Social Security Administration, Baltimore, Maryland and American Federation of Government Employee

[ v55 p1063 ]

55 FLRA No. 173

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
(Union)

0-AR-3107

_____

DECISION

November 12, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome T. Barrett 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 Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained the Union's grievance over the Agency's alleged failure to follow agreed-upon procedures set out in various partnership and other agreements. The Arbitrator ordered that an unresolved partnership issue be remanded to the parties' National Partnership Council. The Arbitrator also ordered the parties to design an alternative dispute resolution process, using a facilitator, and, if successful in designing such a process, to apply it toward resolving the remanded issue.

      For the reasons that follow, we conclude that the Agency has failed to establish that the award is deficient because the award: (1) is contrary to law; (2) does not draw its essence from the parties' agreement; (3) requires the parties to engage in mid-term bargaining; (4) is based on a nonfact; (5) violates management's rights; or because (6) the Arbitrator exceeded his authority. Accordingly, we deny the exceptions. [ v55 p1064 ]

II.     Background and Arbitrator's Award

A.     Background

      On June 22, 1994, the Social Security Administration (SSA or Agency) and the American Federation of Government Employees (AFGE or Union) jointly signed a National Partnership Agreement (NPA) creating a National Partnership Council (NPC), composed equally of Union and Agency members. The NPA listed various objectives and operating procedures for the NPC, including achieving consensus on the nature of and solution of problems when possible; identifying and using alternative dispute resolution (ADR) processes; and ensuring full implementation of Executive Order (E.O.) 12,871 over all 5 U.S.C. § 7106(b)(1) issues. The parties later further memorialized the NPC's existence through a single page, unnumbered "Partnerships" Article included in their March 5, 1996 National Agreement. [n1] 

      In July 1994, the NPC approved the charter of its first workgroup, the Management Information Integrity Partnership Team (MIIPT). Transcript at 133. The MIIPT Charter provided, in part: "SSA and the AFGE will cooperate as equal partners in efforts to develop and implement plans to ensure that improper activities are identified and eliminated and to strengthen integrity in Agency performance measure[s]." Id. at 47. The Union acknowledged that the MIIPT was a "recommending body . . . chartered to prsent [sic] the issues to the [NPC], and the [NPC] was the decision-making body." Id. at 93. The Union further acknowledged that MIIPT recommendations(s) were merely advice and were not binding. Id. at 93-94.

      Beginning in September 1994, the MIIPT met regularly for more than a year before issuing final recommendations, in July 1996, to the NPC. In August 1996, NPC members adopted by joint consensus decision all but three of the MIIPT's recommendations. As relevant to the exceptions here, NPC members did not reach consensus regarding the disposition of Recommendation #3, which required that "SSA [] develop an alternative to the current process for allocating staff resources to field offices." Exceptions at 4.

      The NPC Agency members considered Recommendation #3 to have died for lack of achieving joint consensus by Union and Agency members. Transcript at 267-68. Agency members subsequently proposed forming an Agency-driven workgroup, with Union participation, to evaluate and recommend to management an alternative method for allocating field staff. The NPC Union members, on the other hand, did not consider the status of Recommendation #3 to be conclusively determined. Union members wanted the NPC to retain decision-making authority and proposed that the NPC undertake ADR to resolve the disposition of Recommendation #3. Award at 7-8.

      In December 1996, the Agency established an independent workgroup, the "Staffing and Methodology Workgroup" (SMW). [n2]  Although the Agency invited the Union to participate, the Union refused. [n3]  In April 1997, the Union filed a grievance alleging the Agency's actions relating to resolution of Recommendation #3 violated the parties' "National Agreement, the 1994 [NPA], the July 1994 Charter for the MIIPT `based on [SSA Commissioner] commitment in February 1994 to enter into an AFGE/SSA partnership on the issue,' and Executive Order 12871." Award at 2.

      During this time period, the Union also filed two unfair labor practice (ULP) charges against the Agency for refusing other requests to negotiate staff distribution issues. The Authority Administrative Law Judge (ALJ) concluded that the Agency had not committed any ULP(s). [n4]  The Union's grievance, however, was not [ v55 p1065 ] resolved and proceeded to arbitration. Since the parties could not agree on wording, the Arbitrator articulated the issues, as follows:

1.     Is the grievance filed by AFGE arbitrable? If so,
2.     Have SSA's actions with respect to Recommendation #3 of the MIIPT "SSA will develop an alternative to the current process for allocating staff resources to field offices" violated the National Agreement, the NPA, the July 1994 Charter for the MIIPT, or E.O. 12871?

Award at 2.

B.     Arbitrator's Award

      The Arbitrator found the grievance arbitrable. [n5]  On the merits, the Arbitrator found that, notwithstanding Authority precedent regarding rights under E.O. 12,871, the "SSA clearly elected to negotiate on (b)(1) matters." Award at 15.

      The Arbitrator distinguished United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998) (Member Wasserman concurring in part and dissenting in part), petition for review denied, 179 F.3d 946 (D.C. Cir. 1999) (Department of Commerce II), noting "[t]here is no case law which precludes the enforceability of agreements parties have made even if such agreements could be viewed to owe their existence to the policies promoted by the [E.O. 12871]." Award at 13. As a result, the Arbitrator determined that his role was to ascertain what the Agency, in its management role on the NPC, was obligated to do in light of the unresolved Recommendation #3. Id. at 15.

      The Arbitrator noted that the NPC operates on a consensus decision basis. Id. at 15. The Arbitrator also noted that the NPA does not obligate the NPC to accept every issue for consideration. Id. The Arbitrator further noted that the NPA provides, specifically, that if the NPC does not accept an issue for consideration, it is to be "handled under collective bargaining procedures." Id. at 16.

      The Arbitrator found that the NPC had accepted MIIPT's recommendations for consideration. Id. at 16. The arbitrator noted that the NPA addresses how an issue is to be handled if there is no agreement on that issue after it has been accepted and is under consideration. The NPA, at Appendix A, defines and distinguishes action among three types of issues. Id. As relevant to this case, Appendix A provides that (b)(1) issues are classified as "regular issues," and disagreement over such issues is to be resolved by "the previously agreed-upon ADR process [being] initiated." [n6]  Id. The Arbitrator determined that the primary difficulty with this case was that in the past all such unresolved issues had simply died, and therefore, the Arbitrator had before him no existing previously agreed-upon ADR process to consider. Id.

      The Arbitrator concluded that the Agency had failed in its assertion that the parties had intended unresolved issues to simply die out, because the Agency offered no proof that there was "any knowing acquiescence by [the Union] that an issue just dies." Award at 16. The Arbitrator further concluded that the absence of a previously established ADR process did not preclude the Union from insisting on one in the present case. Id. Finally, the Arbitrator determined that the Union's refusal to participate on the Agency's SMW did not constitute a waiver of following NPC procedures, particularly where the Agency's own processes did not incorporate NPC processes. Id. at 17.

      The Arbitrator sustained the Union's grievance and remanded Recommendation #3 to the NPC. Id. at 18. The Arbitrator ordered the parties "to make every effort to develop an ADR process for the purpose of trying to come to an agreement on the adoption of Recommendation #3 or some variant thereof, and to then apply such procedure - if they adopt one - to Recommendation #3." Id. The Arbitrator also directed the parties to enlist the services of a facilitator "empowered to engage in mediation, when appropriate," based upon recognizing potential difficulties between the parties in developing an ADR process; the fact that the NPC had used facilitators in the past; and that pre-existing perceptions may impede successful resolution of the issue at hand. Id. [ v55 p1066 ]

      The Arbitrator reasoned that to conclude otherwise would result in treating the "regular issue" of 7106(b)(1) matters as a "retained rights" issue, which, under the language of Appendix A, would not reflect the parties' intent. Award at 16. The Arbitrator further reasoned that the Union should not be left in a "lesser position" because it pursued the matter through "partnership" rather than "traditional bargaining." Id. at 17. According to the Arbitrator, "[s]ince the Partnership process does not allow [the Agency] to treat Recommendation #3 as a `retained right,' the absence of an ADR procedure should not be allowed to be a vehicle for Recommendation #3 to be treated as if it were a `retained right[,]' [especially where] the Partnership Agreement advises the parties `to avoid framing the issue into a rights-based bargaining dispute'." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency challenges the Arbitrator's award on numerous grounds. Specifically, the Agency contends that the award is contrary to law because it erroneously concludes that the Agency must bargain over all 5 U.S.C. § 7106(b)(1) issues. Exceptions at 7. According to the Agency, under section 7106 of the Statute, the parties' 1996 NPA, and E.O. 12,871, bargaining (b)(1) matters remains "at the election of the Agency." Id. at 8.

      Citing the ALJ's decision in the two ULP cases involving the Agency during this time period, the Agency asserts that the language that appears in the 1996 Partnerships Article, specifically, "[r]epresentatives will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1) . . .," simply recognizes the language of E.O. 12,871 and reiterates that the issues are negotiable at the election of the Agency rather than reflecting an Agency election to bargain all (b)(1) matters. Id. at 10. The Agency also cites other Authority and judicial precedent, including: Department of Commerce II, 54 FLRA at 360, for the proposition that the Arbitrator's effort to enforce E.O. 12,871 to create new or additional rights is contrary to the Executive Order itself; Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996), for the proposition that policy positions created by Executive Order cannot be used to vitiate statutory rights, including section 7106; and Federal Deposit Insurance Corporation, Headquarters and National Treasury Employees Union, 18 FLRA 768, 772 (1985), for the proposition that "[i]f the parties do bargain over such matters either may withdraw at any time prior to reaching agreement." Exceptions at 12.

      The Agency asserts that, in this case, not only did the Agency not consciously elect to bargain, but the Agency actually rejected Recommendation #3 because it concerned a permissive subject of bargaining. Id. at 8. According to the Agency, any waiver of the Agency's right to decide when to bargain 7106(b)(1) matters "must be certain and unmistakable, with ambiguity going to the holder of the right." Id. at 13-14. Therefore, the Agency contends, since the Agency did not waive its ability to elect to bargain over § 7106(b)(1) issues, the Arbitrator's decision is contrary to law.

      The Agency also contends that the award fails to draw its essence from the parties' agreement. The Agency points out that its alleged obligation to engage in ADR over the matter at issue is found not in the Partnerships Article, but, rather, is in the NPA, and that the Partnerships Article "was written to memorialize the Agency's commitment to Partnership rather than as an express statement of the Agency's partnership obligation." Id. at 23. The Agency then asserts that the Arbitrator erroneously concluded that the parties meant for the NPA to be "superceded by the National Agreement" (Id.), thereby improperly subjecting this issue to the parties' negotiated grievance procedure in their National Agreement. In that regard, the Agency maintains that "if SSA did nothing that violated the Partnership[s] Article or the [National Agreement], the grievance procedures contained [in the National Agreement] are inapplicable." Id.

      Citing Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), the Agency next contends that the Arbitrator's order that the parties design an ADR process "is tantamount to . . . ordering the parties to engage in union-initiated mid-term bargaining," and thus, renders the award deficient under the Statute. Exceptions at 15.

      The Agency also contends that the Arbitrator's decision that the Agency could not form a separate, agency-driven workgroup violates a management right under 5 U.S.C. § 7106. Exceptions at 24. According to the Agency, because there was no meeting of the minds and thus, no consensus within the NPC to accept MIIPT Recommendation #3, the Agency was within its rights to form a subsequent workgroup (SMW) to evaluate the conclusion of the failed recommendation. Id. at 25. In addition, the Agency contends that because the MIIPT workgroup was convened before the parties finalized the NPA, the workgroup was never actually subject to either the NPA or any ADR processes contained therein. Id. at 26. [ v55 p1067 ]

      The Agency contends that the Arbitrator's award was based on a nonfact in that the Arbitrator "confuse[d] the NPC's consideration of an issue with accepting an issue which requires a consensus vote." Exceptions at 20. The Agency asserts that because the NPC members never voted via a consensus on Recommendation #3, it was never accepted as an issue before the NPC. Id. As a result, the Agency argues that the Arbitrator's ordering the parties to design an ADR process on an issue that was never accepted by the NPC violates the 1994 NPC operating procedures (the NPA).

      Finally, the Agency contends that the Arbitrator exceeded his scope of authority by ordering the parties to design an ADR process in contravention of NPC operations process and or procedures. Id. at 30. According to the Agency, the reason the NPC has no ADR process in place is because there has not yet been consensus by the NPC to do so. Id. at 31. The Agency further contends the Arbitrator's decision exceeded the Arbitrator's own articulation of the scope of the issue(s) which the Arbitrator limited to whether the Agency violated one or more of the parties' agreements, not an ADR process. Id. at 31-32. The Agency reiterates that because the MIIPT workgroup was created (in July 1994) before the parties reached agreement on the Partnerships Agreement (in March 1996), the Arbitrator exceeded his authority in applying the Agreement to the workgroup to require the design of an ADR process. Id. at 32.

B.     Union's Opposition

      Citing Authority precedent, the Union contends that the Agency's exceptions reflect mere disagreement with the Arbitrator's decision and are an attempt to relitigate the merits of the dispute. [n7] 

      The Union acknowledges that there is no unqualified obligation to bargain over 5 U.S.C. § 7106(b)(1) issues in the Statute. Opposition at 12. According to the Union, however, the Statute does permit bargaining on § 7106(b)(1) issues if the Agency so elects, which it did here. Id.

      The Union contends the relevant sentence of the Partnerships Article, that the parties will "bargain in good faith, including bargaining on issues which may fall under 7106(b)(1)" and the language of the 1996 NPA that "[e]nsure full implementation of the Executive Order 12,871 over all 7106(b)(1) issues," reflect the Agency's clear and conscious election to negotiate § 7106(b)(1) matters. Id. at 13. The Union contends that the only way the Agency may "unelect to negotiate 7106(b)(1) matters" is by removing the pertinent language from the parties' agreement or letting the agreement expire. Id.

      The Union claims that there was no evidence or testimony presented during the arbitral proceedings to support the Agency's claim that this matter could not be grieved under the parties' National Agreement. Id. at 16. According to the Union, since there was no expressed intent to exclude the Partnerships Article from the national grievance procedure and because the NPA is incorporated into the Partnerships Article, the Arbitrator correctly concluded that violations of the NPA could be grieved under the parties' National Agreement. Id. at 17.

      The Union also contends that the issue of union-initiated midterm bargaining is simply an "obvious attempt to muddy the legal waters" as this issue was never before the Arbitrator, and that the parties, by consensus, agreed to handle the issue involving management and integrity of information pursuant to the terms of the NPA. Id. at 15.

      The Union contends that the Agency's assertion of nonfact reflects the Agency's refusal to include all of the MIIPT recommendations within the context on considering the issue of integrity of management information. Id. at 16. While the Union agrees with the Agency that the NPC was not obligated to accept all of the MIIPT recommendations, that does not absolve the Agency of its obligation to continue to work this issue using the NPA-required procedures. Id.

      The Union also contends that even though 5 U.S.C. § 7106(a) enables management to assign and direct employees, § 7106(b)(1) presents an exception in that bargaining over matters encompassed by § 7106(b)(1) is permitted even if such action affects management's rights under 7106(a). Opposition at 17-18. The Union asserts that the real issue is not so much the Agency's creation of a working group pursuant to its 7106(a) rights, but the Agency's failure to adhere to the NPA's provisions "for what will happen when there is no agreement on the issue being considered." Id. at 19. In that regard, the Union asserts that the Agency has [ v55 p1068 ] bound itself to engage in negotiations over section 7107(b)(1) in accordance with the procedures set out in the NPA.

      Finally, the Union contends the Agency's argument that the issue of ADR was not before the Arbitrator is "absurd." Id. at 20. According to the Union, ADR is at "the center of this dispute" since it involves the process by which the parties conduct their partnership. Id. The Union also contends the Agency's argument, regarding the workgroup being established prior to the Partnerships Agreement, was not raised during the arbitral proceedings and, thus, may not be raised now. Id.

IV.     Analysis

A.     The Award is Not Contrary to Law

      The Agency claims that the award is deficient under § 7122(a)(1) of the Statute because it is contrary to law. The Agency argues that because it never agreed to negotiate section 7106(b)(1) matters, the Arbitrator's direction to do so violates the Agency's rights under section 7106(b)(1) and E.O. 12,871 to not be externally forced to bargain over such matters.

      The Authority reviews questions of law raised in a party's exceptions and the arbitrator's award de novo. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Section 7106(b)(1) of the Statute makes clear that matters concerning numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty are negotiable only at an agency's election. National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 394 (1995) (NAGE and VA Lexington). [n8]  Consistent with this section, an agency may elect to bargain over these matters, and when a provision that concerns 7106 (b)(1) matters is included in an agreement that provision becomes enforceable through grievance arbitration. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990) (DOL-OSHA). Once the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator. American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Dallas, Texas, 52 FLRA 1313, 1319 (1997) (citing DOL-OSHA, 34 FLRA at 575).

      The "agreements . . . to negotiate on (b)(1) matters" that the Arbitrator considered here are the 1994 NPA and the Partnerships Article in the 1996 National Agreement. The parties' 1994 NPA, provides, in pertinent part:

This agreement is jointly entered into by and between the [SSA] and the [AFGE], for the purpose of establishing a full partnership agreement in the spirit of Executive Order 12871, Labor-Management Partnerships.
In order to achieve this purpose, the partners agree to the following objectives that are in the spirit of the President's Executive Order 12871.
(8)     Ensure full implementation of the Executive Order 12871 over all 7106(b)(1) issues, whether at the union's request or as the result of proposed Agency action, immediately upon signing of this agreement.

      The Arbitrator found the parties' 1996 Partnerships Article "to be part of the National Agreement." Award at 14. The first sentence of Section 2, provides, in pertinent part: "Administration and Union representatives will bargain in good faith, including bargaining on issues which may fall under § 7106(b)(1), using interest-based bargaining . . . ." (emphasis added). Id. at 6. The Arbitrator found that the Partnerships Agreement provided that if the NPC did not accept an issue for consideration, resolution of that issue would be "handled under collective bargaining procedures." Id. at 16. The Arbitrator therefore concluded that the Partnerships Article "has expressed the intent to bargain on 7106(b)(1) matters." [n9]  Id. at 14. [ v55 p1069 ]

      The Agency argues that the interpretation of the parties' agreement regarding the scope of bargaining for 7106 (b)(1) matters must be based on the enforceability of E.O. 12,871. Exceptions at 11. The Arbitrator found, however, that "[t]he plain words of the [NPA] unequivocally state the opposite and not only is there no claim of past practice to the contrary, there is unrebutted testimony of prior dealings on (b)(1) matters." Award at 14.

      In Department of Commerce II, we stated that "Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects." 54 FLRA at 387. In that case, however, we also made clear that "[o]ur decision does not address, and should not be read to call into question, the enforceability of agreements to bargain over Section 7106(b)(1) subjects." Id. at n.27. Here, as the Arbitrator determined, the parties agreed to bargain over (b)(1) matters. The Authority has found that a contract proposal requiring a party to engage in bargaining over section 7106(b)(1) matters constitutes a proposal negotiable at the election of the agency under section 7106(b)(1). See National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Eastern Region, Virginia Beach, Virginia, 55 FLRA No. 161 (1999). As noted, a contract provision regarding a matter permissively negotiable under section 7106(b)(1) is enforceable by an arbitrator. See DOL-OSHA, 34 FLRA at 577. As the Arbitrator here was simply enforcing such a contractual election to bargain, the award is not contrary to law.

      Because our review of the record yields no other basis on which to conclude that the Arbitrator misapplied section 7106 of the Statute, we conclude that the award is not deficient under section 7106 of the Statute. Accordingly, we deny the Agency's exception.

B.     The Award Draws its Essence From the Collective Bargaining Agreement

      In reviewing challenges to the Arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See DOL-OSHA, 34 FLRA at 575. The Authority and the courts defer to the arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576; Paperworkers v. Misco, Inc., 484 U.S. at 38 (as long as an arbitrator is even arguably construing the collective bargaining agreement, that a court is convinced that the arbitrator committed serious error does not suffice to find the award deficient).

      The Agency asserts that the Arbitrator misinterpreted the National Agreement resulting in a conclusion that the Partnerships Article represented a contractual obligation to follow the procedures set out in the NPA. Based upon a review of the Arbitrator's determination on this matter, the Agency's exception provides no basis for finding the award deficient.

      In this case, the Arbitrator's direction to bargain is based upon his interpretation of the parties' agreement. The Arbitrator stated:

Rights under Executive Order 12871 have been decided by the FLRA. In POPA the FLRA decided that the President did not make an election to negotiate on 7106(b)(1) matters. In this case,. . . SSA clearly elected to negotiate on (b)(1) matters. Also . . ., the unenforceability of the Executive Order does not preclude the enforceability of agreements of the parties to negotiate on (b)(1) matters such as in this case. Therefore, what is left to be determined is what was SSA, in its management role on the NPC, obligated to do. [n10] 

Award at 15.

      The Arbitrator considered and applied the language of the parties' agreements and concluded that the Agency elected to bargain over these matters. Id. at 14, 16. The Agency fails to demonstrate that such an interpretation of the parties' agreement disregards the agreement or is implausible, irrational, or unfounded. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1355 (1998); National Treasury Employees Union, Chapter 260 and Federal Deposit Insurance Corporation, Southwest Field Office, Addi- [ v55 p1070 ] son, Texas,, 52 FLRA 1533, 1537-38 (1997); American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA 1518, 1521 (1997). Therefore, the Agency's exception provides no basis for overturning the award.

      We note that the Agency's contrary to law exception also appears to challenge the Arbitrator's determination that the grievance was arbitrable in the first instance. [n11]  In this regard, we note that the Arbitrator found that the grievance was arbitrable, reasoning that since the 1996 Partnership Article was "embodied in the National Agreement . . .," it was intended to be part of the National Agreement and, therefore, subject to the negotiated grievance procedure. Award at 12.

      We construe the Agency's challenge to this determination as an assertion that the award fails to draw its essence from the master labor agreement. The Agency, however, fails to demonstrate that such an interpretation of the master labor agreement conflicts with the Authority's precedent, noted supra, regarding the standard by which such interpretations are analyzed. Accordingly, as the Agency has provided no basis for finding deficient the Arbitrator's determination that the Union was entitled to file the grievance, we deny the exception.

C.     The Award Does Not Require the Parties to Engage in Union-Initiated Mid-Term Bargaining

      The Agency relies on Social Security Administration v. FLRA, 956 F.2d 1280 for the assertion that the Arbitrator's award improperly requires it to engage in union-initiated mid-term bargaining. [n12]  "Union-initiated mid-term bargaining" as examined by that case pertains to a union-initiated demand to bargain, during the term of a collective bargaining agreement, that is not impact and implementation bargaining (5 U.S.C. § 7106(b)(2) and (3)) and is not otherwise permitted by that collective bargaining agreement.

      In the present matter, however, the Arbitrator found that the Agency had contractually committed itself to engage in bargaining over the matter now in dispute. As a result, the factual circumstances here do not present the type of union-initiated mid-term bargaining that the Agency alleges it is being forced to engage in, regardless of the legal status of such bargaining. Accordingly, this exception provides no basis for overturning the award. Consequently, we deny the exception.

D.     The Award is Not Based on a Nonfact

      The Agency argues that the Arbitrator's interpretation of the parties' agreement was based upon a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

      Here, the alleged nonfact pertains to the meaning and requirements imposed by the NPA provision. The Arbitrator's conclusion resulted from his application of his interpretation of the parties' agreement, and thus cannot be challenged as a nonfact. See National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, 54 FLRA 1354, 1361-62 (1998). Therefore, we deny the Agency's nonfact exception.

E.     The Award Does Not Violate Management's Rights Under Section 7106 of the Statute

      The Agency claims that the Arbitrator's award violates its management rights under Section 7106(a) of the Statute. For reasons fully set forth in NAGE and VA Lexington, 51 FLRA at 392-93, section 7106(b)(1) is an exception to section 7106(a) such that bargaining over matters encompassed by section 7106(b)(1) is permitted notwithstanding that such matters also affect rights under section 7106(a).

      Because we find that the Arbitrator's conclusion, that the Agency elected to bargain 7106(b)(1) matters, is not deficient, we do not determine whether the provisions affect a right under section 7106(a). Accordingly, we deny the exception. [ v55 p1071 ]

F.     The Arbitrator Did Not Exceed His Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 5l FLRA 305, 307-08 (1995).

      In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 162 (1995). In this case, the parties did not stipulate the issues to be resolved by the Arbitrator. Award at 2. Therefore, the arbitrator's formulation of the issues must be afforded substantial deference.

      The Agency alleges that the Arbitrator failed to resolve the issues he formulated. The Agency also alleges that the remedy was not directly related to the issue before the Arbitrator, because the workgroup was created before the parties reached agreement on the Partnership Agreement. The Arbitrator framed the issue, on the merits, to be:

whether "[the Agency's] actions with respect to Recommendation #3 of the MIIPT . . . violated the National Agreement, the NPA, the July 1994 Charter for the MIIPT, or E.O. 12871."

Award at 2. The Arbitrator's decision, on the merits, was:

"to return Recommendation #3 of the MIIPT back to the NPC. The parties are further ordered to make every effort to develop an ADR process for the purpose of trying to come to an agreement on the adoption of Recommendation #3 or some variant thereof, and to then apply such procedure - if they adopt one - to Recommendation #3." [n13] 

Award at 18. The Arbitrator also directed the parties "to have their efforts to design an ADR process . . . conducted with the services of a facilitator . . .," recognizing the NPC had used facilitators in the past, the parties may experience difficulty in establishing an ADR process, and that certain perceptions among the parties may "impede a successful resolution." Id.

      Nothing in the Arbitrator's decision indicates that the Arbitrator broadened the scope of the issue he was charged with resolving by reaching a conclusion that provides the appropriate remedy for resolving one recommendation within the context of the partnership agreement. The Arbitrator did not generalize his remedy beyond the recommendation at issue, nor did he generalize the bargaining relationship of the parties beyond the scope of the NPC. Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

SSA/AFGE National Partnership Agreement, dated June 22, 1994, provides, in pertinent part:

This agreement is jointly entered into by and between the [SSA] and [AFGE], for the purpose of establishing a full partnership agreement in the spirit of Executive Order 12,871, Labor-Management Partnerships.

PURPOSE

The purpose of the [NPC] is to design, implement and maintain within [SSA] a cooperative constructive working relationship between labor and management to identify problems and craft solutions. To that end, the partners will make the investment necessary to establish an atmosphere of mutual respect and trust in accomplishing the Agency's mission. This includes open and honest communication with a view toward recognizing and addressing the interests of the partners.

OBJECTIVES

[T]he partners agree to the following objectives that are in the spirit of the President's Executive Order 12,871.

. . . .

(2)     Ensure implementation of the partnership concepts which includes: [ v55 p1072 ]

(d)     Achieve consensus about the nature of the problems and their integrative solutions whenever possible in a time-limited manner
(g)     Forwarding recommendations to the Commissioner or making specific decisions when delegated authority to do so by the Commissioner

(6)     Identification of the method of alternative dispute resolutions for an issue at the onset in the event that no agreement is reached.

(8)     Ensure full implementation of the Executive Order 12871 over all 7106(b)(1) issues, whether at the union's request or as the result of proposed Agency action, immediately upon signing of this agreement.

. . . .

NPC OPERATION PROCESS/PROCEDURES

An issue can be proposed for NPC consideration by either the union or management.

Whether or not to accept and then jointly decide an issue within the partnership agreement will require a joint consensus decision at the outset.

When an issue is accepted for resolution by Partnership Council members, they will first agree upon a time deadline and an appropriate alternative dispute-resolution (ADR) process for that issue, in the event no agreement is reached, refer to Appendix A.

Issues that have been accepted for resolution will be discussed in good faith, using interest-based discussions in the search for an integrated solution that will be based on the legitimate interests of all the parties. Every effort will be made to reach a consensual agreement within the agreed-upon timeframe, and to avoid framing the issue into a rights- based bargaining dispute.

. . . .

APPENDIX A

The parties agree that every effort should be made to avoid disputes over whether a proposal is non-negotiable because it conflicts with management or union rights. Rather the parties shall focus on the intent of the proposal and on ways to reformulate it in a manner that does not result in conflict.

Initially, issues will be accepted under one of three categories: retained-rights issues, regular issues and test issues.

If the Partners do not wish to accept an issue for consideration, these matters will be handled under collective bargaining procedures using interest based techniques.

a.     Retained-Rights Issues:

Retained rights are management and union statutory and contractual rights. These issues will be fully explored and discussed in the hope of reaching a consensual, integrative recommendation to the presenting party-- management or union. However, the final decision as to whether or not to fully implement the Partnership decision(s) remains with the presenting party. In the event a decision cannot be reached within the agreed timeframe, there will be no further action by the Council.

b.     Regular Issues:

Regular issues are statutory rights including 7106(b)(1). These issues, proposed by any party to the NPC, will proceed within the accepted time deadline to a consensual, integrative agreement. If no agreement is reached, the previous agreed-upon ADR process will be initiated.

c.     Test Issues:

Test issues are defined as mid-term bargaining issues. For the interim period, it is agreed that the Union may raise such issues for consideration. It is agreed to test at least two (2) such issues. The process, timeframes and evaluation for the test will be defined by a joint union/management team. Upon completion of the second test the Partnership will timely decide how to proceed on such issues.

Partnerships Article, within the AFGE/SSA National Agreement, dated March 5, 1996, provides, in pertinent part:

Partnerships

Section 1.     Introduction

The parties recognize that a new relationship between labor and management as partners is essential for transforming the Social Security Administration into an agency that works more efficiently and effectively and better serves customer needs. This partnership involves the open sharing of information at the earliest pre-decisional stage, thereby engendering mutual trust and respect to better serve the agency's mission.

Section 2.     Principles [ v55 p1073 ]

Administration and Union representatives will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1), using interest-based bargaining (IBB) with the objective of reaching agreement. Every effort shall be made to reach agreements that address the interests of both parties. The procedures for implementing IBB, including providing necessary training and facilitation, and use of alternate dispute resolution procedures, will be developed by the National Partnership Council.

Section 3.     Partnership Councils

G.     The parties have established a Partnership Council at the Agency level. The existence of an Agency level council will not preclude the establishment of lower level councils where mutually agreed to by the parties.
H.     Partnership Councils shall include an equal number of Administration and Union appointed members. The membership of the National Partnership Council has previously been determined by the parties.
I.     Councils shall abide by the general principles set forth above.
. . . .

Section 4.     Other

To the extent that no conflict exists, this article does not supersede the SSA/AFGE Memorandum of Understanding of June 22, 1994.

Executive Order 12,871, Labor-Management Partnerships, dated October 1, 1993, provides, in pertinent part:

Section 2.     Implementation of Labor-Management Partnerships Throughout the Executive Branch

The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:
a.     Create labor-management partnerships by forming labor-management committees or councils at appropriate levels, or adapting existing councils . . . to help reform Government;
b.     Negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same;
. . . .

Section 3.     No Administrative or Judicial Review

This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

5 U.S.C. 7106, provides, in pertinent part:

a.     Subject to subsection (b) of this section, nothing in this Agreement shall affect the authority of any management official of any agency-
(1)     to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and
(2)     in accordance with applicable laws-
(A)     to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grad or pay, or take other disciplinary action against such employees;
(B)     to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C)     with respect to filling positions, to make selections for appointments from-
(i)     among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D)     to take whatever actions may be necessary to carry out the agency mission during emergencies.
(b)     Nothing in this section shall preclude any agency and any labor organization from negotiating-
(1)     at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work . . . .





Footnote # 1 for 55 FLRA No. 173 -

   See Appendix for pertinent provisions of the 1994 NPA, E.O. 12,871, and the Partnerships Article in the parties' National Agreement.


Footnote # 2 for 55 FLRA No. 173 -

   According to the Agency, the role of the MIIPT was to deal with the issue of the relationship between the way the Agency allocates staff and the issue of the integrity of the data. The MIIPT concluded that an alternative means of allocating staff should be considered. Transcript at 260. The Agency distinguished the role of the SMW as looking specifically at the MIIPT's conclusion and whether there was a viable alternative to current methodology which employs, in part, the data from the current work measurement system. Id.


Footnote # 3 for 55 FLRA No. 173 -

   The January 7, 1997, NPC minutes reflect the parties' positions as follows:

A[n] [Agency] workgroup has been established to develop and recommend to [the Deputy Commissioner] an alternative method for allocating staff to the field. AFGE does not agree with management as to how the group was established, the composition of the group, and with the workgroup being a recommending rather than a decision making body. The Union contends that no consensus exists for recommendation #3 of the MI [MIIP] Team report which stated that SSA will develop an alternative to the current process for allocating staff resources to the field. The report called for a joint workgroup to develop and recommend alternatives. The Union feels that since no consensus exists on this issue, alternative dispute resolution should be employed. Management did not agree with the Union's position on this issue and asserted that there was consensus on this approach [of a workgroup]. Accordingly, management sees no need for an alternative dispute resolution.

Award at 7-8.


Footnote # 4 for 55 FLRA No. 173 -

   See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, FLRA case numbers WA-CA-60600 and DE-CA-70354, currently pending before the Authority.


Footnote # 5 for 55 FLRA No. 173 -

   The Agency asserted several arbitrability challenges before the Arbitrator. In its subsequent exceptions, however, the Agency limited those assertions to arguing a failure of the award to draw its essence from the parties' agreement, because the negotiated grievance procedure applies only to alleged breaches of the Partnerships Article and the National Agreement -- and no breach of the Partnerships Article or the National Agreement is at issue here. Award at 12; Exceptions at 21-23.


Footnote # 6 for 55 FLRA No. 173 -

   Appendix A of the NPA also provides for two other types of issues: "retained-rights" issues, for which "there will be no further action by the [NPC];" and "test" issues, including midterm bargaining issues, which the Arbitrator did not find relevant to this case. Award at 16. See Appendix for the pertinent provisions of NPA, Appendix A.


Footnote # 7 for 55 FLRA No. 173 -

   See United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 38 (1987) (Paperworkers v. Misco, Inc.); Naval Station Mare Island and International Association of Firemen, Local F-48, 28 FLRA 1057, 1059 (1987); Veterans Administration Hospital, Perry Point, Maryland and American Federation of Government Employees, Local 331, 3 FLRA 236, 237 (1980); and Federal Aviation Science and Technological Association and Federal Aviation Administration, Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 680, 681 (1980). Opposition at 11-12.


Footnote # 8 for 55 FLRA No. 173 -

   See Appendix for pertinent language of 5 U.S.C. § 7106.


Footnote # 9 for 55 FLRA No. 173 -

   Although the meaning and application of this same Partnerships Article was at issue in the Union's two ULP charges against the Agency (see supra, note 4), in those cases the ALJ examined only the question of whether the Agency was acting pursuant to a "reasonable interpretation" of that provision, the standard to be applied when determining whether a party's actions constitute a repudiation of an agreement. See Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 51 FLRA 858, 862-63 (1996).


Footnote # 10 for 55 FLRA No. 173 -

   The Arbitrator refers to Department of Commerce II as POPA.


Footnote # 11 for 55 FLRA No. 173 -

   See supra, note 5.


Footnote # 12 for 55 FLRA No. 173 -

   In National Federation of Federal Employees, Local 1309 v. Department of the Interior, 119 S. Ct. 1003, 1011 (1999), the Supreme Court vacated the Fourth Circuit's decision holding that the Statute did not impose a duty to bargain midterm. The Court remanded to the Authority the issue of whether the Statute itself imposes a duty to bargain during the term of an existing labor contract. Id. The matter is currently pending.


Footnote # 13 for 55 FLRA No. 173 -

   The "Objectives" portion of the NPA, provides:

In order to achieve this purpose, the partners agree to the following objectives that are in the spirit of the President's Executive Order 12,871.

Section 6 provides:

Identification of the method of alternative dispute resolutions for an issue at the o