54:0163(21)AR - - AFGE Council 220 and SSA - - 1998 FLRAdec AR - - v54 p163
[ v54 p163 ]
The decision of the Authority follows:
54 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
May 7, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabiniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Herbert L. Haber filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.
The Arbitrator denied a grievance and ruled that the Agency was justified in relying upon a Memorandum of Understanding (MOU) to require the grievants, who are on 100 percent official time, to sign in and sign out of the office.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exception.
II. Background and Arbitrator's Award
The President of Local 3369 of the American Federation of Government Employees (AFGE), Council 220 (Local President) has been on 100 percent official time since 1979. Until 1982, the Agency did not require him to account for his work time.
In 1982, following the negotiation of a national Master Agreement that included new provisions relating to official time for Union representational activities and the accounting for that time, the Agency's regional representatives requested that the Local President begin accounting for his time. The Union challenged the Agency's interpretation of the new provisions as affecting the Local President's non-reporting status. The parties submitted the matter to an arbitrator, who held in 1982 that the Agency violated the agreement by requiring the Local President to sign in because the agreement provision "did not apply to an employee who devoted 100 percent of his time performing representational function and because the [Agency's] request constituted a change in a past practice which was not specifically and unambiguously covered by the parties['] [a]greement." Award at 3 (quoting the 1982 award).
At that time, the Local President was reporting to and working in the Union office that was located in the same building as the Agency's Midtown Manhattan office. He continued to do so without accounting for his time. Other Union officers coming to the Union office to work also continued the practice of not signing in or out for their time at the office, although they did sign in and sign out at their assigned work sites. In 1989, the Union office was moved to the Federal Building in lower Manhattan, where it became associated with the Agency's Downtown Office. At that time, the manager of the Downtown Office became the Local President's supervisor.
On January 25, 1990, a new national agreement took effect. That agreement included a flextime plan and stated in Article 10 that "[a]ll bargaining unit employees will be expected to use time recording equipment or sign in and sign out each day using a sign-in/sign-out sheet provided by management." Id. at 4 (quoting the agreement). The Local President and the other Union officers continued their practice of not signing in and out at the Union office.
On May 14, 1990, the Downtown District Manager advised the Local President and the other Union officers that they were expected to comply with the sign-in, sign-out mandate of Article 10. Although the Agency did not act to enforce this advice, the Union filed a grievance protesting this action.
In response, the Agency's Assistant Regional Commissioner, Field Operations (ARC) sent AFGE Council 220 a letter setting forth the Agency's position on this issue as follows:
The language of [Article 10] expressly states: ["]All  bargaining unit employees will be expected to use time recording equipment or sign in and sign out each day . . . ." We believe the language of the contract is clear and unambiguous. An exception was made to having [the Local President] sign in when [the Division of Labor and Employee Relations] advised that union officials in other Regions who worked in locations other than [Agency] field offices were not required to sign in. Since [the Local President] is the only union official in this Region whose permanent duty location is not an [Agency] Field office, we understand the exception to the contract language cited above pertains only to [him]. Whether there was or was not a past practice of other union officials not signing in, we believe the negotiated language cited above supersedes any prior practices.
In December 1992, the parties negotiated a memorandum of understanding (MOU) which stated that it "prescribes the required daily sign in/out procedures for union officials throughout [the Agency.]" Id. at 5. The MOU stated in pertinent part:
1. The parties agree that the concept of accounting for employee time and attendance is necessary for efficient agency operations.
2. Union officials shall, on a daily basis, sign in when they arrive at and sign out when they depart from their assigned worksites in accordance with applicable time and attendance procedures. . . . The parties agree that practices which were in effect prior to August 12, 1991, shall remain in full force and effect provided that they comply with General Accounting Office (GAO) policies and procedures and this [MOU].
On February 4, 1993, the ARC directed the Local President to begin signing in while working at the Union office, and shortly thereafter the Local President did so. On March 5, 1993, the
Union filed a grievance at the regional level over the matter.(1) The ARC rejected the grievance, and the matter proceeded to arbitration.
After finding that the grievance was arbitrable,(2) the Arbitrator found, on the merits, that the Agency's case "turns primarily on the MOU signed by the parties in 1992[.]" Id. at 11. The Arbitrator stated that "[t]he 1989 GAO modifications, introduced with the establishment of flextime and dealing with sign-in and sign-out procedures generally, do not introduce any significant changes that would directly overrule the practice at issue." Id. He noted that the 1989 GAO modifications, which called for the daily recording of time and attendance data, contain exceptions, "at least one of which (Section 3.2.B.3.) would cover the instant dispute."(3) Id. at 12. However, he found that, in any event, any question raised on this point was rendered moot by the July 24, 1990, letter from the ARC which recognized an exception for the Local President to the sign in and out requirement. The Arbitrator stated that it was not until the 1992 MOU that the issue of time and attendance reporting by Union officials was considered.
The Arbitrator found that the "thrust" of the MOU was its requirement that, on a daily basis, Union officials sign in and out from their assigned worksites. Id. He also found that the MOU addressed certain circumstances in which signing in at the assigned worksite was impractical and offered procedures for agreement on other sites for such sign-in. Finally, he found that the MOU confirmed the continuation of previously existing practices that comply with GAO policies and with the MOU.
The Arbitrator stated that the fundamental issue was whether the Local President's practice of not signing in and out was in compliance with the MOU, and he found that it was not. The Arbitrator found that it was undisputed that one of the MOU's "primary targets" was the Local President's practice, and that the MOU's language requiring compliance with it was not ambiguous. Id. He stated that the MOU "specifically requires a daily sign-in and sign-out by Union officials[,]" and "nowhere suggests the acceptability of a practice that does not include an actual sign-in." Id. at 13. According to the Arbitrator, there is "no basis for a conclusion that the prior practice of no sign-in or sign-out by [the Local President] or the other Union officials working at the Union [o]ffice is recognized and endorsed by the 1992 MOU." Id.
As his award, the Arbitrator denied the grievance and stated that the Agency was justified in requiring the Local President and the other Union officials to sign in and sign out every day they work at the Union Office.
III. Positions of the Parties
A. Union's Exception
The Union contends that the award is contrary to law, rule, or regulation because it is contrary to the 1989 GAO regulations. According to the Union, the GAO regulations "do not require" the Arbitrator's ruling that the Agency was justified under the MOU in requiring the Local President and the other Union officials to sign in and sign out every day they work at the Union Office. Exception at 2.
B. Agency's Position
The Agency did not file an opposition to the Union's exception.
IV. Analysis and Conclusions
When a party alleges that an award is contrary to regulation, the Authority reviews the exception de novo. See 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)).
Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with, among other things, a Government-wide regulation. See U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1135 (1996). It is undisputed that the GAO regulations in this case are Government-wide regulations.(4)
The Arbitrator's award interpreting the MOU does not conflict with the GAO regulations. The Arbitrator interpreted the MOU as requiring a daily sign-in and sign-out by Union officials. Although the Union correctly states that the GAO regulations did not require the Arbitrator's ruling that the Agency was justified under the MOU in requiring the Local President and the other Union officials to sign in and sign out every day they work at the Union Office, this does not demonstrate that the award conflicts with the GAO regulations. In order to demonstrate that the award conflicts with the GAO regulations, it must be shown that the GAO regulations preclude the Arbitrator from having interpreted the MOU in the manner that he did. However, nothing in the GAO regulations cited by the Union precludes the Arbitrator from having interpreted the MOU as he did. Accordingly, the award does not conflict with the GAO regulations and, therefore, is not deficient under section 7122(a)(1) of the Statute.(5)
The Union's exception is denied.
GAO regulation 3.2.B states in pertinent part:
Because most federal civilian employees are paid on an hourly basis (or fraction of an hour) and charged leave on that basis, an accurate record of the times an employee works and is absent must be recorded daily. Time and attendance data may be recorded on time and attendance forms (or related supporting documentation, if appropriate) or entered directly into a computer. If daily recording is impractical for some employees, exceptions are allowed if authorized in writing by the agency head (or designee). Primary bases for recording are set forth in section 3.2.B.1[.] Exceptions are contained in section 3.2.B.2 through 5.
GAO regulation 3.2.B.3 states:
Agencies with employees working at remote sites away from their supervisors and timekeepers must also provide reasonable assurances that these employees are working when scheduled, using such techniques as[:]
a. arrangements with other timekeeping or supervisory personnel to provide observation, where feasible;
b. occasional supervisory telephone calls to an employee during times the employee is scheduled to be on duty;
c. occasional visits by the supervisor to the employee's work site; and
d. determining reasonableness of work output for time spent.
GAO regulation 3.2.B.5 states in pertinent part:
Agencies may select other methods that suit their circumstances and that meet the time and attendance objectives set forth in section 3.1 if these methods are approved in writing in advance by the Comptroller General.
(If blank, the decision does not have footnotes.)
1. At about the same time, AFGE filed a national-level grievance alleging that the Agency was violating the law and the MOU by unilaterally implementing the sign in/sign out procedures nationally. According to the Arbitrator's award in the instant case, the national-level grievance is pending.
2. No exception is taken to this finding.
3. The text of the GAO regulations referenced in this decision is set forth in the Appendix to this decision.
4. See United States Department of Health and Human Services, Region II, New York, New York, 26 FLRA 814, 828-29 (1987).
5. We note that the GAO regulations cited by the parties and the Arbitrator were superseded by regulations that were promulgated by GAO and took effect on March 22, 1996, approximately two and one-half months before the Arbitrator issued his award. The 1996 regulations state, in relevant part:
The [GAO] has revised chapter 3. . . . The revisions co