32:1288(176)AR - - SSA and AFGE Local 1923 - - 1988 FLRAdec AR - - v32 p1288

[ v32 p1288 ]
The decision of the Authority follows:

32 FLRA No. 176












Case No. 0-AR-1523


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Ellen M. Bussey. The Arbitrator found that the Agency had not violated the parties' collective bargaining agreement which provides that non-bargaining unit employees will not be scheduled for overtime for the sole purpose of eliminating the need to schedule bargaining unit employees for overtime. Award at 9. Accordingly, the Arbitrator denied the Union's grievance.

The Union filed exceptions 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 Agency did not file an opposition.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' negotiated agreement. Consequently, we deny the Union's exceptions.

II. Background and Arbitrator's Award

In 1982, the Social Security Administration (SSA) decided to institute a system of compulsory overtime in the Automated Data Processing Operation (ADP) section of the National Computer Center (Center) to ensure that the Center would be staffed 24 hours a day on weekends and holidays. The Union objected and contended that the change posed a hardship for some of its bargaining unit members. The Union requested bargaining. The bargaining resulted in a Memorandum of Understanding of July 1983, (MOU) in which the parties "agreed that the Agency would use contractor support personnel in the ADP but 'would continue to offer available overtime to qualified SSA employees who volunteer.'" Award at 3.

Prior to January 17, 1987, overtime was available to bargaining unit employees in the Computer Systems Operations Branch (CSOB) on an almost unlimited basis. In January 1987, the overtime hours allocated to CSOB were reduced by one-third. The Union filed a grievance on behalf of 17 individuals and 3 groups alleging that between January 17, 1987, and July 18, 1987, the Agency violated Article 10, Section 2(F) of the Agreement and the MOU by using outside contractors instead of bargaining unit members for overtime.

The Agency argued before the Arbitrator that because of the reduction in the number of overtime hours allotted to CSOB, the opportunities for overtime declined. Consequently, at times employees were turned down for the number of hours and/or the times they wished to work. Further, the Agency claimed that bargaining unit employees testified at the hearing that they stopped applying for overtime when they found overtime to be less flexible and they were turned down for overtime assignments. Award at 4.

The Union contended that in the period at issue--January 17, 1987 to July 18, 1987--bargaining unit employees were improperly denied the opportunity to work overtime. Further, the Union contended that the MOU required the Agency to offer available overtime to bargaining unit employees and that available overtime means any overtime contained in the total SSA budget. Therefore, the Union concluded that the overtime eliminated from CSOB but which was still available agency-wide within the SSA was available overtime for CSOB bargaining unit employees.

The Arbitrator found that there was no dispute that the MOU "requires that the Agency will offer available overtime to qualified SSA employees who volunteer, and will utilize contractors as support personnel only when suitable SSA employees are not available." Award at 7. Further, she found that there "is no disagreement that Fiscal 1987 budget cuts for the Office of Computer Processing Operations curtailed overtime for the 24-hour Automated Data Processing Operation from January to July 1987." Id. The Arbitrator concluded that the "dispute centers on whether a cut in the overtime budget of OCPO means that its bargaining members no longer had access to the overtime which had been cut and on whether Management violated Article 10(2)(F) of the Agreement by using contractors in order to avoid the scheduling of bargaining unit employees for overtime between January and July 1987." Award at 7, 8.

The Arbitrator rejected the Union's argument that the available overtime clause of the MOU referred to agency-wide overtime. The Arbitrator found that "[a]side from the obvious conflicts inherent in this type of overtime management, the confusion resulting from a random, agency-wide, signing up of employees for greatly varied, and often highly skilled, overtime tasks, would be too profound and time-consuming to be serviceable." Award at 8. The Arbitrator noted that "Contract Article 10, Section 3(B) is responsive to these potential problems by requiring that overtime time rosters be maintained and applied in headquarters at the division level." Id. Further, she found that the "history of instant dispute shows that from its beginning in 1982 to the filing of the grievance on March 12, 1987, its focus never went beyond the computer processing operation." Award at 8.

The Arbitrator found that the "Union was unable to show that Management put contractors in overtime jobs for which bargaining unit members with the proper skills had previously volunteered." Award at 9. Further, the Arbitrator found that the "Union was unable to provide evidence that bargaining unit employees who had met the skill and timing requirements for overtime work between January 17 and July 18, 1987 had been refused overtime because contract personnel [were] arbitrarily substituted." Award at 9. Consequently, the Arbitrator found that there was no evidence that the Agency violated Article 10, Section 2(F) of the parties' collective bargaining agreement and, therefore, she denied the grievance.

III. Exceptions

The Union contends that the Arbitrator failed to properly consider and decide the issue before her and "otherwise failed to follow the proper rules governing the scope of authority of arbitrators as contained in 5 USC 7122 and Section 2425 of the rules and regulations." Exceptions at 1.

The Union asserts that the Arbitrator's decision is based on a nonfact and a misunderstanding of how overtime works. The Union claims that "[t]he grievance that was filed alleged that the Employer had utilized this contractor in lieu of bargaining unit employees." Exceptions at 5. The Union alleges that in the MOU the Agency agreed to the following procedure to assign overtime: (1) advise unit employees when overtime is available and then query them to find out who wishes to work; (2) compile a list of unit employees who volunteered to work overtime; and, (3) if they have enough unit employees, to not utilize contract employees. Id. The Union argues that this procedure was used until early 1987 when the Agency stopped asking SSA employees to see who wished to work overtime and, instead, began to use only contract employees to work overtime.

The Union also contends that the Arbitrator "seems to be denying the grievance because she reasoned that SSA employees did not make themselves available to work overtime." Exceptions at 6. The Union claims that the contract and MOU violation that was grieved was "that the Employer did not solicit SSA employees to work overtime; therefore, because they were not solicited, obviously the qualified SSA employees were unable to make known their availability to work the overtime." Id. Consequently, the Union contends that even qualified SSA employees cannot work overtime unless management first properly solicits and then permits them to work overtime.

IV. Analysis and Conclusion

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 that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases.

The Union asserts that the Arbitrator failed to properly consider and decide the issue before her. The Union also claims that the Arbitrator's reliance on a nonfact and her misunderstanding of how overtime works resulted in her incorrectly finding that the Agency did not violate the parties' collective bargaining agreement by using contract employees in lieu of bargaining unit employees to perform overtime work.

We find that the Union's contentions constitute nothing more than disagreement with the Arbitrator's findings and conclusions that the Agency did not violate the parties' collective bargaining agreement. The Union's contentions are an attempt to relitigate the merits of the grievance. These contentions provide no basis for finding an award deficient. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 31 FLRA 1181 (1988) (exceptions which merely attempt to relitigate the merits of the case before the Authority and which constitute nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement provide no basis for finding an award deficient); Okl