Social Security Administration, New York, New York (Agency) and American Federation of Government Employees, Local 3369 (Union)

[ v60 p301 ]

60 FLRA No. 66

SOCIAL SECURITY ADMINISTRATION
NEW YORK, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3369
(Union)

0-AR-3837

_____

DECISION

September 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator John E. Sands filed by the Agency under § 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.

      The Agency excepts to the Arbitrator's award ordering the Agency to pay local Union representatives travel and per diem expenses for representing the Union in connection with matters outside the local Union's jurisdiction. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      This case arose when the Agency's Regional Commissioner notified the Union that the Region would no longer follow the past practice of paying travel and per diem expenses for Union officials who engaged in representational activities on official time outside the Union's geographical area of jurisdiction. The Agency claimed that it was discontinuing the practice and, consistent with the parties' agreement, would engage in mid-term bargaining over the change.

      The Union filed a grievance alleging that the Agency's action was inconsistent with Article 30, Appendix F(K) (Section K) of the agreement. The Union argued that, since the past practice in question was specifically covered by that provision, it was not a matter that could be reopened under Article 1, Section 2 of the agreement. [n1]  The Union subsequently amended the grievance to allege that the Agency's action also constituted a repudiation of the parties' agreement and thus constituted an unfair labor practice under § 7116(a)(1) and (5) of the Statute. The Regional Commissioner denied the grievance on the ground that, as "no clear and specific language protected the past practice at issue for the term of the [agreement], the Region was free to seek to change it through mid-term bargaining[.]" Award at 9. The Union invoked arbitration on both issues. During the time that arbitration was pending, the Agency denied travel and per diem expenses to the local Union president for representing the Union on official time at an arbitration hearing outside the jurisdiction of the local and the Union requested a remedy from the Arbitrator for that particular Agency denial of travel and per diem expenses.

      Because the parties failed to stipulate as to the issues in the case, the Arbitrator, pursuant to the "default" provision of the agreement, stated the issues as follows:

A. Do the Grievance and Amendment to Grievance in evidence as Joint Exhibits 9 and 10 have merit?
B. If so in either case, what shall be the remedy?

Award at 1.

      The Arbitrator found that, prior to the negotiation of the parties' first collective bargaining agreement, a past practice existed whereby the Agency paid travel and per diem expenses for local Union officials in connection with representational activities on official time outside the local's geographical jurisdiction. This practice resulted from an arbitration award (the Simons award). See Dep't of Health and Human Services, SSA, 21 FLRA 120 (1986).

      In negotiating their first agreement, the parties accommodated the many existing past practices, including the travel and per diem expenses past practice, "by continuing the status quo in effect subject to the employer's acknowledged ability to initiate mid-term bargaining to change such practices as it desired[.] Id. at 2. According to the Arbitrator, the provisions preserving past practices (Article 1, Section 2) and providing for mid-term bargaining to change those practices [ v60 p302 ] (Article 4) in that first agreement have remained unchanged in all of the parties' subsequent agreements.

      The Arbitrator further found that, to resolve issues pertaining to the interpretation of the parties' first agreement, the parties negotiated a Memorandum of Understanding (MOU) which provided that, consistent with practices in existence on the date that agreement took effect, the Agency would continue to pay travel and per diem expenses for Union officials covered by such practices. [n2]  The Arbitrator also found that the Agency agreed to continue the MOU in effect by including Section K in subsequent term agreements. [n3] 

      The Arbitrator found that, on several prior occasions, the Agency denied travel and per diem expenses to local Union officials for representational activities on official time outside the jurisdiction of the local. According to the Arbitrator, the Agency's actions were the subject of two arbitration awards (the Haber award and the Light award) which found that, under the parties' agreement, and as required by past practice, the Agency was obligated to pay travel and per diem expenses to those Union officials. The Arbitrator quoted the Haber award, which noted that the practices that had been at issue in the Simons award were: (1) "preserved in Article 1, Section 2" of the parties' term agreement; (2) "iterated more specifically in item 3" of the MOU; and (3) "continued" in Section K. Award at 7, quoting Haber award at 9. The Arbitrator also quoted, with emphasis, the central finding of the Light award as follows: "The parties preserved the past practice of the Agency paying `travel expenses and per diem' to Union officials that [was] `in existence as of June 11, 1982.'" Award at 8 (emphasis in the award in this case), quoting Light award at 7.

      The Arbitrator noted that the parties stipulated to the fact that: (1) a local Union member who was a Union official had a "clear and unmistakable past practice" of being granted travel and per diem expenses; (2) the Regional Commissioner's notice to the Union is the first time the Agency has attempted to change the past practice; (3) Article 1, Section 2 has been in all the parties' term agreements; and (4) Article 30, Appendix F, Section K has remained the same in their last four term agreements. Award at 10.

      The Arbitrator found, first of all, that Article 1, Section 2 of the parties' agreement provides for mid-term changes only of those past practices that are not specifically covered by the agreement. He then found that Section K, by its terms, "expressly guarantees continuation" of travel and per diem payments that are specifically provided for by the agreement and past practices that are in effect on June 10, 1982. Id. at 12. Because the past practice of paying travel and per diem expenses had been in effect since 1980, the Arbitrator concluded that it: (1) was a past practice that was in effect on June 10, 1982 that was specifically preserved by Section K; and (2) is preserved "as an obligation of the parties' [agreement] that [Article 1, Section 2] does not subject to mid-term bargaining." Id.

      The Arbitrator next found that "the parties' bargaining history confirms [his] conclusion." Id. at 13. In this regard, the Arbitrator noted that: (1) the parties' first term agreement preserved previously existing past practices, subject to mid-term bargaining that, during the life of that agreement, did not occur; (2) the parties' MOU "expressly obligated" the Agency to preserve those past practices; and (3) Section K incorporated the obligation under the MOU into subsequent agreements. Although he found no ambiguity in the terms of the parties' current agreement, the Arbitrator stated that, if he had found such a lack of clarity, the bargaining history would have resolved the issue in favor of the Union. Id.

      Further, the Arbitrator found that the Simons, Haber, and Light awards support his conclusion. According to the Arbitrator, on previous occasions when the Agency had denied travel and per diem expenses to local Union officials for representational activities on official time outside the jurisdictional boundaries of the local, arbitrators had sustained grievances challenging the Agency's actions, finding those actions to be "violations of an express obligation of the parties'" agreement. Id. at 14.

      In addition, the Arbitrator found that the parties' negotiated grievance procedure covered violations of law, including violations of the unfair labor practice provisions of the Statute, and that he had jurisdiction to resolve the Union's unfair labor practice claim. Specifically, consistent with the test set forth in Department of the Air Force, Warner Robins Air Logistics Center, Robins AFB, Ga., 52 FLRA 225 (1996) (Robins AFB), the Arbitrator found that the Agency "unilaterally disavowed and repudiated an express term of the parties' [ v60 p303 ] [agreement,] notwithstanding that provision's clear and unambiguous terms, notwithstanding clear bargaining history establishing those terms, and notwithstanding three prior arbitration awards interpreting those terms in accordance with the [U]nion's position concerning their meaning." Id. at 16. The Arbitrator ruled that the Agency had committed a "clear and patent violation" of the agreement and an unfair labor practice under § 7116(a)(1) and (5) of the Statute. He also found, consistent with the Authority's Robins AFB test, that the violation "goes to the heart of the parties' agreement." In this regard, he found that "[b]y reneging on its obligation to pay administrative support (travel and per diem) to [U]nion officials engaging in representational activities, the Agency seeks to hobble the [U]nion's effectiveness as exclusive statutory representative of bargaining unit employees." Id. He concluded that the Agency had repudiated the parties' agreement.

      The Arbitrator rejected the Agency's argument that the issue of reimbursement of travel and per diem expenses for the local Union president for representational activities during the pendency of the grievance was outside the scope of the grievance and thus outside his jurisdiction. In this regard, he noted the Union's "broad demand for relief" and found that this demand "directly addresses the consequences of the Agency's unlawful action[.]" Id. at 17.

      As a remedy, the Arbitrator ordered the Agency to rescind the Regional Commissioner's action discontinuing the past practice of paying travel and per diem expenses. He also directed the Agency to pay travel and per diem expenses to any Union official who had been denied such payment subsequent to the Regional Commissioner's action. To remedy the unfair labor practice, the Arbitrator ordered the Agency to cease and desist from "unilaterally repudiating" its obligation under Section K. In addition, he ordered the Agency to post the notice attached to the award.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator's award fails to draw its essence from the parties' agreement. Specifically, the Agency argues that the Arbitrator's decision does not represent a plausible interpretation of Section K. In this regard, the Agency states that Section K requires the payment of travel and per diem expenses "in two discreet and independent circumstances: (1) where specifically covered in the agreement; and (2) consistent with past practices in effect on June 10, 1982." Exceptions at 8. According to the Agency, there is no evidence that payment of travel and per diem expenses for local Union representatives "to engage in non-local representational activities is specifically covered in the agreement." Id. at 8-9. Rather, such payment is a past practice in effect before June 10, 1982. By its terms, the Agency maintains, Article 1, Section 2, permitting changes in past practices through mid-contract bargaining, applies to any past practice that is not specifically covered by the agreement. The Agency claims since the past practice of travel and per diem expenses is not specifically covered by the agreement, it is subject to change by mid-contract bargaining under Article 1, Section 2. The Agency maintains that the Arbitrator's contrary interpretation is implausible, inconsistent with the evidence, and inconsistent with the express wording and purposes of the agreement.

      The Agency also contends that the award is contrary to law because the Arbitrator erred in applying the Authority's repudiation test. Specifically, the Agency maintains that, under the test, if an agency acts in accordance with a reasonable interpretation of an agreement provision, even if it is not the only reasonable interpretation, the agency's breach of the provision is not a clear and patent breach under the test. According to the Agency, evidence in the record demonstrates that Section K was not intended to "`freeze' the past practice concerning travel and per diem expenses or otherwise waive management['s] rights to negotiate changes to this practice mid-term." Id. at 7. The Agency maintains that it was therefore reasonable for it to assume it could bargain mid-term over discontinuance of that past practice. Moreover, the Agency asserts, the Haber and Light awards "both acknowledged that the Agency's obligation to pay travel and per diem expenses resulted not because of an obligation specifically covered by the parties' [agreement], but because of the existence of a past practice." Id. at 7-8. Finally, the Agency argues that a finding that it repudiated the agreement should not be based on the isolated instance of non-compliance involved in this case.

B.      Union's Opposition

      The Union maintains that the Agency's essence exception is "dismally off the mark" because the Arbitrator's award is "based solely on his careful and precise analysis" of the parties' agreement. Opposition at 6. According to the Union, the Arbitrator concluded that: (1) the mid-contract bargaining right under Article 1, Section 2 applies only to past practices that are not specifically provided for by the agreement; (2) Section K specifically provides that past practices in existence before June 10, 1982, remain in effect; and (3) the past practice regarding travel and per diem expenses existed [ v60 p304 ] prior to June 10, 1982. Consequently, the Union contends, the Arbitrator's conclusion that the past practice of paying travel and per diem expenses is specifically provided for in the parties' agreement is plausible and "based completely on the clear and unambiguous language" of Section K. Id. at 7. The Union asserts that the Arbitrator therefore properly concluded that: (1) the past practice was not one that was not specifically covered by the agreement; and (2) thus was not subject to Article 1, Section 2.

      As to the Agency's contrary to law exception, the Union maintains that the Agency's action in discontinuing the past practice of paying travel and per diem expenses constitutes a clear and patent breach of the parties' agreement. The Union contends, in this regard, that the Agency's action was not based on a reasonable interpretation of the parties' agreement. The Union argues that the Agency has not demonstrated that it was reasonable for it to conclude that the past practice was subject to Article 1, Section 2, and thus subject to discontinuance through mid-term bargaining. Moreover, the Union contends that the Agency's action was not an isolated instance of non-compliance because similar Agency actions were the subject of three prior arbitration decisions which rejected the Agency's rationale for such actions.

IV.     Analysis and Conclusions

A.      The Arbitrator's Award Does Not Fail to Draw its
          Essence from the Parties' Agreement

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 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. United States Dep't of Labor, (OSHA), 34 FLRA 573, 575 (1990).

      The Agency's exception contends that the Arbitrator's award does not represent a plausible interpretation of Article 1, Section 2 and Section K of the parties' agreement. Specifically, the Agency contends that the Arbitrator misreads the relationship between those provisions in finding that the past practice of paying travel and per diem expenses is not subject to the right of the Agency to change such practices consistent with its obligation to bargain mid-term.

      By its terms, however, Article 1, Section 2 provides for mid-term bargaining with respect to changes in past practices that are not specifically covered by the agreement. The Arbitrator found that Section K, by preserving the travel and per diem expenses past practice, specifically provided for that practice as a part of the agreement. As such, the Arbitrator concluded that the practice was not subject to the right of mid-term change through bargaining set forth in Article 1, Section 2. The Agency has not demonstrated that this is an implausible interpretation of the agreement. Nor has the Agency demonstrated that the award is deficient under any of the other elements of the essence test.

      Accordingly, we deny the Agency's essence exception.

B.      The Arbitrator's Award is Not Contrary to Law

      The Agency contends that the Arbitrator's award is contrary to law. As the Agency's exception concerns whether the award is contrary to law, the Authority's review is de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Agency challenges the Arbitrator's finding that it violated the Statute by repudiating the parties' agreement. The Authority has established a framework for analyzing an allegation of repudiation. That framework consists of two elements: (1) the nature and scope of the agreement allegedly breached (i.e., was the breach clear and patent); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement). See Robins AFB, 52 FLRA at 230-31. [n4]  The examination of either element may require an inquiry into the meaning of the agreement provision allegedly breached. Id. In this regard, the Authority has held that "[i]f the meaning of a particular agreement term is unclear and a party acts in accordance with a reasonable interpretation of that term, that action will not constitute a clear and patent breach of the terms of the agreement." Id. at 231. [ v60 p305 ] See also Dep't of the Air Force, 375th Mission Support Squadron, Scott AFB, Ill., 51 FLRA 858, 862-63 (1996).

      In terms of the Authority's framework, the Agency contends specifically that it did not commit a clear and patent breach of the agreement because it acted in accordance with a reasonable interpretation of the agreement. However, the Agency has not demonstrated that the provisions of the agreement addressed by the Arbitrator are sufficiently ambiguous so as to give room for a reasonable differing interpretation.

      The Arbitrator found that: (1) the Agency's right to unilaterally change a past practice, subject to fulfilling its bargaining obligation under the Statute, under Article 1, Section 2, applied only to those past practices that were not specifically covered by the parties' agreement; and (2) the travel and per diem expenses past practice was not such a practice because it is specifically preserved by Section K. The phrase "not specifically covered" is clear and unambiguous. Nor is there any ambiguity in the effect of Section K in preserving the past practice in dispute. The Arbitrator correctly rejected the Agency's rationale for its action and properly determined, under the Authority's framework, that the Agency repudiated the agreement by failing to comply with Section K.

      Accordingly, we deny the Agency's contrary to law exception.

V.      Decision

      The exceptions are denied.


APPENDIX

1. Article 1, Section 2 of the parties' agreement provides as follows:

Article 1
Governing Laws and Regulations

. . . .
Section 2--Past Practices
It is agreed and understood that any prior benefits and practices and understandings which were in effect on the effective date of this Agreement at any level (national, council, regional and local), and which are not specifically covered by this Agreement do not detract from it shall not be changed except in accordance with 5 U.S.C. 71.

2. Article 30, Appendix F, Section K of the parties' agreement provides as follows:

Article 30
Official Time

. . . .

Appendix F
Official Time and Labor Relations in Field Offices

. . . .
K. Any payment of travel and per diem will be limited to that which is specifically provided for by this agreement, and past practices in effect on June 10, 1982.

3. The parties' MOU provides, in relevant part, as follows:

3. Consistent with those past practices in existence as of June 11, 1982, management will (a) continue to pay travel expenses and per diem, and (b) continue to allow official time for travel to union representatives covered by such practices. . . . Additionally, management agrees that the union is entitled by statute to official time for travel in connection with negotiations.

4. Article 7, Section 2 of the parties' agreement provides as follows:

Article 7
Duration of Agreement

. . . .
Section 2--Reopener
Negotiations during the term of this Agreement to add to, amend, or modify this Agreement may be conducted only by mutual consent of the parties.



Footnote # 1 for 60 FLRA No. 66 - Authority's Decision

   Section K and Article 1, Section 2 of the parties' agreement are set forth in the Appendix to this decision.


Footnote # 2 for 60 FLRA No. 66 - Authority's Decision

   The relevant text of the MOU is set forth in the Appendix to this decision.


Footnote # 3 for 60 FLRA No. 66 - Authority's Decision

   The Arbitrator noted testimony by a Union witness that Section K was understood by the parties to "freeze" the practice for the length of the agreement, unless both parties agreed to re-open the matter mid-contract under Article 7, Section 2, which is set forth in the Appendix to this decision. He also noted that an Agency witness testified that there was no such understanding and that Agency management had always believed that the matter would be subject to mid-term bargaining.


Footnote # 4