American Federation of Government Employees, Local 3627 (Union) and Social Security Administration, Office of Disability Adjudication and Review, Jacksonville, Florida (Agency)
65 FLRA No. 219
OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF DISABILITY
ADJUDICATION AND REVIEW
July 29, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Douglas F. Coleman 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 filed an opposition to the Union’s exception.
The Arbitrator denied the Union’s grievance, finding that the Agency had the right to suspend temporarily the flexiplace program due to a lack of available work. For the reasons set forth below, we deny the Union’s exception.
II. Background and Arbitrator’s Award
The grievant is employed as a Decision Writer in the Agency’s Office of Disability Adjudication and Review (ODAR). Award at 4. In addition to a national collective bargaining agreement, the Agency and the Union negotiated a flexiplace agreement for the purpose of establishing a flexible workplace program. Id. at 1.
The flexiplace agreement provides that employees have the ability to work at an Alternative Duty Station (ADS) at least one, but up to three, days a week. Id. at 10. Employees must request leave to participate in the flexiplace program every six months. Id. The grievant’s supervisor approved the grievant’s timely request for three ADS days. Id. However, shortly thereafter, the hearing office director (Director) sent an email approving only one ADS day a week for all employees because there was insufficient work available to support employees working three ADS days. Id. at 10-11.
The Union presented a grievance, alleging that the Agency violated the flexiplace agreement by unilaterally changing the ADS assignments. Id. at 1. The matter was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows: “Did the [Director] unilaterally change the Flexiplace Program [Flex Plan] from 3 days to 1 day after the immediate Supervisor had approved a 3-day plan for [the grievant]?” Id. at 2 (second alteration in original).
The Arbitrator found that, under the flexiplace agreement, supervisors had the right to change an employee’s ADS days or temporarily to suspend the employee’s participation in the flexiplace program based on workload availability. Id. at 10. Further, the Arbitrator determined that a Director may review ADS requests before they are approved by the immediate supervisor to determine if enough work is available. Id. at 12. Accordingly, because the Arbitrator found that the Agency had the authority to change or suspend the flexiplace program, he denied the grievance. Id. at 12-13.
III. Positions of the Parties
A. Union’s Exception
The Union notes that the issue it submitted to the Arbitrator was: “Did the Agency violate the [flexiplace agreement] when it unilaterally changed the terms of the flexiplace agreements properly and timely entered by bargaining unit employees and the appropriate management official in the Jacksonville, Florida [ODAR]?” Exception at 1. According to the Union, the Agency’s submitted issues were: (1) “Whether the [A]gency violated the Agreement by limiting Decision-Writers to working at home one day per week . . . ?”; (2) “Whether the Agency violated the Agreement by retracting work plans signed in error by a Group Supervisor . . . ?”; and (3) “Whether the relief requested by the [U]nion is available under law, rule, regulation or collective bargaining agreement?” Id.
The Union argues that the Arbitrator “did not resolve the issue submitted to him by the Union, . . . the issues submitted to him by the Agency, . . . [or] the issue as he framed it himself.” Id. Additionally, the Union claims that the Arbitrator “limited the scope of the case” to the individual grievant, even though the Union filed the grievance on behalf of all the Agency’s Decision Writers in Jacksonville. Id. at 2.
B. Agency’s Opposition
The Agency argues that the Union did not “provide sufficient citation” to establish the grounds upon which it relied in filing its exception. Opp’n at 7 (quoting 5 C.F.R. § 2425.6(c)).
Further, the Agency asserts that the Arbitrator did not exceed his authority because he is “free to formulate the issues based on the subject matter of the grievance” and that the Authority must give “substantial deference” to the Arbitrator’s formulation. Id. at 8. In this regard, the Agency contends that the Arbitrator did not err in “limiting the applicability of his decision” to the grievant because he “may choose to frame the issue narrowly.” Id. at 9. The Agency claims that the Arbitrator is not required to resolve issues that he did not frame for resolution. Id. at 8.
The Agency also argues that the Arbitrator did not fail to resolve his formulated issue. Id. at 10. The Agency claims that the Arbitrator reviewed the flexiplace agreement and the hearing testimony before concluding that the Directors may approve or reject employee