44:1280(107)AR - - HHS, SSA, Baltimore, MD and AFGE, National Council of SSA Field Operations Locals - - 1992 FLRAdec AR - - v44 p1280



[ v44 p1280 ]
44:1280(107)AR
The decision of the Authority follows:


44 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS

(Union)

0-AR-2190

DECISION

May 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Herbert N. Bernhardt 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 exception.(1)

The Union filed a grievance alleging that the Agency had not properly implemented a Memorandum of Understanding (MOU) concerning the installation of ergonomic furniture in all of the Agency's field offices. The Arbitrator sustained the grievance.

For the following reasons, we conclude that the Agency's exception fails to establish that the award is deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievance arose out of the computerization of work at the Agency's field offices. The parties entered into an MOU dated September 28, 1987, setting forth the parties' understandings regarding the implementation and impact of the Agency's "Claims Modernization Project/Field Office Systems Enhancement Phase III." Agency's Exception, Attachment 2 at 1. The MOU included, among other things, provisions for the installation of ergonomic furniture used with the computer equipment. These provisions had been placed in the MOU at the direction of the Federal Service Impasses Panel (the Panel) in Social Security Administration and National Council of SSA Field Operations Locals, American Federation of Government Employees, AFL-CIO, 87 FSIP 46 (1987) (SSA). The Panel had required the parties to adopt the following language:

The Employer shall use its best effort to assure that a program of installation of ergonomic furniture in all offices is followed expeditiously. The Employer is committed to requesting full appropriations from Congress which are necessary to complete installation. The Employer will attempt to schedule the installation of future computer hardware with the installation of ergonomic furniture simultaneously.

Id., slip op. at 15.

The Union filed a grievance alleging that the Agency had not complied with the above-quoted provision.

The Arbitrator stated:

This case presents a complicated list of interrelated issues. Basically, however, they can be broken down into the following categories:

1. Design and purchase of ergonomic furniture.

2. Selection of heating, ventilation and lighting systems.

3. Selection of floor plans and site preparation.

4. Provision of training.

Award at 24-25.

With respect to the issue of ergonomic furniture, the Arbitrator found that the Union's position that management "fail[ed] to measure up to the requirements of the [Panel's] decision appears to be the correct one." Id. at 25. The Arbitrator noted that, in accordance with the Panel's decision in SSA, the Agency was required to attempt to install ergonomic furniture and computers simultaneously. The Arbitrator also noted that the Agency had installed "1300 computers and only 360 ergonomic work stations." Id. (2) The Arbitrator stated that "[w]hile the word 'attempt' indicates some flexibility, even as so modified the word simultaneously cannot comprehend such a gap." Id.

The Arbitrator acknowledged that the Agency was not in complete control of its final budget appropriation. However, the Arbitrator expressed doubts concerning whether the Agency had done all that it could do to obtain the needed funds. The Arbitrator found, based on his interpretation of the Panel's decision in SSA, that the Agency was required to place a higher priority on obtaining more funds for the installation of ergonomic furniture.

The Arbitrator directed the parties to design a schedule to achieve ergonomic work stations for all Agency employees with VDTs over the next 5 years. The Arbitrator stated that the agreement "should also include a presentation to convince the Administration and the Congress that the program is in the public interest." Id. at 26.

The Arbitrator sustained the grievance and, as relevant here, made the following award:

1. The Agency and the Union are directed to negotiate an agreement for installation of ergonomic furniture in accordance with the terms of this Award. Jurisdiction is retained for six months in order to settle any disputes arising between the parties.

Id. at 30.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator's award directly interferes with management's right to determine its budget under section 7106(a)(1) of the Statute. The Agency argues that "[b]y requiring [the Agency] to bargain a 5-year schedule for furniture installation, the Arbitrator is requiring the Agency to create a line item figure for submission in its budget for each of these 5 years." Exception at 6.

Relying on American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Wright-Patterson), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982), the Agency argues that the award "will require a specific dollar amount for the negotiated schedule to be implemented." Id. According to the Agency, the agreement required by the award "will completely dive[s]t management of discretion and control over a specific [A]gency funding decision . . . ." Id. The Agency argues that the award inherently prescribes the programs and operations that will be included in its budget and will require the Union's direct involvement in the Agency's budget process for a specific item and over a specific period. In this regard, the Agency states that "[t]he parties will be bargaining over how the Agency[']s funds will be spent for furniture over the next 5 years." Id. at 7. The Agency asserts that although the Arbitrator was aware that the Agency was faced with budgetary restraints and did not completely control its budgetary process, he nevertheless ordered the installation of ergonomic furniture over a 5-year period. In sum, the Agency requests that this aspect of the award be set aside because it interferes with its right under section 7106(a)(2)(A) of the Statute to determine its budget.

B. The Union

The Union contends that the Agency's exception is premature because the outcome of the bargaining ordered by the Arbitrator in his award has not yet been determined.

The Union also contends that the Agency does not demonstrate that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. In particular, the Union asserts that the award does not interfere with management's right to determine its budget under section 7106(a)(1) of the Statute. The Union argues that the Agency's reliance on Wright-Patterson is inappropriate in this case because the award does not prescribe programs or dollar amounts for programs to be included in the Agency's budget. Further, the Union argues that the Agency does not demonstrate that the cost of implementing the award is significant or unavoidable. The Union argues that the Agency does not address whether increased costs would be offset by compensating benefits. According to the Union, nothing in the award "abrogates . . . the [A]gency's right to determine the budget." Opposition at 4.

The Union notes that the Panel's award required simultaneous installation of furniture and computers and that computers were installed by the Agency in all of its offices in December of 1988. The Union argues that, in effect, the Arbitrator's "five year extension to complete installation provides the [A]gency a total of nine years after the date of the . . . MOU" within which to complete the installation of ergonomic furniture. Id. at 5 (emphasis in original).

IV. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.

A. The Agency's Exception Is Not Premature

As a preliminary matter, the Union contends that the Agency's exception is premature because negotiations as to the disputed aspect of the award have not been completed. We find that, by requiring the parties to bargain concerning the installation of ergonomic furniture, the award constitutes a final determination by the Arbitrator as to the issue of ergonomic furniture. Therefore, we reject the Union's contention.

B. The Award Is Not Deficient

When an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a) of the Statute, we will examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service).(3)

If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we will not find that such an award is contrary to law and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law. However, because the contractual provision may be susceptible to a different and sustainable interpretation by a different arbitrator, the provision itself will not be affected.

Applying that approach in this case, we find that the provision of the MOU enforced by the Arbitrator constitutes an arrangement for employees adversely affected by the exercise of management's right to determine the technology, methods, and means of performing work and that the enforcement of that provision does not abrogate management's right to determine its budget under section 7106(a)(1) of the Statute. Specifically, we find that the provision of the MOU enforced by the Arbitrator's award constitutes an arrangement that is intended to ameliorate the adverse effects on employees' health resulting from the Agency's exercise of its right to determine the technology, methods, and means of performing work by installing computers in its offices.

As to whether the provision of the MOU, as applied by the Arbitrator, would abrogate management's right to determine its budget, we note that the award does not prescribe a program, operation, nor dollar amount that the Agency must include in its budget. Consequently, the award enforcing the MOU would not preclude management from exercising its right to determine its budget under section 7106(a)(1) of the Statute. Accordingly, because the award leaves undisturbed management's right to determine its budget, the award does not abrogate the exercise of that right. Therefore, we find that the Agency has not established that the award is contrary to section 7106(a)(1) of the Statute.

V. Decision

The Agency's exception is denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1. The Union also submitted a copy of a letter from the Union to the Arbitrator, dated November 26, 1991, requesting the Arbitrator to clarify his award. Inasmuch as there is nothing in the record that demonstrates that the Arbitrator clarified his award, we will not address the request further.  

2. The Agency states "[t]here are in fact 1300 offices, of which, only 360 offices (at the time of the hearing) had modular/ergonomic furniture." Exception at 5. The Agency acknowledges that "[t]he Arbitrator's essential point[,] however, that there is a gap between terminals and furniture[,] is correct." Id. Similarly, the Union states that "[t]o date, . . . less than 400 offices out of 1300 have installed modular work stations." Opposition at 4.

3. Because it is apparent that the provision of the MOU enforced by the arbitrator is an arrangement, we find that it is appropriate to apply the approach set forth in Customs Service. See U