40:0584(54)AR - - AFGE, General Committee and HHS, SSA - - 1991 FLRAdec AR - - v40 p584
[ v40 p584 ]
The decision of the Authority follows:
40 FLRA No. 54
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Henry Schuman filed by the Agency 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.
The Arbitrator sustained a grievance relating to the implementation by the Social Security Administration (SSA), New York Regional Office (Region) of a travel policy established by the U.S. Department of Health and Human Services (HHS). The HHS policy changed the area beyond which employees could be reimbursed for travel from their homes or duty stations from a 30-mile radius to a 50-mile radius. The Arbitrator found that the issuance and implementation of the travel policy covering SSA employees violated the collective bargaining agreement between SSA and the Union, and also violated the Statute. As his award, the Arbitrator directed the Agency to (1) restore the status quo ante and (2) reimburse unit employees who were denied travel pay under the new travel policy, until such time as procedures or negotiations pertaining to this matter were completed.
The Agency excepts to the award on the basis that (1) the Arbitrator exceeded his authority by disregarding the agreement and Federal sector law, and (2) there was no change in conditions of employment giving rise to a bargaining obligation.
For the reasons stated below, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Union is the exclusive representative of bargaining unit employees in SSA, including employees in the Region. The level of exclusive recognition exists at the national level of SSA. The grievance in this case arose when the Region implemented the HHS travel policy providing for travel reimbursement if employees traveled beyond a 50-mile radius from their homes or normal duty stations. Previously, some employees had been partially reimbursed for travel based on a 30-mile radius.
The record indicates that at the time SSA implemented the policy in the Region, SSA and the Union were negotiating at the national level over the travel policy. Union's Brief to Arbitrator at 3. As explained by the Agency, SSA and the Union were negotiating over the Agency's desire to establish a uniform travel policy of a 50-mile radius for reimbursement in all of SSA's regional offices. Agency's Brief to Arbitrator at 3-4.
In addressing the grievance, the Arbitrator first responded to the Agency's contention that the grievance was not timely and properly filed because it was filed at the national, rather than the local level. The Arbitrator found that the parties' agreement provided the option of filing at either level. Consequently, he found that the grievance was both timely and properly filed.
The Arbitrator then addressed the merits of the grievance. In the absence of a stipulated issue, the Arbitrator framed the issue as follows:
Whether the matter complained about is grievable and subject to mandatory bargaining, upon the Union's request before a change can be made and/or was the contract violated by unilaterally making the change?
Award at 5.
The Arbitrator concluded that SSA violated the parties' agreement and the Statute by attempting to change the practice regarding travel reimbursement from a 30-mile radius to a 50-mile radius.
In reaching this conclusion, the Arbitrator found that the parties' agreement "specifically requires the maintenance of benefits unless negotiations occur." Award at 6. The Arbitrator noted that negotiations were taking place on a nation-wide level, but that no negotiations had occurred at the local level when the change in policy was implemented.
The Arbitrator rejected the Agency's position that it had no obligation to bargain over the implementation of the 50-mile radius policy because HHS had determined to use the larger area. The Arbitrator found that "[t]here was never any administrative determination to use the larger area, only some vague reasoning that there was an unwritten rule that was now going to be implemented as a written rule." Id. The Arbitrator noted that if SSA wanted to change the travel policy, it could do so "but only after notifying the union and following the [ ] procedure listed in 5 USC 71, as specifically provided for in the agreement." Id. at 7. The Arbitrator found, however, that the "attempt to change what had been the practice of 30 miles violates article 1 sub 2 and 4 of the contract and 5 USC 71." Id.
Finally, the Arbitrator rejected the Agency's argument that the Union failed to timely invoke the negotiation process. The Arbitrator noted that the Union invoked its rights at the appropriate time in initiating arbitration over the instant grievance at the same time negotiations over the travel policy were occurring at the national level.
Having found a violation of the parties' agreement and the Statute, the Arbitrator sustained the grievance. As a remedy, he ordered the following:
The remedy shall be to restore the status quo ante. The employees who were denied travel pay for travel less than 50 miles but more than 30 miles from their home or their normal duty station shall be entitled to partial per diem within that radius. This shall continue until the procedures and or the negotiations required by 5 USC 71 shall be completed.
Id. at 8.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the award is deficient because the Arbitrator "exceeded his authority and violated law, rule and regulation by disregarding the controlling language of the agreement and of [F]ederal sector law regarding the implementation of local travel policy in Region II." Exceptions at 1. The Agency also argues that there was no change in conditions of employment requiring negotiations with the Union. The Agency does not challenge the Arbitrator's finding that the grievance was timely and properly filed.
With regard to its first exception, the Agency argues that the award is "ultra vires" because it was ordered to "be applied to a higher level agency which has no privity of agreement with the grieving union." Id. The Agency argues that SSA has no authority to implement the award because reimbursement for travel is subject to a determination of appropriateness made by a "higher level agency official . . . ." Id. at 2. In this connection, the Agency cites two SSA regulations which, according to the Agency, indicate that SSA recommended reimbursement for travel exceeding 30 miles but that such recommendation was subordinate to the actual policy of reimbursement for travel exceeding 50 miles adopted by HHS' servicing fiscal office.(*)The Agency further argues that the servicing fiscal office had determined that a 50-mile radius was the customary, reasonable, though unwritten, official policy, although "some reimbursements had been erroneously made." Id. at 5. Because, in the Agency's view, the effect of the award is to "enforce contractual obligations upon the [HHS], Region II, which is not party to the agreement[,]" the Arbitrator has "essentially rewritten the agreement . . . ." Id. at 2, 5. The Agency argues that the award, therefore, must be modified or set aside.
In its second exception, the Agency contends that there was no change in conditions of employment requiring negotiations with the Union. The Agency states that the only change that occurred was that a "previously unwritten policy of the HHS fiscal office became a written policy . . . ." Id. at 6. The Agency contends that any past reimbursement for travel less than a 50-mile radius was erroneous and contravened the existing customary and reasonable policy. By finding that there was a violation of the parties' agreement, the Agency asserts that the Arbitrator substituted his judgment for that of the HHS official responsible for determining the proper radius for travel reimbursement. The Agency further argues that the award impermissibly attempts to make HHS a party to the agreement.
B. The Union's Opposition
The Union maintains that the Agency's exceptions constitute an attempt to relitigate the merits of the case before the Authority and that they merely express disagreement with the Arbitrator's award. In this regard, the Union asserts that the Arbitrator "clearly found there was a change in terms and conditions of employment and so ordered an appropriate remedy." Opposition at 1.
IV. Analysis and Conclusions
We conclude that the exceptions provide no basis for finding the award deficient.
With regard to the Agency's contention that there was no change in conditions of employment other than a previously unwritten policy being reduced to writing, we find that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the case before the Authority. Such an exception provides no basis for finding an award deficient. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 39 FLRA 1103 (1991).
Contrary to the Agency's assertion that no change occurred, the Arbitrator found that there was a change in practice that violated both the parties' agreement and the Statute. In this connection, the Arbitrator found that no administrative determination had been made to use a radius larger than 30 miles for reimbursement purposes. Instead, he found that a practice existed in the Region of providing partial reimbursement for travel in excess of 30 miles, that the parties' agreement required the maintenance of benefits unless negotiations occurred, and that no negotiations had occurred at the local level. The Arbitrator did not substitute his judgment for that of the Agency in determining the proper radius for travel reimbursement, as argued. In fact, the Agency concedes that some employees had been reimbursed at the 30-mile level, although it argues that such reimbursements were improper. Additionally, the Agency acknowledges that "the local travel reimbursement policy varied greatly among the regions of the [HHS]." Exceptions at 2. Consequently, the Agency's assertion that no change occurred lacks merit.
Similarly, the Agency's other exception provides no basis for finding the award deficient. The Agency argues that SSA cannot implement the award because reimbursement for travel is subject to a determination of appropriateness that is made by the HHS servicing fiscal office. In this regard, the Agency notes that the fiscal office had determined that the customary and reasonable radius for reimbursement purposes was 50 miles. The Agency argues that the Arbitrator's award, ordering restoration of the status quo ante, essentially enforces a contract provision against HHS, which is not a party to the agreement.
Contrary to the Agency's assertion, we find that the Arbitrator did not make HHS a party to the agreement between SSA and the Union; nor did the Arbitrator expressly order HHS to take any action. The Arbitrator's remedy was directed solely to SSA. In this regard, SSA was the only named party in the Arbitrator's award and the Arbitrator found that SSA violated the parties' agreement and the Statute. No such finding was made with regard to HHS, which was not a named party.
The Agency's argument that SSA cannot implement the award also is incorrect. Essentially, the Agency argues that SSA is precluded from complying with the award because reimbursement at the 30-mile radius is inconsistent with the HHS travel policy. As noted, the Agency argues that the travel policy did not change the existing practice, but was simply a written clarification of the existing practice in the Region. We have previously rejected the Agency's contention that the travel policy is simply a written affirmation of existing practice. Instead, we have sustained the Arbitrator's finding that the HHS travel policy changed the existing practice in the Region.
Having found that the HHS travel policy changed the existing practice, the Agency may not now argue that the HHS travel policy constitutes a binding regulation governing travel reimbursement for bargaining unit employees in the Region. It is well established that the duty to bargain under the Statute requires that, in the absence of a clear and unmistakable waiver of bargaining rights, parties satisfy their mutual obligation to bargain prior to implementing changes in conditions of employment of bargaining unit employees. See National Weather Service Employees Organziation and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-96 (1990) (describing the circumstances under which an agency is required to bargain over changes in conditions of employment). Except for specific circumstances, an agency is required to maintain the status quo ante during the bargaining process. Id. at 396. Examples of those circumstances are where a union has not timely requested bargaining or timely requested the services of the Federal Service Impasses Panel, or where implementation is consistent with the necessary functioning of the agency. Id.
As the Arbitrator found, SSA and the Union were negotiating at the national level concerning the travel policy. During this time, SSA could not lawfully implement the policy unless circumstances were present that permitted the change to be m