33:0743(87)AR - - SSA and AFGE, National Council of SSA Field Operations Locals Council 220 - - 1988 FLRAdec AR - - v33 p743



[ v33 p743 ]
33:0743(87)AR
The decision of the Authority follows:


33 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

and

NATIONAL COUNCIL OF SOCIAL SECURITY

ADMINISTRATION FIELD OPERATIONS LOCALS

COUNCIL 220, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

0-AR-1551

DECISION

October 31, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Ira F. Jaffe filed by the National Council of Social Security Administration Field Operations Locals, Council 220, American Federation of Government Employees, AFL-CIO (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. The Social Security Administration (the Agency) filed an opposition. Gayla Reiter-Scott and the National Treasury Employees Union (NTEU) filed amicus curiae briefs. The Agency filed oppositions to the amicus briefs.

On November 6, 1987, the Authority issued a decision addressing the exceptions in American Federation of Government Employees and Social Security Administration, 29 FLRA 1568 (1987) (Member McKee dissenting), request for reconsideration denied, 30 FLRA 371 (1987). One of the exceptions in that case concerned a cease and desist order issued by Arbitrator Justin C. Smith which, among other things, prohibited the Agency from selecting any other arbitrator to resolve grievances related to the parties' dispute over official time involved in American Arbitration Association (AAA) Case No. 74-30-0228-82. The Authority set aside this cease and desist order and directed the parties to bilaterally resolve the matter of Arbitrator Smith's continuing jurisdiction, and if they were unable to do so, to select another neutral arbitrator to resolve it.

Bilateral efforts failed and the parties selected Arbitrator Jaffe to resolve the dispute. In April 1988, Arbitrator Jaffe issued his award, to which the Union filed exceptions.

For the reasons stated below, we deny the exceptions.

II. Background

This case is part of a protracted dispute over the interpretation and application of the parties' collective bargaining agreement, particularly as it concerns official time for employees' representational activities and related issues. The dispute was initially submitted to Arbitrator Smith. 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. The second phase concerned the application of this interpretation to specific grievances.

More specifically, on February 22, 1984, Arbitrator Smith issued an "Interim Award" which contained his rulings on 31 general issues presented to him by the parties in AAA Case No. 74-30-0228-82. The award concerned the official time provisions of the parties' contract. On April 5, 1985, Arbitrator Smith issued his "Final Award," which incorporated the Interim Award and "set forth a mechanism, providing for submission of claims by means of affidavits whenever possible, and for arbitral bench decisions 'where practicable' . . . ." Jaffe's Award at 23.

In order to implement Arbitrator Smith's Final Award, the parties entered into two agreements--Memoranda of Understanding (MOUs) I and II--which set forth procedures for processing individual claims related to the dispute. MOU I encompassed claims filed between June 11, 1982 and June 1984, while MOU II encompassed claims filed between June 12, 1984 and September 10, 1985. Jaffe's Award at 15-16 and 24-25.

Arbitrator Smith held hearings to resolve specific grievances pending in the various regions of the Agency. After resolving a number of issues by bench decisions, Arbitrator Smith held hearings during March 1987 at the Union's request to address whether the Agency had in fact complied with certain of his bench awards. In these bench awards, Arbitrator Smith found that the official time provisions of the parties' contract obligated the Agency to: (1) grant certain official time requests; (2) provide access to photocopying, facilities and the like; and (3) refrain from improperly disciplining certain Union representatives.

On March 30, 1987, Arbitrator Smith: (1) reaffirmed his earlier awards; (2) ruled that the Agency had failed to comply with certain of his earlier awards; and (3) through the issuance of three cease and desist orders, ordered the Agency to cease and desist from its noncompliance. As relevant here, Arbitrator Smith made the following findings and entered the following order:

(1) S.S.A. and A.F.G.E.'s agreement to arbitrate all official time issues via A.A.A. case 74-30-0228-82 requires this arbitrator to resolve all official time disputes covered by the 31 broad issues of the original grievance which arise during the term of the parties' collective bargaining agreement.

(2) All grievances and/or disputes (including disciplinary actions taken as a result of official time disputes) arising concerning application of the aforementioned official time provisions and which are not resolved during the grievance procedure, must be referred to this arbitrator for resolution under A.A.A. 74-30-0228-82.

Whereupon the following order is entered:

It is hereby ordered that the Social Security Administration cease and desist from selecting arbitrators to: (a) resolve contractual official time language, and (b) resolve any individual grievances or disputes involving official time which have been placed before this arbitrator in A.A.A. case 74-30-0228-82. All questions regarding application of official time contractual language which has been interpreted by this Arbitrator must be heard by this Arbitrator.

Jaffe's Award at 1-2.

The Agency filed exceptions to the cease and desist orders rendered by Arbitrator Smith, including the order described above. The Authority issued a decision addressing these exceptions in American Federation of Government Employees and Social Security Administration, 29 FLRA 1568 (1987) (Member McKee dissenting), request for reconsideration denied, 30 FLRA 371 (1987). In that decision, the Authority set aside the order described above.

The Authority noted that Smith's order was "intended to not only preclude the Agency from filing and pursuing grievances over official time, [but also was] intended to require (1) all (1)disciplinary matters relating to the official time dispute . . . and (2) all 'questions' regarding official time language to be heard by the Arbitrator." 29 FLRA at 1579. The Authority cited Pitta v. Hotel Association of New York City, 806 F.2d 419 (2d Cir. 1986), and found that the nature of the dispute over the order concerned Arbitrator Smith's own employment for the duration of the parties' contract. Therefore, the Authority concluded that the order must be set aside.

The Authority directed the parties to expend all available efforts to bilaterally resolve the dispute concerning the nature and extent of Arbitrator Smith's continuing jurisdiction. The Authority stated that:

[a]t a minimum, the parties should attempt agreement on the processing of this and related cases. It is our hope that these discussions would resolve not only the issue of how these cases are to be processed, but also the underlying issue of how official time matters may be resolved without resort to arbitration.

29 FLRA at 1580. In the event that the parties were unable or unwilling to reach agreement on those matters, the Authority directed them to submit the dispute concerning the nature and extent of Arbitrator Smith's continuing authority to another neutral arbitrator. Id.

Bilateral efforts failed and the parties filed a request for arbitration with the AAA. Arbitrator Jaffe was selected by the parties and a hearing was held January 21, 1988. The parties submitted post-hearing briefs and Arbitrator Jaffe issued his award dated April 7, 1988. Thereafter, the Union filed exceptions to the award.

III. Arbitrator Jaffe's Award

The parties' statements of the issue before Arbitrator Jaffe differed. The parties subsequently agreed to permit Arbitrator Jaffe to determine the issue. Arbitrator Jaffe concluded that the issue presented was the "question of the nature and extent of Arbitrator Smith's jurisdiction in AAA Case No. 74-30-0228-82." Jaffe's Award at 73. The Arbitrator stated further that the issue "does not include the question of what weight, if any, Arbitrator Smith's prior awards are to be given by the parties or in proceedings before the Authority or other arbitrators." Jaffe's Award at 79-80.

The Arbitrator found that the evidence presented to him demonstrated that:

[1] the Parties initially requested . . . Arbitrator Smith {to} decide 31 pre-phrased issues related to official time under [their] Agreement and that both Parties agreed that those rulings would be issued after the presentation of evidence as to the bargaining history surrounding the adoption of the official time language of [their] Agreement[;]

[2] the sole remaining task which the Parties delegated jointly to Arbitrator Smith following the issuance of [his Interim award of February 22, 1984 on the 31 issues] was to apply his rulings on those 31 issues to the more than 1,000 individual pay claims then pending[;]

[3] in {their} MOU I, the Parties agreed to a procedure to reduce the number of those claims and to define those claims which properly were to be submitted to Arbitrator Smith for that determination[; and]

[4] [i]n {their} MOU II, the Parties, after requesting and receiving Arbitrator Smith's "Final Award" on the general contract interpretation questions, agreed to expand the claims submitted to Arbitrator Smith to encompass those claims which arose between the end of the first claims period and the date of the Final Award--April 5, 1985.

Jaffe's Award at 74-75.

Arbitrator Jaffe determined that at no time either before the Interim and Final Awards or thereafter did the parties agree to submit any other matter to Arbitrator Smith for decision as part of AAA Case No. 74-30-0228-82. He concluded, therefore, that Arbitrator Smith's issuance of his Final Award on the 31 official time issues, in the context of the bifurcated process agreed to by the parties, ended Smith's jurisdiction over the dispute as to the proper interpretation to be accorded the general contract language. Arbitrator Jaffe found that the doctrine of functus officio precluded Smith's reconsideration and modification of his prior rulings.

Arbitrator Jaffe found that Arbitrator Smith acted improperly in: (1) retaining jurisdiction for the enforcement of his award; and (2) "seiz{ing} jurisdiction over a category of cases which were not . . . of the type encompassed in his initial grievance[,]" for example, disputes concerning disciplinary actions, provision of photocopying access, and the like. Jaffe's Award at 78. Moreover, Arbitrator Jaffe stated that even assuming that Arbitrator Smith had had the authority to decide these broader issues initially, that authority was mutually rescinded by the parties' entry into the MOUs. Id. at 79. Having concluded that Arbitrator Smith's jurisdiction ended after the issuance of the April 5, 1985 Final Award, Arbitrator Jaffe found that the challenged cease and desist order of March 30, 1987 was "improperly issued and must be vacated." Id.

Arbitrator Jaffe also noted that Arbitrator Smith "would appear to have continuing jurisdiction solely with respect to the application of the holdings of the April 5, 1985 Award to individual claims, if any, properly processed through the MOU I and MOU II processes . . . which {had} not been paid in full by the Agency." Jaffe's Award at 80. With respect to these claims, Arbitrator Jaffe noted without deciding that the "record in this case raise{d} serious questions about Arbitrator Smith's ability to continue to serve in a neutral or impartial capacity in connection with [the] dispute." Jaffe's Award at 81.

Arbitrator Jaffe issued the following award:

[1] The jurisdiction of the Arbitrator in AAA Case No. 74-30-0228-82 is limited to the application of the rulings encompassed in the April 5, 1985 "Final Award" of Arbitrator Smith (which incorporated the rulings contained in Arbitrator Smith's "Interim Award" of February 22, 1984 in the same matter) to those claims (if any) which were properly processed through the procedures outlined in the Parties' May, 1984 and July, 1985 Memoranda of Understandings, but which have not been paid in full by the Agency.

[2] Any changes to the April 5, 1985 Final Award by Arbitrator Smith were in excess of the authority delegated to him in this case.

[3] Arbitrator Smith's purported retention of jurisdiction in the April 5, 1985 Award and in the subsequently issued bench awards for the purpose of the "enforcement" of his Award is invalid and unenforceable as contrary to the authority granted him by the Parties and as contrary to the properly recognized role of arbitrators with respect to the process of enforcement of arbitral Awards.

Jaffe's Award at 82.

IV. Positions of the Parties

A. The Union(*)

The Union contends that Arbitrator Jaffe exceeded the authority granted to him in Social Security Administration, 29 FLRA 1568 by ruling on matters which were resolved in earlier Authority decisions. It contends that rather than limiting his decision to the cease and desist order which was the subject of Exception 2 in 29 FLRA 1568, Arbitrator Jaffe improperly expanded the issue to encompass the nature and extent of Smith's jurisdiction from the inception of Smith's involvement in the case. The Union contends that Jaffe's action effectively vacated numerous Authority decisions on awards which had become final and binding under section 7122 of the Statute. According to the Union, Arbitrator Jaffe ignored the relationship between final and binding Authority determinations made pursuant to section 7122 of the Statute and subsequent arbitral decisions. The Union further claims that under the principles of res judicata and collateral estoppel, Arbitrator Jaffe was obligated to follow prior Authority decisions.

The Union further claims that the Authority should not defer to Arbitrator Jaffe's framing of the issue since the Authority--rather than the parties' contract--was the source of Jaffe's mandate. The Union also asserts that Arbitrator Smith had authority to issue awards dealing with peripheral issues relating to the conduct of the hearing (such as issues relating to photocopying, facilities, and disciplinary action involving certain Union representatives), and that Arbitrator Jaffe's finding that Smith lacked jurisdiction is contrary to Authority decisions which addressed these matters. Finally, the Union asserts that Jaffe's finding that Arbitrator Smith was motivated by self-interest is improper because the Agency failed to introduce any evidence on this point, and that Arbitrator Jaffe's award, if upheld, would irreparably damage Federal labor relations policy.

B. The Agency

The Agency claims that the Union's exceptions, as well as the arguments of amici, fail to establish that Arbitrator Jaffe's award is deficient under section 7122 of the Statute. The Agency also asserts that amicus NTEU's brief is both improper and untimely under section 2429.17 of the Authority's Regulations because NTEU was not a party to the case and its brief was not timely filed. The Agency also requests that certain documents attached to amicus Reiter-Scott's brief not be considered because the documents were not a part of the record before Arbitrator Jaffe.

The Agency claims that Arbitrator Jaffe did not exceed his authority. It states that because the parties were unable to agree on the issue, Arbitrator Jaffe determined the issue to be the nature and extent of Arbitrator Smith's jurisdiction as specified in Social Security Administration. The Agency asserts that Arbitrator Jaffe's framing of the issue is consistent with the Authority's statement in Social Security Administration that Arbitrator Jaffe's task was to "determine the nature and extent of Arbitrator [Smith's] authority." Agency's Opposition to Union's Exceptions at 10-11. The Agency claims that the Union's exceptions constitute mere disagreement with the formulation of the issue by Arbitrator Jaffe.

Further, the Agency claims that the Authority's action in remanding a number of awards involved in Social Security Administration and American Federation of Government Employees, Council 220, AFL-CIO, 30 FLRA 1003 (1988); and American Federation of Government Employees and Social Security Administration, 30 FLRA 389 (1987), supports its position that the Authority intended Arbitrator Jaffe to consider the scope of Arbitrator Smith's jurisdiction. The Agency also claims that the Union's and amicus NTEU's contentions concerning the principles of res judicata and collateral estoppel constitute nothing but disagreement with Arbitrator Jaffe's decision. It asserts that these principles of law do not apply in arbitration proceedings.

The Agency also disagrees with the Union's contentions that: (1) Arbitrator Smith had jurisdiction over peripheral issues; (2) Arbitrator Jaffe vacated certain Authority decisions as well as the cease and desist order; (3) the Agency failed to produce any evidence concerning Arbitrator Smith's self-interest in retaining jurisdiction of the case; and (4) Arbitrator Jaffe's award, if upheld, would irreparably damage Federal labor policy.

V. Discussion

A. Procedural Matters

We reject the Agency's claim that amicus NTEU's brief is untimely and improper. Section 2429.9 provides that the Authority, "[u]pon petition of an interested person, . . . may grant permission for the presentation of written and/or oral argument at any stage of the proceedings by an amicus curiae[.]" NTEU requested and was given permission to file its brief under section 2429.9 of our regulations. We find, therefore, that NTEU's brief is properly before us.

Gayla Reiter-Scott also requested and was given permission to file an amicus brief pursuant to section 2429.9. This section, as mentioned, allows an interested person, subject to the Authority's permission, to introduce oral or written argument. Amicus Reiter-Scott's brief contained not only argument but also certain evidence that was not presented before Arbitrator Jaffe. As section 2429.9 permits a party to introduce only oral or written argument, we find that such evidence is not properly before us. Accordingly, we have not considered it.

B. Substantive Matters

1. Whether Arbitrator Jaffe Exceeded the Scope of His Authority

The Union contends that Arbitrator Jaffe exceeded his authority by expanding the issue in this case to encompass matters beyond the scope of the issue which the Authority directed the parties to resolve in Social Security Administration, 29 FLRA 1568. The Union also claims that Arbitrator Jaffe's award has vacated numerous Authority decisions on awards that had become final and binding under section 7122 of the Statute. We disagree with both of the Union's assertions.

An arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue which was not submitted to arbitration. See, for example, U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local No. 3412, 24 FLRA 442 (1986). In the absence of a stipulation, the Authority, like the Federal courts, will accord an arbitrator's formulation of the issue the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. See U.S. Department of Housing and Urban Development, 24 FLRA at 444, citing Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982).

In this case, no basis is provided for finding that Arbitrator Jaffe exceeded his authority by resolving the issue concerning the nature and extent of Arbitrator Smith's authority to hear claims in AAA Case No. 74-30-0228-82. Instead, the Union's exceptions simply dispute Arbitrator Jaffe's formulation of the issue. In Social Security Administration, 29 FLRA 1568, the Authority directed the parties to attempt to settle the issue concerning the nature and extent of Arbitrator Smith's continuing jurisdiction in the parties' dispute, and if that approach failed, to select another arbitrator to resolve it. The parties were unable to settle the matter and submitted the dispute to Arbitrator Jaffe. The parties could not agree on a joint stipulation of the issue and, therefore, agreed to permit the Arbitrator to frame the issue.

The Arbitrator stated that the issue to be decided was limited to the nature and extent of Arbitrator Smith's continuing jurisdiction in AAA Case No. 74-30-0228-82. Arbitrator Jaffe's award is responsive to the issue as he framed it and the issue which the Authority directed the parties to resolve in Social Security Administration. Accordingly, the Union's exceptions provide no basis for finding the award deficient. See, for example, Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986).

Further, the Union has failed to establish that Arbitrator Jaffe's award vacated Authority decisions on awards that had become final and binding under section 7122 of the Statute. Arbitrator Jaffe specifically stated that he had no authority to determine the weight to be given to Arbitrator Smith's prior awards in Authority proceedings or before other arbitrators. See Jaffe's Award at 79-80.

Neither Arbitrator Jaffe's award nor our decision in this case alters the Authority's decision in previous cases. The awards in those cases became final and binding under section 7122 of the Statute. See, for example, U.S. Department of Justice v. FLRA, 792 F.2d 25 (2d Cir. 1986) (where the court held that the denial of exceptions by the Authority in that case made the award final and binding). See also United States Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985). Also, neither Arbitrator Jaffe's award nor our decision here affects any of Arbitrator Smith's May 1986, bench awards. The Agency did not file exceptions to these awards. Jaffe's Award at 33. Therefore, these awards also became final and binding under section 7122 of the Statute. See Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410 (1988); United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), affirmed sub nom. Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985).

The Union and amici contend that Arbitrator Jaffe ignored the principles of res judicata and collateral estoppel with respect to previous Authority cases. We disagree. The principles of res judicata and collateral estoppel are both based on the theory that a prior judgment on a similar issue precludes further litigation of that issue. See generally, Mezines, Stein, Gruff, Administrative Law º 40.01 "Res Judicata and Collateral Estoppel" (1988). In our view, the issue here is fundamentally different from that addressed in previous Authority cases.

The Authority's decisions in its previous cases did not concern the issue presented by the Authority's direction to the parties in Social Security Administration--that is, the term of Arbitrator Smith's employment under the parties' agreement to arbitrate the official time issue in AAA Case No. 74-30-0228-82. The Authority noted that this issue was one of "first impression" and was "fundamentally different . . . from other issues involving an arbitrator's authority to hear and decide cases." Social Security Administration, 29 FLRA 1568, 1579. The issue in this case arose only when the Agency appealed the cease and desist order contained in the Smith award described above at page 3 to the Authority and the Authority set aside that order. The issue presented here has not been addressed by the Authority so as to preclude Arbitrator Jaffe's award under the principles mentioned above.

2. Whether Arbitrator Jaffe Determined that Arbitrator Smith was Motivated by Self-Interest

The Union claims that Arbitrator Jaffe found that Arbitrator Smith's interest in the case was motivated by self-interest. We disagree. Although Arbitrator Jaffe made certain statements concerning his view of Arbitrator Smith's impartiality, he stated that "[g]iven the state of this record (including the lack of any direct input on this question from Arbitrator Smith) and the failure of the Parties or the Authority to have clearly placed this issue before me for decision, I am not persuaded that this issue is ripe for decision in this case[.]" Jaffe's Award at 81.

3. Remaining Claims

The dispute involved in AAA Case No. 74-30-0228-82 is one of "long-standing and evident rancor." Social Security Administration, 29 FLRA 1568, 1580. The parties have been actively litigating matters involved in this case before Arbitrator Smith and the Authority for approximately 6 years without reaching any final resolution. After reviewing Arbitrator Jaffe's award, it is further apparent that Arbitrator Smith's role in this case contributed to the litigious nature of this dispute.

In view of Arbitrator Jaffe's award and the circumstances of this case, and in order to foster more harmonious labor relations, pursuant to sections 7105(a)(2)(I) and 7101(b) of the Statute, we direct the parties to resolve disputes relating to any claims which cannot be resolved bilaterally and have not yet been arbitrated by use of one or more other arbitrators mutually agreed upon by the parties.

VI. Decision

The Union's exceptions are denied.

Consistent with the discussion set forth above, we conclude as follows with respect to related proceedings:

1. Arbitration awards to which no exceptions were timely filed, as well as any awards to which exceptions were resolved by the Authority, are final and binding. The parties are urged to comply fully with final and binding awards. Any allegation that a party has failed to comply with a final and binding award is subject to resolution through the Authority's unfair labor practice procedures.

2. Certain arbitration proceedings have not yet resulted in final and binding awards. Those proceedings include: (1) cases which were remanded by the Authority to the parties pending the outcome of this decision; (2) any cases which may be pending before other arbitrators; and (3) any cases which other arbitrators may have held in abeyance pending resolution of the issue of Arbitrator Smith's jurisdiction. Further processing of arbitration proceedings which have not yet resulted in final and binding awards is to be accomplished in a manner consistent with this decision. That is, other arbitrators in pending cases may not decline jurisdiction on the basis that Arbitrator Smith has exclusive jurisdiction over the matters in dispute. The parties should attempt to resolve cases which were remanded by the Authority to the parties pending the outcome of this decision; if bilateral resolution is not possible, the disputes shall be resolved by use of one or more other arbitrators mutually agreed upon by the parties.

3. Any disputes between the parties which have not yet been referred to arbitration and which cannot be resolved bilaterally shall be resolved by use of one or more other arbitrators mutually agreed upon by the parties.




FOOTNOTES:
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*/ The arguments of the amici are similar to and support those of the Union and except as discussed below, will not be separately set forth or addressed.

Amicus NTEU argues that the Authority improperly delegated its responsibilities to resolve exceptions under section 7105(a)(2)(H) of the Statute to Arbitrator Jaffe. Section 7105(a)(2)(H) of the Statute provides that the Authority shall "resolve exceptions to arbitrator[s'] awards under section 7122" of the Statute. In Social Security Administration, 29 FLRA 1568, the Authority found Arbitrator Smith's award concerning the cease and desist order involved in Exception 2 to be deficient and, therefore, set aside the cease and desist order. Id. at 1579. The Authority further found that section 7122 authorized it to "take such action and make such recommendations concerning the award as it consider[ed] necessary." Id. at 1579. Having set the award aside, the Authority directed the parties to submit the issue concerning the nature and extent of Arbitrator Smith's co