23:0891(109)CA - HHS, SSA and SSA Field Operations, New York Region and NCSSFO Locals- Council 220, AFGE -- 1986 FLRAdec CA
[ v23 p891 ]
23:0891(109)CA
The decision of the Authority follows:
23 FLRA No. 109
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL
SECURITY ADMINISTRATION FIELD
OPERATIONS, NEW YORK REGION
Respondent
and
NATIONAL COUNCIL OF SOCIAL
SECURITY FIELD OPERATIONS
LOCALS-COUNCIL 220, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 2-CA-40444
2-CA-40516
2-CA-50037
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the General Counsel to the attached Decision of
the Administrative Law Judge. The consolidated complaint alleged that
by failing and refusing to convert Absent Without Leave (AWOL) time to
Leave Without Pay (LWOP) for four employees the Respondent failed to
comply with a final and binding arbitration award, in violation of
section 7116(a)(1) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute).
II. Background and Judge's Conclusion
The parties' National Agreement provided that an employee may, upon
written request, be granted LWOP to engage in certain union activities
and that such requests normally will be approved. When the requests for
LWOP of some employees were denied, and they were charged with AWOL or
forced to take annual leave, the Charging Party (the Union) grieved.
The Arbitrator found that the burden was on management to establish in
each instance that the work situation was not normal and that the
request therefore could not be granted. The Arbitrator further found
that the Respondent had created a restrictive policy of consistent
denial of employee requests for LWOP for union activities, after it had
already denied their requests for official time for such activities, and
that there was no justification for the Respondent's policy. The
Arbitrator concluded that the policy was violative of the parties'
collective bargaining agreement. The Arbitrator also concluded that the
Respondent's persistent denials of the requests of the employees in the
dispute before him were not justified by the workload situations in
their offices and that the denials were violative of the parties'
agreement. As his award, the Arbitrator directed the Respondent to act
on future LWOP requests in accordance with the Statute and with the
agreement. The Arbitrator ordered the Respondent to convert to LWOP all
the AWOL that had been charged, "provided however that should the Agency
prove to the Union's satisfaction that particular charges of AWOL . . .
were not properly subjects for Union LWOP, then such particular charges
need not be converted to LWOP."
The Respondent filed exceptions with the Authority to that part of
the Arbitrator's award concerning treatment of future requests for LWOP
by union officials. The Respondent did not except to that portion of
the award which ordered conversion of LWOP. The exceptions were denied
by the Authority as failing to establish that the award was in any way
deficient. The Union then requested the Respondent to comply with the
award by converting the AWOL time of the four employees in this unfair
labor practgice case to LWOP, as originally sought by the employees for
union activities and denied by the Respondent. The Respondent refused
to convert all of the AWOL time to LWOP. As to one of the employees,
the Respondent gave no reason for refusing to convert the AWOL time. As
to two of the employees, the Respondent refused essentially on the
ground that they had been found to be insubordinate. As to the fourth
employee, the Respondent did not respond to the Union's request. The
parties stipulated that the Respondent did not prove to the Union's
satisfaction that the instances in which the employees were charged with
AWOL time were not properly subjects for LWOP time for union activities.
The Judge found that the Arbitrator's award provided no specific
methodology for resolving disputes "in situations wherein the Union had
a legitimate basis for objecting to Respondent's stated reasons for
refusing to convert specific AWOL to LWOP." The Judge also found that
there was no basis for concluding that the award provided for ultimate
determination by the Union as to whether AWOL should be converted to
LWOP in specific situations. The Judge determined that the General
Counsel had the burden of establishing that no unusual workload
situation existed when the Respondent denied the employees' LWOP
requests and that the denial of the request was therefore unjustified.
The Judge concluded that the General Counsel did not meet that burden
and, therefore, dismissed the complaint.
III. Positions of the Parties
In exceptions to the Judge's Decision, the General Counsel takes
issue with the Judge for placing the burden of justification on the
General Counsel. Basically, the General Counsel argues that the
Arbitrator's award clearly granted the Union the right to accept or
reject the Respondent's explanations for refusing to convert any
particular AWOL or annual leave charge to LWOP. The basic arguments of
the Respondent in its brief to the Judge were adopted by the Judge in
his Decision.
IV. Analysis
We disagree with the Judge's dismissal of the complaint. The
Arbitrator ordered conversion of all AWOL to LWOP, unless the Respondent
could "prove to the Union's satisfaction" that the employees' LWOP
requests were not for union activities. The Respondent did not file
exceptions to this part of the award. The award was final and binding
on the Respondent. See Department of the Treasury, United States
Customs Service, New York Region, New York, New York, 21 FLRA No. 119
(1986). We disagree with the Judge's determination that the General
Counsel had a burden of proving that the Respondent's denial of the
original LWOP requests of each of the four employees in this case was
not justified in the specific work situations involved. The Arbitrator
specificallyly found that the Respondent's restrictive policy of
consistently denying employee requests for LWOP for union activities was
unjustified and violative of the parties' agreement. The Arbitrator
ordered conversion of all AWOL charged as a result of the Respondent's
improper denials of LWOP requests, specifically including the AWOL time
charged to three of the four employees in this case for "incorrect
denials of LWOP requests." The General Counsel's burden was to show
thatg the Respondent had failed and refused to comply with the
Arbitrator's award. That is, the General Counsel had to establish two
elements: (1) that the Respondent had refused to convert AWOL time to
LWOP where LWOP had been requested for union activities; and (2) that
the Respondent had failed to prove to the Union's satisfaction that the
employees' original requests for LWOP were not properly subjects for
LWOP for union activities. The record reflects that the General Counsel
established both elements. Accordingly, we find that the Respondent
failed to fully comply with the Arbitrator's award in violation of
section 71169a)(1) and (8) of the Statute.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision, the exceptions to that Decision, the positions of the
parties, and the entire record, and adopts the Judge's findings and
conclusions only to the extent consistent with this decision. We
conclude that the Respondent's failure to comply with a final and
binding Arbitrator's award constitutes a violation of section 7116(a)(1)
and (8) of the Statute and we shall order the Respondent to remedy the
violation.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Department of Health and Human Services, Social Security
Administration and Social Security Administration Field Operations, New
York Region shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement the June 11, 1983
arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
L. Eisenberg by failing and refusing to properly process Union requests
for the conversion of AWOl and forced annual leave to LWOP in accordance
with the award after it became final and binding.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the June 11, 1983 arbitration award issued in FMCS
Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
processing Union requests for the conversion of AWOL and forced annual
leave to LWOP in accordance with the award.
(b) Post at its facilities in the Department of Health and Human
Services, Social Security Administration, Field Operations, New York
Region, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Regional Commissioner, New York Region, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT fail or refuse to fully implement the June 11, 1983
arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
L. Eisenberg by failing or refusing to properly process Union requests
for the conversion of AWOL and forced annual leave to LWOP in accordance
with the award after it became final and binding.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the June 11, 1983 arbitration award issued in
FMCS Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
processing Union requests for the conversion of AWOL and forced annual
leave to LWOP in accordance with the award.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 2-CA-40444, 2-CA-40516, 2-CA-50037
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY
ADMINISTRATION, FIELD OPERATIONS, NEW YORK REGION
Respondent
and
NATIONAL COUNCIL OF SOCIAL SECURITY FIELD
OPERATIONS LOCALS -- COUNCIL 220, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
L. J. Clary, Esquire
For the Respondent
Allan W. Stadtmauer
For the General Counsel
Cecelia McCarthy, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The consolidated complaint, as amended at the hearing, alleged that
the Department of Health and Human Services, Social Security
Administration, and Social Security Administration, Field Operations,
New York Region (Respondent) committed unfair labor practices within the
meaning of Sections 7116(a)(1) and (8) of the Statute by failing and
refusing to comply with a final arbitration award issued on June 11,
1983, by Arbitrator Walter L. Eisenberg in FMCS File No. 82K/09368.
The following was alleged as a basis for failing and refusing to
comply with the mentioned arbitration award:
Case No. 2-CA-40444: On or about July 25, 1984, the Respondent
failed and refused to convert certain Absent Without Leave (AWOL) time
charged to bargaining unit employee Ralph de Juliis, to Leave Without
Pay (LWOP) time.
Case No. 2-CA-40516: On or about August 31, 1984, the Respondent
failed and refused to convert certain AWOL time charged to former
bargaining unit employees Joseph Higgins and Kirk Bigelow, respectively,
to LWOP time.
Case No. 2-CA-50037: On or about September 17, 1984, the Respondent
failed and refused to convert certain AWOL time charged to former
bargaining unit employee Mary Ostrowski, to LWOP time.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including a stipulation of facts, exhibits, arguments made
during the hearing, and briefs filed by the parties, I make the
following findings of fact, conclusions and recommendations.
Findings of Fact
1. At all times material herein, the Charging Party has been, and is
now, a labor organization within the meaning of Section 7103(a)(4) of
the Statute.
2a. At all times material herein, the Department of Health and Human
Services, Social Security Administration, has been, and is now, an
agency within the meaning of Section 7103(a)(3) of the Statute.
b. At all times material herein, Social Security Administration,
Field Operations, New York Region, located in New York, New York, has
been, and is now, a constituent entity within the Department of Health
and Human Services, Social Security Administration, and an agent acting
on its behalf.
c. At all times material herein, the Social Security Administration,
Passaic, New Jersey; New Brunswick, New Jersey; and Midtown New York
District Offices and North Harlem Branch Office have been, and are now,
constituent entities within the Department of Health and Human Services,
Social Security Administration, and agents acting on its behalf.
3a. At all times material herein, the American Federation of
Government Employees, AFL-CIO (AFGE or Union) has been, and is now, the
certified exclusive representative of a consolidated nationwide unit of
certain employees of Respondent, including all employees in the District
and Branch Offices of the Social Security Administration in the States
of New York and New Jersey, excluding all management personnel,
professional employees, federal employees engaged in personnel work in
other than a purely clerical capacity, guards and supervisors.
b. At all times material herein, AFGE has delegated to the Charging
Party authority to act as its representative for the purposes of
collective bargaining for certain of Respondent's employees, including
employees at Respondent's Passaic, New Jersey; New Brunswick, New
Jersey; and Midtown New York District Offices and North Harlem Branch
Office; and the Charging Party's delegation has been recognized by
Respondent.
4. At all times material herein, a National Agreement has existed
between the AFGE, and the Respondent. This agreement became effective
on June 11, 1982 (Jt. Exh. No. 12).
5. On or about June 11, 1983, Arbitrator Walter L. Eisenberg issued
an arbitration award in AFGE Local 3369 and DHHS, Social Security
Administration, FMCS File No. 82K/09368. The award, issued pursuant to
the negotiated grievance and arbitration procedure set out in the
National Agreement, involved the Respondent and AFGE Local 3369, and
related to the Respondent's processing of Union requests for LWOP under
the provisions of the National Agreement (Jt. Exh. No. 13).
6. On or about June 30, 1983, the Respondent filed exceptions to the
award issued by Arbitrator Eisenberg in FMCS File No. 82K/09368 (Jt.
Exh. No. 14). /1/
7. On or about April 20, 1984, the Authority denied the exceptions
filed by the Respondent in connection with Arbitrator Eisenberg's award
in FMCS File No. 82K/09368, and the award became final and binding (Jt.
Exh. No. 15).
8a. On or about June 25, 1984, the Charging Party by letter dated
June 25, 1984, requested that the Respondent comply with Paragraph 5 of
the final and binding award described aboved by converting certain AWOL
charged to unit employee Ralph de Juliis, to LWOP (Jt. Exh. No. 16).
b. The instances of AWOl cited in the June 25, 1984, letter were
originally sought by de Juliis as Union LWOP, but were denied.
c. On or about July 25, 1984, Respondent by its agents, did not
convert de Juliis' AWOL to LWOP (Jt. Exh. No. 20).
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the June 25, 1984
letter to the Respondent were not properly subjects of Union LWOP.
9a. On or about July 11, 1984 and July 20, 1984, the Charging Party,
by letters reflecting these dates, requested the Respondent to comply
with Paragraph 5 of the final and binding award described above by
converting certain AWOL charged to former unit employees Joseph Higgins
and Kirk Bigelow, respectively, to LWOP (Jt. Exh. Nos. 17, and 18 (a)).
b. The instances of AWOL cited in the July 11, 1984 and July 20,
1984 letters described above were originally sought by Higgins and
Bigelow, respectively, as Union LWOP but were denied except for the June
16, 17 and 23, 1982 requests of Bigelow and the June 22, 23, 24, 1982
requests of Higgins (Jt. Exh. Nos. 21 and 22). /2/
c. On or about August 31, 1984, Respondent, by its agents failed to
convert AWOL time for Joseph Higgins and Kirk Bigelow to LWOP (Jt. Exh.
Nos. 21 and 22).
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the July 11, 1984 and
July 20, 1984, letters transmitted to the Respondents on behalf of
Higgins and Bigelow, respectively were not properly subjects of Union
LWOP.
10a. On or about September 17, 1984, the Charging Party by letter
requested Respondent to comply with Paragraph 5 of the final and binding
award described above by converting certain AWOL charged to former unit
employee Mary Ostrowski to LWOP (Jt. Exh. No. 19).
b. The instances of AWOL cited in the September 17, 1984 letter
described above were originally sought by Ostrowski as Union LWOP, but
were denied except for the August 2, 1982 request.
c. At all times since on or about September 17, 1984, Respondent by
its agents has not converted Mary Ostrowski's AWOL to LWOP.
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the September 17, 1984
letter described above, were not properly subjects of Union LWOP.
11. Since on or about April 20, 1984, and at all times thereafter,
Respondent has not converted all AWOL time to Union LWOP as directed by
the June 11, 1983 award.
Discussion and Conclusions
Arbitrator Eisenberg's June 11, 1983 arbitration award arose out of a
contractual dispute concerning the interpretation of Article 31, Section
7-B of the National Agreement, the collective bargaining agreement
governing the labor relations of the Respondent and AFGE. This Section
provides:
Section 7 -- Leave Without Pay
. . . .
B. An employee may be granted leave without pay to engage in
union activities on the national, district or local level, to work
in programs sponsored by the Union or the AFL-CIO, upon written
request by the appropriate union office. Such requests will be
referred to the appropriate management official and will normally
be approved. Such employees shall continue to accrue benefits in
accordance with applicable OPM regulations. Leave without pay for
this purpose is limited to one (1) year, but may be extended or
renewed upon proper application.
In this arbitration proceeding the AFGE pressed a claim for less
restrictive grants of LWOP for Union officials engaged in tasks dealing
with labor-management relations. Arbitrator Eisenberg found in favor of
the Union, and upheld the Union's claim for a less restrictive
interpretation of the provision. He found that it related to LWOP
requested by a Union office for an employee to engage in Union
activities, and further that it "states unequivocally that such LWOP
requests by a Union 'will normally be approved.'" (Jt. Exh. No. 13 at
14-15).
The burden of justifying a denial was placed on management. That is,
management was required to make an explicit showing as to why a LWOP
request should not be granted "because of an identified non-normal
situation." (Jt. Exh. No. 13 at 15). He found that requests for LWOP
filed by de Juliis, Higgins and Bigelow had not been denied in
accordance with the collective bargaining agreement, and that the
District Offices which these Union officials were assigned to had not
"experienced workload situations beginning June 11, 1982 which justified
persistent denials of LWOP to those officials." (Jt. Exh. No. 13 at 17).
He reiterated specifically that "(t)he burden of proving the existence
of a work situation that is not normal is on the Agency." (Jt. Exh. No.
13 at 17). Arbitrary agency restriction of Union LWOP was found to be
violative of the National Agreement, and Respondent's practice of
delaying action on Union LWOP requests until 8:30 A.M. of the morning on
which the Union LWOP was to be used was condemned as tending to
"trivialize the involvement of Union officials in labor management
relations." (Jt. Exh. No. 13 at 19). He concluded:
In sum, I find that the record before me supports the Union's
complaintt that the Agency has created a restrictive special
policy for response to and consistent denial of requested LWOP
after it has denied a Union request for official time, and I find
that there is nothing in the National Agreement or in valid past
practice thereunder which can serve to justify such a policy. The
Agency's actions with reference to Union LWOP thus constitute
violations of the applicable provisions of the National Agreement.
(Jt. Exh. No. 3 at 20-21).
The award fashioned by the Arbitrator required the Respondent to:
1. Grant both long and short term LWOP to union officials
under "normal working conditions."
2. Grant or deny union LWOP promptly after it receives LWOP
requests. Advise the Union promptly of its response; and not
delay doing so until 8:30 A.M. on the date the leave is to be
used.
3. Deal with future LWOP requests in a manner consistent with
the Statute and the collective bargaining agreement.
4. Construe Article 31, Section 7-B of the June 11, 1982
National Agreement as "normally" requiring approval of Union LWOP
for Union officials for the purposes specified in this contractual
provision.
Paragraph 5 of the Award fashioned the following specific remedy:
(1) restore to Union LWOP, all charges to Union officials of
AWOL and annual leave which should have been granted as Union
LWOP; provided however, that should the Agency prove to the
Union's satisfaction that particular charges of AWOL and annual
leave were not properly subjects for Union LWOP, then such
particular charges need not be converted to LWOP;
2. change to Union LWOP all AWOL charges to Kirk Bigelow,
Joseph Higgins, and Ralph de Juliis for 'incorrect denials' of
LWOP; provided however, that should the Agency prove to the
Union's satisfaction that particular charges of AWOL against any
of these individuals were not properly subjects for Union LWOP
then such particular charges of AWOL need not be converted to
LWOP; and provided that any conversion of AWOL charges to LWOP
charges hereby required shall not be construed to constitute a
finding as to the conduct of any of these three employees in the
circumstances pertaining to any particular AWOL charge;
3. in the future when it undertakes to deny requested Union
LWOP, provide to the Union, in advance, a statement of the nature
of any 'exigency' said to be the basis for the denial, together
with the name and title of the management representative who is
declaring the departure from normal conditions or the exigency of
business; and
4. grant Union LWOP for longer than one day at a time, subject
to the conditions in Article 31, Section 7, B, of the National
Agreement, as construed by the terms of this Award.
It is clear from the record that the June 11, 1983 award contemplated
the Respondent's good faith cancellation of all AWOL which should have
been granted as Union LWOP under the terms of the award. It further
contemplated that in situations wherein the Respondent deemed conversion
inappropriate, conversion of such AWOL to LWOP would be excused if the
Agency proved to the Union's satisfaction that particular charges should
not be converted. This element of the decision in turn envisions that
the Union would not act arbitrarily in refusing to acknowledge in
appropriate cases that particular charges of AWOL should not be
converted. However, the decision itself does not specifically address
the issue of what action, if any, should be taken by the Respondent in
situations wherein the Union had a legitimate basis for objecting to
Respondent's stated reasons for refusing to convert specific AWOL to
LWOP. That is, the arbitrator's decision provides no specific
methodology for resolving such disputes, and does not relate to
identifiable instances wherein conversion of AWOL should occur under the
terms outlined in the award. Presumably, issues relating to questioned
determinations were to be made in grievance arbitration proceedings, or
in the course of unfair labor practice proceedings.
The award does indicate that any conversion of AWOL charges required
by the terms of the award "shall not be construed to constitute a
finding as to the conduct of (de Juliis, Higgins or Bigelow) in the
circumstances pertaining to any particular AWOL charge." The quoted
language suggests that the arbitrator envisioned Respondent's possible
conversion of AWOL to LWOP in some or all situations involving alleged
misconduct of these three employees, and further that the administrative
fact of conversion would have no evidentiary significance in related
disciplinary matters.
In contrast to the meaning of the award outlined, counsel for the
General Counsel argues that the Eisenberg award leaves to the Union the
ultimate determination as to whether an AWOL charge should be converted
to LWOP. There is no rational basis for drawing this conclusion from
the June 11, 1983 award, or any other documents in the record. This
argument would operate to negate entirely those elements of the award
requiring the Respondent to determine and then remedy prior incorrect
denials of LWOP.
Relieving the Respondent of responsibility to convert in situations
wherein the Union expressed satisfaction with a refusal to convert
merely points out the obvious. That is, that conversion in such
situations would be unnecessary and illogical. It may not be assumed
that the arbitrator intended the Union to have absolute discretion to
require the conversion of all AWOL time not converted by the Respondent
regardless of the relative merits of each individual request for LWOP.
Although, the language used in the decision could have made this point
clearer, the fact remains that this meaning necessarily follows from the
terms used in the award. /3/
The General Counsel's complaint rests entirely upon the theory that
the Respondent failed to convert AWOL time in accordance with demands
made upon the Respondent, and further that the Respondent failed to
prove to the Union's satisfaction that Respondent's refusal to convert
AWOL time was proper. As noted, the arbitration award did not provide
such a remedy. A showing of a failure to comply with Union demands, or
a showing of a failure to satisfy Union concerns, without more, would
not necessarily equal non-compliance with the arbitration award. The
General Counsel has the burden of establishing specifically that
Respondent's denial of LWOP fell within the purview of the June 11, 1983
award. That is, that no unusually pressing working conditions existed
to justify Respondent's refusal of LWOP. Such a showing is not
reflected in the record. /4/
The record reflects reliance upon a letter dated June 25, 1984
requesting the conversion of "all AWOL" time relating to de Juliis to
LWOP (Jt. Exh. No. 16). Neither the award, nor the record furnishes a
basis for such a demand. At most the award requires only the conversion
of AWOL time associated with LWOP reequests incorrectly denied prior to
the June 11, 1983 arbitration award. There was no showing that any
specific de Juliis request for LWOP was incorrectly denied within the
context of the arbitration award. The General Counsel's reliance upon
Respondent's July 25, 1984 refusal to comply with the de Juliis request
(Jt. Exh. No. 20), without more, would not suffice to establish a
failure to comply with the award.
Similarly, both Higgins and Bigelow demanded the conversion of all
AWOL charged to them (Jt. Exh. Nos. 17, 18(a), and 18(b)), and Ostrowski
demanded the conversion of all AWOL time charged to her (Jt. Exh. No.
19), without reference to the Respondent's obligation to utilize
criteria outlined in the June 11, 1983 arbitration award. A showing of
Respondent's refusal to comply with these three requestss, without more,
would not suffice to establish proof of non-compliance with the award.
Instead of establishing specific instances wherein AWOL was
incorrectly denied under the principles outlined in the award, the
prosecutive theory was made to rest on the erroneous premise that the
Respondent was under an obligation to convert all of the AWOL time
referred to in the Higgins, Bigelow and Ostrowski letters.
It is regrettably noted that elements of the record do in fact
suggest that the Respondent may not have followed the arbitrator's
instructions in each and every instance; however, on the basis of the
record presented it is not possible to make a finding concerning any
specific failure to convert AWOL time in accordance with principles
outlined in the award. Moreover, the complaint, resting entirely on the
broad demands for conversion reflected in the de Juliis, Higgins,
Bigelow and Ostrowski correspondence, and on Respondent's admitted
failure to satisfy the Union with a rationale for refusing to convert,
does not allege any specific instances of failure to convert in
accordance with the terms of the award. In view of the foregoing, and
since the record reflects no showing of specific non-compliance with the
award, it is determined that the consolidated complaint should be
dismissed. It is recommended that the Authority issue the following
Order pursuant to 5 C.F.R. Section 2423.29.
ORDER
IT IS HEREBY ORDERED, that the consolidated complaint in Case Nos.
2-CA-40444, 2-CA-40516, and 2-CA-50037, be, and it hereby is, dismissed.
/s/ LOUIS SCALZO
Administrative Law Judge
Dated: August 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The exceptions mistakenly refer to Arbitrator Eisenberg's award
as being dated June 4, 1983, rather than June 11, 1983 (Tr. 60-61).
(2) Jt. Exh. No. 22 reflects that Bigelow's LWOP requests for June
16, 18 and 23, 1982 were granted by the Respondent.
(3) Authority decisions have held that union proposals which would
operate to obligate an agency to grant an employee's request for LWOP
without any regard to the necessity for the employee's services during
the period covering the request would be inconsistent with management's
right pursuant to Section 7106(a)(2)(B) of the Statute "to assign work."
American Federation of Government Employees, AFL-CIO, Local 2263, 15
FLRA No. 126 (1984), 15 FLRA 580; American Federation of Government
Employees, AFL-CIO, Local 12, 18 FLRA No. 58 (1985), 18 FLRA 418.
Similarly, an arbitrator's award likewise may not interfere with the
exercise by an agency of its rights under Section 7106(a) of the
Statute. Veterans Administration, Lebanon, Pennsylvania, 11 FLRA No. 43
(1982), 11 FLRA 193; American Federation of Government Employees,
AFL-CIO, Local 12, supra. The record reflects no basis for concluding
that the June 11, 1983 arbitration award denied management's rights.
(4) The General Counsel is not helped by the stipulation that since
on or about April 20, 1984, and at all times thereafter, Respondent has
not converted all AWOL time to Union LWOP as directed by the
arbitrator's award. The award reflects that the arbitrator did not
require the conversion of all AWOL time to Union LWOP, and any other
meaning conveyed by the mentioned stipulation of fact is unclear at
best.