44:0550(46)AR - - HHS, SSA, OHA and AFGE Council 215, National Council of SSA OHA Locals - - 1992 FLRAdec AR - - v44 p550
[ v44 p550 ]
The decision of the Authority follows:
44 FLRA No. 46
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION
March 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff 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 filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by taking actions that were inconsistent with the agreement's procedures concerning the handling and processing of contractual grievances.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency violated Article 24, Section 10, Union Management Grievance, of the parties' collective bargaining agreement.(*) The Union alleged that the Agency's Associate Commissioner improperly delegated her decision-making responsibilities concerning Union grievances to her Special Counsel. The Union took the position that, under the parties' agreement, the Special Counsel cannot issue decisions on Union/Management grievances. The grievance further alleged that the Special Counsel engaged in unethical conduct by performing grievance duties for the Associate Commissioner and that such duties constituted a conflict of interest. The grievance was not resolved and was submitted to arbitration.
The parties were unable to agree on the appropriate formulation of the issues. The Arbitrator determined that the issues formulated by the Union adequately presented the matters needing resolution. Those issues are as follows:
1. Is it the intent of Article 24, Section 10 to allow the Associate Commissioner, OHA, to divide his/her responsibility for processing Union grievances by use of subordinate designees in the Special Counsel component to take oral and/or written evidence, while reserving the decision-making power to the Office of Associate Commissioner? If not, is the Associate Commissioner responsible for all steps of the Union grievance procedures, in holding an oral presentation, considering evidence, attempting to resolve the grievance and giving a written decision with the statement of reasons?
2. Is it a conflict of interest and/or an abuse of the Union's due process rights to allow the Special Counsel to the Associate Commissioner, . . . and/or his staff, to be directly involved in the Union grievance procedures prior to the issuance of the Agency's decision?
3. Was it proper for OHA to designate the Special Counsel to the Associate Commissioner, . . . to act as a designee in the grievance procedure with complete decision making responsibility for Union grievances for the period January 25, 1990 to May 30, 1990? If not, what is the remedy?
Award at 2.
As to the first issue, the Arbitrator concluded that the Associate Commissioner's decision to delegate some of her grievance handling responsibilities to the Special Counsel did not violate Article 24, Section 10 of the parties' collective bargaining agreement or any established past practice. The Arbitrator determined that the parties intended to have Section 10 grievances submitted to certain identified individuals or their designees. However, he found that Section 10 "does not state, nor does it necessarily imply, that there was to be any other restriction on the choice of which official or designee is to hear and decide grievance[s] . . . ." Id. at 9. Further, the Arbitrator determined that the record established that in the past the Agency had designated several different individuals who were subordinate to the Associate Commissioner to hear and decide Section 10 grievances. The Arbitrator found, therefore, that the evidence did not establish that a past practice existed which precluded the Agency from "splitting" the function of hearing and deciding Section 10 grievances between different individuals. Id. at 13. The Arbitrator noted that the former Union President "did not testify and thus there is no record evidence concerning his understanding or agreement with regard to the Agency's use of a designee to hear and/or decide Section 10 grievances." Id.
With respect to the second and third issues, the Arbitrator determined that the Union had not established that the Associate Commissioner's delegation of grievance responsibilities to the Special Counsel resulted in any conflict of interest or abuse of the Union's due process rights or that the Agency acted improperly in designating the Special Counsel to handle grievances filed between January 25 and May 30, 1990. The Arbitrator stated, among other things, that the fact that a potential conflict could arise in a particular case did not require a finding that the Special Counsel must be disqualified from all grievance handling, "even for grievances which [had] no demonstrable relation to any pending investigations or wrongdoing conducted by the Special Counsel." Id. at 15.
The Arbitrator noted that although none of the issues before him directly raised the question of unethical conduct by the Special Counsel, the Union had argued throughout the proceeding that the Special Counsel was engaged in unethical conduct because "he was very argumentative, . . . he had no interest in the amicable resolution of labor relations matters" and "his attitude was off[e]nsive[.]" Id. at 16. The Arbitrator found that although the Union's assertions indicated a failure by the Special Counsel "to communicate in a problem-resolving spirit, nevertheless, [the assertions] cannot be found to constitute evidence of 'unethical conduct' . . . ." Id. In this regard, the Arbitrator noted that grievances were resolved between the Union and the Special Counsel and, therefore, "it cannot be found that [the Special Counsel] was incapable of resolving problems with the Union short of [a]rbitration." Id. at 17. Based on his findings, the Arbitrator concluded that there was nothing in the record that demonstrated that the Associate Commissioner was prevented by any actions taken by the Special Counsel, the parties' agreement, or past practices "from designating [the Special Counsel as her] representative for hearing and/or deciding Section 10 grievances." Id.
Based on the above findings, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law, rule, and regulation because the award is untimely. The Union argues that Article 25, Section 5F of the parties' collective bargaining agreement requires an arbitrator to render a decision "not later than thirty (30) days after the conclusion of the hearing, unless the parties mutually agree to extend the time limit." Exceptions at 3. The Union asserts that the award was due no later than June 8, 1991, and was not issued until August 8, 1991. Therefore, the Union asserts that the Arbitrator violated the parties' collective bargaining agreement and that the award should be vacated and remanded to a different arbitrator for a new hearing and decision. Additionally, the Union argues that the parties should not be held responsible for the payment of the Arbitrator's charges.
The Union further contends that the Arbitrator was arbitrary and capricious "to demand that the Union produce a retired [F]ederal employee to sustain its burden of proof of the exist[e]nce of a past practice . . . ." Id. at 4. The Union asserts that the record evidence in this case "clearly established" that a past practice existed concerning the procedures followed by the Agency in processing Union grievances. Id. Furthermore, the Union states that the Arbitrator acknowledged that the Special Counsel was hostile to the Union. Under these circumstances, the Union argues that the award is "arbitrary" because the Arbitrator also found that the Special Counsel "acted in an offensive manner to the Union, but that the Union had to continue to deal with [him] or similar designees who refused to amicably resolve grievances." Id. at 1.
B. Agency's Opposition
The Agency asserts that the Union contacted the Arbitrator in July 1991 to inquire as to the status of the award. According to the Agency, the Union informed the Agency that the Arbitrator stated that the award had been unavoidably delayed, but would be issued in early August. The Agency states that the Union did not indicate in any way that it objected to the Arbitrator's actions. The Agency argues that because the Union did not object to the Arbitrator's action concerning the timeliness of the award before the award was issued, the Union should not be permitted to raise such objections after the fact. The Agency cites private sector case law in support of its position. The Agency further contends that the Union cites only the parties' collective bargaining agreement to support its argument and does not cite any law, rule or regulation that the Arbitrator allegedly violated.
The Agency contends that the Union's argument that the Arbitrator's award is arbitrary and capricious because it mandates that the Union produce a retired employee to sustain a past practice "is totally without merit." Opposition at 2. The Agency asserts that the Arbitrator did not mandate that the Union produce anyone as a witness. Rather, according to the Agency, the Arbitrator based his decision on the evidence in the record.
Further, the Agency asserts that, contrary to the Union's contention, the Arbitrator did not conclude that the Agency's Special Counsel was hostile to the Union. The Agency maintains that the Arbitrator merely stated that even if the Union's assertion that the Special Counsel's conduct was unethical were true, "it would not prevent this person from serving as the management designee." Id. at 3.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute.
First, we reject the Union's contention that the award is contrary to law, rule, and regulation. The Union cites no law, rule or regulation with which the award conflicts, and none is apparent to us. Accordingly, we reject the Union's assertion. See U.S. Department of the Treasury, United States Mint and American Federation of Government Employees, Mint Council, Local 1023, 43 FLRA No. 123 (1992).
As to the Union's assertion that the award is deficient because it was not issued within the timeframes of the parties' agreement, the record indicates that the Union did not contact the Arbitrator until July 1991 to inquire as to the status of the decision. At that time, the Arbitrator informed the Union that his decision would be issued in August. The Arbitrator issued his award on August 8, 1991. The uncontroverted record establishes that the Union objected to the Arbitrator's alleged failure to comply with the timeframes established by the parties' agreement only after the award was issued. The Authority has found that an exception claiming, after an award is issued, that the award is deficient because it was not issued within an applicable time period provides no basis for finding the award deficient. See Army Materials and Mechanics Research Center and American Federation of Government Employees, Local 3404, 32 FLRA 1156, 1158 (1988); U.S. Army Plant Representative Office, Bell Helicopter Textron, Fort Worth, Texas and Local 2475, American Federation of Government Employees, 29 FLRA 1329, 1329-30 (1987). See also West Rock Lodge No. 2120, IAMAW v. Geometric Tool Co., 406 F.2d 284 (2d Cir. 1968). Therefore, we find that the Union's exception in this regard provides no basis for finding the Arbitrator's award deficient.
We further find that the Union's contention that the award is arbitrary and capricious because it requires the Union to produce a retired employee (the former Union President) as a witness to sustain its burden of proof as to the existence of a past practice provides no basis for finding the award deficient. Nothing in the award demonstrates that the Arbitrator required the Union to produce any witness to establish whether a past practice existed. The Arbitrator based his decision on the record evidence before him and found that the evidence revealed no established past practice which prevented the Agency from designating various officials to hear and decide grievances filed under Article 24, Section 10 of the parties' agreement. The Arbitrator only noted that because the former Union President did not testify, there was no record evidence concerning his understanding of the Agency's use of a designee to hear or decide Section 10 grievances. Therefore, we conclude that the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions based on the evidence. Disagreement with an arbitrator's evaluation of the evidence and with his findings and conclusions based thereon provides no basis for finding an award deficient. See, for example, U.S. Department of Health and Human Services,