09:0161(22)AR - AFGE Council, San Francisco Region and HHS, SSA -- 1982 FLRAdec AR

 9 FLRA No. 22
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 COUNCIL, SAN FRANCISCO
 REGION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION
 Agency
 
                                            Case No. 0-AR-245
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE ARBITRATION
 AWARD AND SUPPLEMENTAL DECISION OF ARBITRATOR ROBERT D. STEINBERG 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 RULES AND REGULATIONS.  THE AGENCY DID NOT FILE AN
 OPPOSITION.  FOR THE REASONS THAT FOLLOW, THE AUTHORITY HAS NO
 JURISDICTION TO REVIEW THE UNION'S EXCEPTIONS.
 
    SECTION 7122(A) OF THE STATUTE EMPOWERS THE AUTHORITY TO REVIEW
 EXCEPTIONS TO ARBITRATION AWARDS AND PERTINENTLY PROVIDES THAT "(E)ITHER
 PARTY TO ARBITRATION UNDER (THE STATUTE) MAY FILE WITH THE AUTHORITY AN
 EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION." IN
 ACCORDANCE WITH THIS PROVISION, THE AUTHORITY IS CONSEQUENTLY ONLY
 EMPOWERED TO REVIEW EXCEPTIONS TO ARBITRATION AWARDS PURSUANT TO AN
 ARBITRATION UNDER THE PROVINCE OF THE STATUTE.  HOWEVER, IT IS APPARENT
 FROM THE RECORD BEFORE THE AUTHORITY THAT THE ARBITRATION IN THIS CASE
 WAS NOT AN "ARBITRATION UNDER (THE STATUTE)" WITHIN THE MEANING OF
 SECTION 7122(A).
 
    IN TERMS OF THIS CASE, THE PROCEDURES OF SECTION 7122(A) UNDER WHICH
 A PARTY MAY OBTAIN REVIEW BY THE AUTHORITY OF AN ARBITRATOR'S AWARD
 WOULD APPLY ONLY TO AN ARBITRATION AWARD RENDERED IN A GRIEVANCE
 PROCEEDING UNDER A NEGOTIATED GRIEVANCE PROCEDURE.  /1/ THUS, THE
 ARBITRATION AWARD MUST RESULT FROM A GRIEVANCE PROCEEDING UNDER SECTION
 7121 OF THE STATUTE OR, WITH RESPECT TO PREEXISTING AGREEMENTS CONTINUED
 UNDER SECTION 7135 OF THE STATUTE, THE AWARD MUST RESULT FROM A
 GRIEVANCE PROCEEDING PURSUANT TO A GRIEVANCE PROCEDURE NEGOTIATED UNDER
 SECTION 13 OF E.O. 11491.  HOWEVER, THE ARBITRATOR'S AWARD IN THIS CASE
 WAS NOT RENDERED AS THE RESULT OF SUCH A PROCEEDING.  THIS PROCEEDING
 WAS AFFORDED BY ARTICLE 26, SECTION I OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT WHICH PROVIDES THAT THE ARBITRATION PROCEDURES OF
 THE AGREEMENT "MAY BE UTILIZED TO ARBITRATE ADVERSE ACTIONS, IN LIEU OF
 (AN AGENCY) HEARING, EXCEPT THAT ANY DECISION SHALL BE ADVISORY IN
 NATURE TO THE DECIDING OFFICIAL AND RECOMMENDATIONS SHALL BE CONSIDERED
 IN ACCORDANCE WITH APPLICABLE RULES AND REGULATIONS." CONSEQUENTLY, THE
 ARBITRATION IN THIS CASE WAS WITHIN THE PURVIEW OF STATUTORY AND
 REGULATORY PROVISIONS PERTAINING TO AN EMPLOYEE'S RIGHT TO ANSWER A
 NOTICE OF A PROPOSED ADVERSE ACTION.  THOSE PROVISIONS PERMIT A HEARING
 AS PART OF THE REPLY STAGE PRIOR TO THE FINAL AGENCY DECISION ON THE
 PROPOSED ACTION.  /2/ UNDER THIS AUTHORITY, THE AGENCY IN THIS CASE HAS
 AGREED IN ITS COLLECTIVE BARGAINING AGREEMENT TO PROVIDE EMPLOYEES THE
 ALTERNATIVE OF UTILIZING AN ARBITRATOR, RATHER THAN AN AGENCY HEARING
 OFFICER, FOR PURPOSES OF THE HEARING ON THE PROPOSED ACTION AND FOR
 PURPOSES OF MAKING RECOMMENDATIONS TO THE DECIDING OFFICIAL PRIOR TO THE
 FINAL AGENCY DECISION.  IN ADDITION, AND AS EMPHASIZED BY THE ARBITRATOR
 IN HIS AWARD, THERE HAS BEEN NO FINAL DECISION TO TAKE AN ADVERSE
 ACTION.  RATHER, PURSUANT TO THIS PROCEEDING ANY ADVERSE ACTION AWAITS
 THE DECISION OF THE DECIDING OFFICIAL UPON CONSIDERATION OF THE REPORT
 AND RECOMMENDATIONS OF THE ARBITRATOR.  THEREFORE, BY FUNCTIONING AS AN
 ADVISORY HEARING PROCEDURE IN THE STATUTORY AND REGULATORY PROCESS OF
 REACHING A FINAL AGENCY DECISION ON A PROPOSED ADVERSE ACTION, SUCH AN
 ARBITRATION IS CLEARLY SEPARATE AND DISTINCT FROM THE GRIEVANCE OR
 RIGHTS ARBITRATION PROCESS PROVIDED FOR BY SECTION 7121 OF THE STATUTE
 OR CONTINUED BY SECTION 7135 OF THE STATUTE, WHICH PROCESS NORMALLY
 WOULD NOT BE INITIATED IN THESE OR ANALOGOUS MATTERS UNTIL A FINAL
 AGENCY DECISION HAS AFFECTED AN EMPLOYEE.
 
    CONSEQUENTLY, THE ARBITRATION IN THIS CASE WAS NOT UNDER THE PROVINCE
 OF THE STATUTE, AND THUS THERE IS NO BASIS UNDER THE STATUTE FOR THE
 AUTHORITY TO REVIEW EXCEPTIONS TO AN ARBITRATION AWARD PURSUANT TO AN
 ARBITRATION OF THIS SORT.  ACCORDINGLY, AND APART FROM OTHER
 CONSIDERATIONS, THE UNION'S EXCEPTIONS TO THE ARBITRATOR'S AWARD AND
 SUPPLEMENTAL DECISION ARE DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE IN
 EXPLAINING THE PROVISIONS FOR REVIEW OF ARBITRATION AWARDS WHICH WERE
 SUBSTANTIALLY ENACTED AND SIGNED ONTO LAW AS SECTION 7122(A) OF THE
 STATUTE STATED AS FOLLOWS:
 
    SECTION 7122 SETS FORTH THE PROCEDURES UNDER WHICH A PARTY MAY OBTAIN
 REVIEW BY THE
 
    AUTHORITY OF AN ARBITRATOR'S AWARD.  THE PROCEDURES APPLY IN THE CASE
 OF EITHER AN AWARD IN AN
 
    ARBITRATION RESULTING FROM AN IMPASSE PROCEEDING UNDER SECTION
 7119(B), AS ADDED BY THE BILL,
 
    OR AN AWARD IN A GRIEVANCE PROCEEDING UNDER SECTION 7121, AS ADDED BY
 THE BILL.
 
    H. REP. NO. 95-1403, 95TH CONG., 2D SESS. 56 (1978).
 
    /2/ AT ALL TIMES RELEVANT TO THIS CASE, 5 U.S.C. CHAPTER 75 AND 5 CFR
 PART 752 HAVE PERMITTED AGENCIES TO AFFORD EMPLOYEES A HEARING IN THIS
 RESPECT.