26:0670(82)AR - AFGE, National Council of SSA Field Operations Locals and SSA -- 1987 FLRAdec AR

[ v26 p670 ]
The decision of the Authority follows:

 26 FLRA No. 82
                                            Case No. 0-AR-1288
    I.  Statement of the Case
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jack Warshaw 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 Rules and Regulations.
    II.  Background and Arbitrator's Award
    The dispute in this matter arose as a result of a grievance which was
 filed and submitted to arbitration concerning the interpretation and
 application of Item 5 of the parties' July 1, 1983 Memorandum of
 Agreement (MOA) on Teleservice Observation.  The MOA was negotiated to
 establish guidelines for the Agency's implementation of Service
 Observation by which teleservice center (TSC) telephone calls were to be
 monitored.  Item 5 of the MOA provides:
          Employees will be notified that their calls are subject to
       Service Observation.  Management will ordinarily notify employees
       that calls will be subject to Service Observation during their
       sample period.
    In the arbitration proceeding, the Union argued that the intent of
 Item 5 was to require the Agency to provide employees with advance
 notification of the sample period during which their telephone calls
 would be monitored by a TSC supervisor and to limit Service Observation
 to specific sample periods of reasonable duration rather than subjecting
 employees to Service Observation at all times during the year.  The
 Agency agreed that the Union's bargaining objectives were to provide
 advance notification to employees and to limit the duration and
 frequency of Service Observation.  The Agency acknowledged that the
 Union obtained entitlement to advance notification in the MOA.  However,
 the Agency maintained that nothing in the MOA contains any limitation on
 the duration and frequency of Service Observation and that it was clear
 during negotiations that the sample period could vary from office to
 office and could last for a year.
    The Arbitrator agreed with the Agency that the parties' MOA does not
 require that the sample period be of a specific duration and limited
 frequency.  He concluded based upon the entire record before him,
 including the bargaining history which led to the term "sample period,"
 that "with respect to the issue of duration and frequency of service
 observation, the parties agreed to accept the practices then in effect
 at each TSC." Award at 9.
    III.  First Exception
    A.  Contentions
    As its first exception the Agency contends that the Arbitrator's
 award is based on a nonfact.  In support of this contention, the Agency
 essentially argues that nothing in the record supports the Arbitrator's
 apparent assumption that all teleservice centers had sample periods in
 effect which the centers could continue to use.
    B.  Analysis and Conclusion
    We conclude that this exception constitutes nothing more than
 disagreement with the Arbitrator's interpretation and application of the
 parties' negotiated MOA and with his reasoning and conclusions in
 resolving the dispute before him.  It is well established that such
 exceptions do not provide a basis for finding an award deficient under
 the Statute.  For example, National Park Service, National Capital
 Region, U.S. Department of the Interior and Police Association of the
 District of Columbia, 21 FLRA No. 29 (1986);  Department of Health and
 Human Services, Social Security Administration and Local 3369, American
 Federation of Government Employees, 21 FLRA No. 23 (1986).
    IV.  Second and Third Exceptions
    A.  Contentions
    As its second and third exceptions the Agency contends that the
 Arbitrator's award is contrary to section 7106(a) of the Statute.  The
 Agency makes essentially the same arguments in support of both
 exceptions.  Specifically, the Agency argues that the Arbitrator's
 interpretation of the term "sample period" in accordance with the
 practices in effect when the MOA was executed could prevent the Agency
 from conducting Service Observation in any center where there was no
 sample period practice.  The Agency maintains that the award therefore
 improperly limits and directly interferes with its rights under section
 7106(a) to direct employees by Service Observation and to determine how
 an employee's work should be observed for appraisal purposes.
    B.  Analysis and Conclusion
    We conclude that the Agency has failed to establish that the
 Arbitrator's award is deficient as alleged.  In American Federation of
 Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals
 and Social Security Administration, 23 FLRA No. 43 (1986) (proposal 1),
 petition for review filed sub nom. FLRA v. Social Security
 Administration, No. 87-1118 (D.C. Cir. March 8, 1987), we held that a
 proposal which established the normal frequency for Service Observation
 telephone monitoring was within the duty to bargain under the Statute.
 We determined that the criteria in the proposal were illustrative rather
 than restrictive and did not inhibit the Agency from employing more
 rigorous scrutiny of employees' work when closer review was warranted.
 See also American Federation of Government Employees, Local 1760,
 AFL-CIO and Department of Health and Human Services, Social Security
 Administration, 15 FLRA 909 (1984), rev'd as to other matters, Decision
 and Order on Motion for Reconsideration (June 19, 1985) (Proposal 7,
 Measuring Productivity).
    In this case, as noted above, the Arbitrator found that the MOA does
 not require that a sample period be of a specific duration and limited
 frequency, and he concluded that the parties agreed to accept the
 practices in effect at each TSC.  It is clear from the record that both
 the Union and the Agency understood that a sample period could vary in
 each center and could be as long or as short as appropriate (Agency's
 Post-Hearing Brief at 9;  Transcript at 56) and that the sample period
 in effect at the time of the MOA at the TSCs represented by the Union
 was the entire year (Union's Post-Hearing Brief at 4;  Transcript at
 7-10).  Thus, the Arbitrator in resolving the grievance before him
 concerning the interpretation of the MOA determined the "sample period"
 that normally would be utilized to monitor the telephone calls of
 employees subject to Service Observation.  By concluding that the
 parties accepted the practices then in effect at each TSC, the award
 does not prevent the Agency from conducting Service Observation in
 centers that did not have a sample period when the parties entered into
 their agreement.  The award does not address those teleservice centers
 where there was no practice in effect at the time of the award and,
 therefore, we do not view it as a restriction on the Agency's rights in
 those centers.  Also, since