American Federation of Government Employees,, Council 220 (Union) and Social Security Administration, Baltimore, Maryland (Agency)

[ v59 p415 ]

59 FLRA No. 60







October 22, 2003


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Charles Feigenbaum filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.

      The Arbitrator determined that, under Authority precedent, Article 24, § 10 (hereinafter, § 10) of the parties' agreement could not be interpreted as precluding the Agency from allowing designees to hear and decide Union grievances. Therefore, the Arbitrator denied the Union's grievance. We conclude that the award is not deficient, and we deny the Union's exception.

II.      Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated § 10 of the parties' negotiated grievance procedure by using designees to hear and decide Union grievances. [n2]  The grievance was submitted to arbitration on this stipulated issue: "[d]id the Agency violate . . . § 10 of the National Agreement by improper use of designees in the local level § 10 procedure for field offices and teleservice centers?" Award at 2. The Arbitrator determined the threshold issue to be "whether requiring specified management officials to hear and decide grievances violates the management right to assign work" under § 7106(a)(2)(B) of the Statute. Id. at 23.

      The Arbitrator concluded that "§ 10 may not be read to prohibit management from using designees[,]" id. at 20, because "requir[ing] particular individuals to perform specific tasks . . . directly interferes with management's right to assign work." Id. at 23. In reaching this conclusion, the Arbitrator rejected the Union's claim that under NFFE, Local 29, 29 FLRA 726, 728 (1987) (NFFE), § 7121 of the Statute "carves out" an exception to this management right. According to the Arbitrator, the proposal in NFFE "did not specify persons . . . required to decide grievances" like § 10 does, and it "had a strong fairness component" that § 10 lacks. Id. at 24.

      The Arbitrator also rejected the Union's claim that § 10 was enforceable because it was negotiated consistent with the holding in AFGE, Local 3302, 52 FLRA 677 (1996) (Member Armendariz concurring) (AFGE) that agencies may "negotiate terms and conditions of employment affecting managers[.] " Id. at 23-24. The Arbitrator found that AFGE was inapplicable because § 10 requires "specified management officials to hear and decide grievances" which violates management's right to assign work. Id. at 23-24. Therefore, the Arbitrator denied the grievance. Id. at 25.

III.       Union's Exception

      The Union argues that the award is contrary to the Authority's decision in NFFE because the Arbitrator incorrectly concluded that § 10 of the parties' agreement affects the Agency's right to assign work under § 7106(a)(2)(B) of the Statute. In this connection, the Union asserts that § § 10 was negotiated under 5 U.S.C. § 7121, which NFFE held "carves out" an exception to management's right to assign work. Exceptions at 4. Furthermore, the Union argues that the award is contrary to the Authority's decision in AFGE because § 10 resulted from the Agency's exercise of its discretion "to agree to a provision that specifies grievance responsibilities a particular management official will perform[.]" Id. at 6.

IV.     The Award Is Not Contrary to Law

      Because the Union claims that the award is contrary to the Authority's precedent, we review the Union's exception and the award 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the [ v59 p416 ] Authority defers to the arbitrator's underlying factual findings. See Id.

      The Union claims that under NFFE, the Arbitrator was required to enforce § 10 of the parties' agreement simply because it was negotiated as part of the parties' grievance procedure under § 7121 of the Statute. We disagree and find that the Arbitrator correctly determined that interpreting § 10 as requiring specific Agency officials to hear and decide Union grievances is inconsistent with the standard applied in NFFE. In reaching this conclusion, we accept the Arbitrator's undisputed factual finding that § 10 was not designed to prevent "the kind of intrinsic unfairness in the grievance procedure that the proposal in NFFE . . . was designed to prevent." Award at 24. In agreement with the Arbitrator, we find that § 10 of the parties' agreement is distinguishable from the proposal found to be negotiable in NFFE. In this connection, the NFFE proposal did not "specify persons who were required to decide grievances" like § 10 of the parties' agreement does. In fact, the Authority expressly limited the applicability of its decision in that case by emphasizing that its decision was not "intended to require either party to designate any particular official to