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59 FLRA No. 60
OF GOVERNMENT EMPLOYEES,
SOCIAL SECURITY ADMINISTRATION
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 represent it in the grievance procedure; that choice is to be made by each party." NFFE, 29 FLRA at 730. As the Arbitrator's award is consistent with this legal standard, we reject the Union's claim that the award is contrary to the Authority's decision in NFFE. [n3]
We also reject the Union's claim that the award is contrary to the Authority's decision in AFGE because § 10 was negotiated pursuant to the Agency's exercise of its discretion to bargain over working conditions of supervisors. In this connection, even assuming the Agency exercised its discretion in this manner by agreeing to § 10, that provision still is unenforceable if it conflicts with the Statute. See AFGE, 52 FLRA at 682 (holding that such provisions are enforceable only if they are otherwise consistent with the Statute). As relevant here, proposals that either require supervisors to perform certain duties, or preclude supervisors from performing certain duties, affect management's right to assign work. See, e.g., AFGE, Local 3529, 56 FLRA 1049, 1050 (2001), citing NAGE, Local R1-100, 56 FLRA 268, 272 (2000). The Union neither argued in arbitration, nor argues here, that § 10 was negotiated pursuant to one of the exceptions to management's rights found in § 7106(b) of the Statute. Consequently, we cannot conclude that the award is contrary to the Authority's decision in AFGE.
The Union's exception is denied.
Article 24, Section 10 of the parties' agreement provides, in pertinent part:
ARTICLE 24 - GRIEVANCE PROCEDURE
Section 10. Union Management Grievance
Either party may opt to submit grievances through their respective representatives at the national, component, or local levels. Grievances at the national level will be submitted to the Commissioner or designee or the General Committee spokesperson or designee as appropriate. Grievances at the component level will be submitted to the component head or designee or the AFGE component president or designee as appropriate. Grievances at the local level will be submitted to the Regional Chief ALJ, Regional Commissioner, Regional Director, Regional Chief Counsel, Associate Commissioner or equivalent and the designated Union official, as appropriate. . . .
Award at 2.
Concurring Opinion of Chairman Cabaniss:
I write separately to discuss an issue raised by the excepting party and not addressed by the majority opinion. In drafting the Federal Service Labor-Management Relations Statute, Congress engaged in an accommodation of competing interests and considerations and provided a carefully crafted compromise. One of the areas most reflective of this careful crafting is the language surrounding the agency rights established by § 7106(a) of our Statute. Congress provided in § 7106(a) that "nothing in [the Federal Service Labor-Management Relations Statute] shall affect the authority of any management official of an agency" in exercising those rights under § 7106(a), "[s]ubject to subsection (b)" of § 7106.
To that end, I would place no reliance on the exception arguing a "carve out" from an agency's § 7106(a) rights based upon § 7121 of our Statute, as that asserted exemption from § 7106(a) clearly has no basis in the Statute. As the "carve out" argument has been made, I would take the opportunity to address it now and correct what I believe to be a limitation upon § 7106 not provided by Congress.
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