' agreement, an obligation to provide 30 days' advance notice of a furlough existed. The Agency argues that the Arbitrator's interpretation of the agreement is contrary to 5 C.F.R. § 752.404(d)(2) because the notice waiver provision of that regulation, as interpreted by the Federal Circuit in Horner v. Andrzjewski, is intended to apply to furloughs resulting from a lapse in appropriations.

We conclude that the Agency's reliance on Horner v. Andrzjewski is misplaced. The issue before the court in that case was whether 5 C.F.R. § 752.404(d)(2) was a valid regulation. 811 F.2d at 574. The court found that the regulation was valid. Id. at 576. However, the court did not decide whether the emergency furlough regulation was properly invoked in a furlough resulting from a lapse in appropriations. The court remanded that issue to the Merit Systems Protection Board for resolution. Id. at 577. Thus, the Court of Appeals for the Federal Circuit did not decide whether the notice waiver provision set forth in 5 C.F.R. § 752.404(d)(2) applies to furloughs resulting from a lapse in appropriations.

Moreover, the Agency argues that the award is contrary to 5 C.F.R. § 752.404(d)(2). The Agency argues that Article 1, section 1 of the parties' agreement requires that the agreement provisions must be "consistent with existing or future laws, and Government-wide rules and regulations in existence at the time the Agreement was negotiated." Exceptions at 3. The Agency argues that because 5 C.F.R. § 753.404(d)(2) was in existence at the time the agreement was negotiated, the agreement must conform to its terms. Therefore, by finding that the agreement required the Agency to give its employees 30 days' advance notice of a furlough resulting from a lapse in appropriations, the Arbitrator interpreted the agreement in such a way as to render it inconsistent with the regulation.

It is clear that the essence of the Agency's exception is that the Arbitrator incorrectly and erroneously applied and interpreted the provisions of the agreement. In the award, the Arbitrator resolved precisely the issue presented to him by the parties, whether the Agency violated the National Agreement by furloughing employees without providing 30 days' advance notice. The Arbitrator found that the Agency had violated Article 23, section 6, as well as other provisions, by failing to give 30 days' advance notice of the furlough. The award does not direct the Agency to provide notice to its employees under the Code of Federal Regulations, but rather requires notice under the specific terms of the parties' negotiated agreement. Thus, the Arbitrator's resolution of the dispute directly resulted from his interpretation of the parties' agreement.

We note that 5 C.F.R. § 752.404(d)(2) does not preclude the Agency from giving 30 days' notice of a furlough resulting from a lapse in appropriations. In light of the Arbitrator's express findings that the Agency "is aware 30 days prior to the financial lapse that that situation might occur" and that "[t]here is no reason why the Agency, at that time, should not communicate to the employees the possibility of the furlough action," Award at 7, there is no basis to conclude that the award violates 5 C.F.R. § 752.404(d)(2).

The Agency's arguments constitute an attempt by the Agency to have its own interpretation of the agreement substituted for that of the Arbitrator and consequently, the exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement provision before him. It is well established that asserted errors in the construction and application of the collective bargaining agreement by the Arbitrator do not provide a basis for finding an award deficient under the Statute. For example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 30 FLRA 482 (1987); Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983); Federal Aviation Science and Technological Association and Federal Aviation Administration, Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 680, 681-82 (1980).

Merely because the Agency or even the Authority may have interpreted the agreement differently does not provide a basis for finding the award deficient. The question of the interpretation of the collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained. For example, U.S.