33:0343(43)AR - - HHS, SSA and AFGE Local 3239 - - 1988 FLRAdec AR - - v33 p343



[ v33 p343 ]
33:0343(43)AR
The decision of the Authority follows:


33 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL UNION 3239

0-AR-1543

DECISION

October 26, l988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Dawson J. Lewis. The grievant filed two grievances protesting the denial of his requests for excused absences. The Arbitrator found that the denials of excused absence were consistent with the terms of the parties' negotiated agreement. Therefore, the Arbitrator denied the grievances.

The American Federation of Government Employees, AFL-CIO, Local 3239 (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 Department of Health and Human Services, Social Security Administration (the Agency) did not file an opposition.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was tardy on two occasions in June and July 1987. He requested that the lost time be considered as excused absences. Article 31, Section 3 of the parties negotiated agreement states that "[i]nfrequent tardiness of less than one hour shall normally be excused if the reasons are acceptable." Arbitrator's award at 7. The Agency's Highland Park District, where the grievant is employed, adopted guidelines in 1984 under which employees who were tardy more than three times in a given leave year would be considered "frequently" tardy and the employees would not be granted excused absences once they had been tardy more than three times. The grievant already had been tardy on three previous occasions during the leave year when the tardinesses which are the subject of the grievance occurred. Therefore, the Activity rejected the grievant's requests for excused absences. The grievant filed grievances challenging the denials of excused absence. The grievances were submitted to arbitration on the issue of whether the Activity violated Article 31, Section 3 of the parties' agreement when it denied the grievant's requests for excused absences.

The Arbitrator found that, although the Activity had adopted its guidelines concerning tardiness in 1984, the Union had not sought negotiations regarding the guidelines at that time or at any time prior to the grievances in this case. The Arbitrator further found that the adoption of the guidelines was consistent with the Activity's rights under section 7106 of the Statute, which were incorporated into the parties' agreement. Accordingly, the Arbitrator concluded that the Activity had not violated the parties' agreement when the Activity denied the grievant's requests for excused absences. Therefore, the Arbitrator denied the grievances.

III. Exceptions

The Union contends that the award is deficient for the following reasons:

(1) The Activity's guidelines regarding tardiness exist only in oral form and they cover only the local Activity, although the wording in Article 31, Section 3 is part of a national agreement. Therefore, the Union argues, the Arbitrator incorrectly concluded that the guidelines were a rule or regulation within the meaning of section 7117 of the Statute.

(2) The issue involved in the grievances is not whether management met its obligation to bargain, as ruled on by the Arbitrator. The Union argues that the issue involves the proper interpretation of Article 31, Section 3.

(3) The Arbitrator incorrectly found that the Activity had the right to impose it guidelines because the matter involved management's right to "direct" employees pursuant to section 7106(b)(1) of the Statute. The Union argues that any change in the guidelines involves negotiable "procedures" pursuant to section 7106(b)(2) of the Statute.

(4) The Arbitrator exceeded his authority by interpreting the Statute rather than fulfilling his assigned task of determining whether the Activity violated Article 31, Section 3 of the parties' agreement.

IV. Discussion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases.

The Union's exceptions constitute nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's rationale, interpretation of the collective bargaining agreement, and conclusion. The exceptions provide no basis for finding the arbitration award deficient. See, for example, Oklahoma City Air Log