52:0677(65)AR - - AFGE, Local 3302 and HHS, SSA - - 1996 FLRAdec AR - - v52 p677



[ v52 p677 ]
52:0677(65)AR
The decision of the Authority follows:


52 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3302

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION(1)

(Agency)

0-AR-2723

_____

DECISION

November 29, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(2)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Eckehard J. Muessig filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator ruled that the use by the Agency's district manager of a parking space did not violate the parties' Memorandum of Understanding (MOU).

We conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

When one of the Agency's district offices was scheduled to move, the parties negotiated an MOU. Article 3 of the MOU pertinently provides:

The Union and Management agree that the free parking space in the building garage will primarily be used by the Public Affairs Specialist, SSI Outreach Coordinator, or other employees travelling on official business.

Award at 3.

By the time of the actual move, the specified positions had become vacant, and the Agency's district manager had assumed the duties and the official travel of the two positions. Consequently, he began using exclusively the parking space addressed in the MOU. The Union filed a grievance claiming that under the MOU, use of the parking space was limited to unit employees.

The Union argued that the term "employees" in the MOU provision refers only to unit employees. In addition, the Union asserted that this was the only legal interpretation of the provision. The Union maintained that it would have been contrary to law for it to have negotiated conditions of employment affecting the district manager. The Agency argued that the bargaining history showed that the term "other employees travelling on official business" included management officials if they were required to assume the travel of the specified positions. Id. at 4.

The Arbitrator denied the grievance. He found that the MOU neither specifically reserves the parking space for unit employees nor specifically prevents management from using it. He determined that the Union had failed to establish that the parking space is reserved by the MOU for the exclusive use of unit employees. Therefore, the Arbitrator ruled that the district manager's use of the parking space did not violate the MOU.

III. Exceptions

A. Union's Contentions

The Union contends that the award is deficient on several grounds.

First, the Union contends that the award is based on a nonfact. The Union argues that the Arbitrator based the award on an erroneous determination that the district manager is an "employee" within the meaning of the MOU.

Second, the Union maintains that the MOU expressly forbids the use of the parking space by anyone other than a unit employee. Therefore, the Union contends that, by allowing use of the space by the district manager, the award fails to draw its essence from the MOU, and the Arbitrator exceeded his authority.

Finally, the Union contends that the award is contrary to law. The Union argues that the award conflicts with the court's decision in U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point) and Authority cases following Cherry Point, which hold that a union cannot regulate the working conditions of managers and supervisors. The Union claims that, consequently, the MOU must be interpreted as reserving the parking space exclusively for unit employees.

B. Agency's Opposition

The Agency contends that the Union's exceptions provide no basis for finding the award deficient.

IV. Analysis and Conclusions

A. The Award is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). Although this ground permits an appealing party a limited challenge to the factual basis of an arbitrator's award, the appealing party may not challenge the arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996) (Army Corps of Engineers); National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995) (NLRB).

In this case, the Arbitrator's determination that the term "employee," as used in the disputed provision of the MOU, was not restricted to unit employees constituted his interpretation of the MOU. As such, it cannot be challenged as a nonfact. Army Corps of Engineers, 52 FLRA at 210-11; NLRB, 50 FLRA at 92. Accordingly, we deny this exception.

B. The Award Draws Its Essence From the MOU and the Arbitrator Did Not Exceed His Authority

The Arbitrator interpreted the term "employee," as used in the disputed provision of the MOU, as not restricted to unit employees. The Union has not demonstrated that this interpretation of the MOU disregards the MOU or is irrational, implausible, or unfounded. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). Accordingly, the Union has not established that the award fails to draw its essence from the MOU. The Union also fails to establish that the Arbitrator exceeded his authority by ruling that the use of the space by the district manager did not violate the MOU. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529, 533 (1992). Therefore, we deny this exception.

C. The Award is Not Contrary to Law

When an exception contends that an award is contrary to law, the Authority reviews the questions of law raised by the award and the exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). The question raised in this case is whether a collective bargaining agreement provision that directly implicates the working conditions of managers or supervisors is enforceable.

Before the decision of the court in Cherry Point, 952 F.2d 1434, the Authority uniformly and repeatedly held that although bargaining over matters that implicated the working conditions of managers or supervisors was not mandatory, an agency could elect to bargain over such matters unless bargaining over a specific matter was otherwise prohibited. E.g., Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 952 (1988); National Labor Relations Board Union, Local 21 and National Labor Relations Board, 15 FLRA 798, 798 (1984); International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 445 (1980) (Philadelphia Naval Shipyard).

In Cherry Point, the court ruled that the disputed proposals were not within the mandatory duty to bargain under the Statute to the extent that they purported to regulate the conditions of employment of supervisors and employees in other bargaining units. Accord American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995) petition for review filed as to other matters, No. 95-1593 (D.C. Cir. Dec. 1, 1995) (OPM). On the basis of Cherry Point, the Authority subsequently stated that it would no longer follow Philadelphia Naval Shipyard and other decisions that held that an agency could elect to bargain over the working conditions of managers and supervisors. American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1088 n.6 (1994). However, the Authority recently indicated that it would revisit the question of whether an agency could choose to bargain over such matters. See OPM, 51 FLRA at 501 n.16.

We now reaffirm the construction of the Statute contained in Philadelphia Naval Shipyard. In so doing, we rely primarily on the fact that the Statute does not expressly prohibit bargaining over matters that directly implicate the working conditions of managers and supervisors. Thus, there is no clear statutory basis for concluding that bargaining over such matters is prohibited. We also find no policy basis, and none is asserted, for precluding agency management from agreeing to enter into such negotiations. Moreover, this construction of the Statute is fully consistent with the discretion of agency employers to establish the working conditions of managers and supervisors and the well-established principle that management can bargain to the extent of its discretion. E.g., International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 682 (1995), review denied; enforcement granted, 88 F.3d 1279 (1996). Therefore, we will adhere to the position expressed in Philadelphia Naval Shipyard that an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors and managers.

In reaching this conclusion, we stress that a union may not require bargaining over permissive subjects and that an agency can withdraw from negotiations over permissive subjects at any time prior to reaching agreement. National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 61 (1986) ("Negotiations on permissive subjects may begin and later cease."). However, an agency may voluntarily agree to a proposal that directly implicates the working conditions of managers or supervisors. Cf. E.G. & H. Inc. v. NLRB, 949 F.2d 276, 279-80 (9th Cir. 1991) (an employer in the private sector may voluntarily recognize a union containing supervisors, and any agreements reached are enforceable); Maas & Feduska, Inc. v. NLRB, 632 F.2d 714, 720 (9th Cir. 1979) (employer contributions to a fringe benefit trust fund on behalf of supervisors is a permissive subject of bargaining). Once an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute. Cf. National Treasury Employees Union, Chapter 97 and U.S. Department of the Treasury, Internal Revenue Service, Fresno Service Center, 45 FLRA 1242, 1250 (1992) (once an agency agrees to a matter that is a permissive subject of bargaining under section 7106(b)(1) of the Statute, the provision is enforceable consistent with that section).

The court's decision in Cherry Point does not compel a contrary result. That decision ruled only that the disputed proposals were not within the mandatory duty to bargain under the Statute to the extent that they purported to regulate conditions of employment of supervisors and employees in other bargaining units. 952 F.2d at 1443. In so holding, the court was not required to determine whether a collective bargaining agreement provision that directly implicated the working conditions of managers or supervisors is enforceable. Moreover, while the court stated it was unaware of precedent for finding bargaining over such proposals to be permissible, id. at 1442, it is uncertain how the court would rule on the question presented in this case. See AFGE Local 1012 v. FLRA, 841 F.2d 1165, 1167 (D.C. Cir. 1988) ("[W]e agree with the FLRA that the governing principle in this case is clear: a proposal concerning the filling of supervisory positions . . . is negotiable only at the election of the agency.").

In this case, the Arbitrator found that the disputed provision of the MOU allowed the district manager to use the parking space. We find that the provision, as interpreted by the Arbitrator, directly determined working conditions of the district manager. Consequently, although bargaining over the matter was not mandatory, it was permissible, and there is no assertion that the provision is otherwise inconsistent with law or regulation. Therefore, the provision of the MOU was enforceable by the Arbitrator, and the Union has failed to establish that the award is contrary to law. Accordingly, we deny this exception.

V. Decision

The Union's exceptions are denied.

Member Armendariz' concurring opinion:

I agree with my colleagues that the Union's exceptions based on nonfact, essence, and the Arbitrator's exceeding his authority do not provide grounds for finding the award in this case deficient under section 7122. Unlike my colleagues, I find that the Arbitrator concluded that the parties' Memorandum of Understanding (MOU) does not prevent management officials from using the parking space in dispute. Consequently, I write separately.

Specifically, the Arbitrator framed the question to be decided as "whether the language of the MOU prevents [the management official], who subsequently assumed the travel duties of the two positions, from using the space." Award at 11. The Arbitrator rejected the Union's claim that the term "employees" in the MOU meant bargaining unit employees only. Instead, he concluded that "the final MOU language does not specifically reserve the parking space to bargaining unit members, nor does it specifically prevent a member of management from using it." Id.

In U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point) the court pointed out that a union could propose to limit the use of parking spaces to bargaining unit employees without thereby falling outside the duty to bargain because the proposal "might have some impact on" the conditions of employment of nonunit personnel, such as supervisors or management officials. Id., at 1440 (emphasis in original). According to the court, such a proposed limitation might restrict management's ability to use parking spaces for supervisors or management officials, but because it did not "purport to regulate" the use of parking spaces by supervisors and management personnel, it would not be outside the duty to bargain. Id., at 1441. As I understand it, the court in Cherry Point drew a line between proposals that prescribe the uses of parking spaces for bargaining unit employees, and thereby incidentally affect the uses nonunit personnel such as supervisors and management officials can make of those spaces, and proposals that affirmatively provide for the use of parking spaces by supervisors and management officials.

In my view, the Arbitrator in this case honored the line drawn by the court in Cherry Point. He found that the MOU prescribed the uses bargaining unit and other employees could make of the parking space and that those uses did not prevent management from using the parking space. He did not find that the MOU affirmatively provided for the use of the parking space by management personnel.

Because I conclude, contrary to the Union's argument, that the Arbitrator did not construe the MOU as purporting to regulate the conditions of employment of management officials within the meaning of Cherry Point, I find that the Union misinterpreted the Arbitrator's award and, on that basis, I concur in the decision to deny the Union's exceptions. Accordingly, I do not reach the issue of whether a contract provision providing for the conditions of employment of supervisors and management officials would constitute a permissive or prohibited subject of bargaining.




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

1. During the pendency of this case, the Social Security