---

 5 FLRA No. 34
 
 MID-AMERICA PROGRAM SERVICE
 CENTER, SOCIAL SECURITY
 ADMINISTRATION, DEPARTMENT OF
 HEALTH, EDUCATION, AND WELFARE
 Activity
 
 and
 
 LOCAL NO. 1336, AMERICAN
 FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-91
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HAROLD W. DAVEY FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE UNION FILED A GRIEVANCE ALLEGING
 MULTIPLE VIOLATIONS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 ESSENTIALLY, THE UNION CLAIMED THAT THE ACTIVITY VIOLATED THE RIGHTS OF
 CERTAIN EMPLOYEES UNDER THE AGREEMENT BY DENYING THEM CAREER LADDER
 PROMOTIONS.  THE UNION PRINCIPALLY ARGUED THAT MANAGEMENT WAS
 MISAPPLYING THE INDIVIDUAL EMPLOYEE ASSESSMENT SYSTEM (IEAS) AND ITS
 ADDENDUM BY USING PROHIBITED NUMERIC PRODUCTION STANDARDS.  THE
 GRIEVANCE WAS SUBMITTED TO ARBITRATION, BUT, AS NOTED BY THE ARBITRATOR,
 THE PARTIES DID NOT AGREE ON A STATEMENT OF THE ISSUE TO BE ARBITRATED.
 AT THE HEARING THE UNION STATED THE ISSUE TO BE THAT MANAGEMENT
 "MISAPPLIED QUANTITY AND QUALITY STANDARDS IN THE POSITIONS OF BENEFIT
 AUTHORIZER AND CLAIMS AUTHORIZER AND THEIR RESPECTIVE TRAINEE
 POSITIONS." THE ACTIVITY STATED THE ISSUE TO BE WHETHER MANAGEMENT HAD
 VIOLATED ANY PROVISIONS OF THE AGREEMENT AS ALLEGED BY THE UNION.
 
    PRELIMINARILY, THE ARBITRATOR DETERMINED THAT IT WAS NOT NECESSARY
 FOR HIM TO QUOTE IN FULL THE TEN CONTRACT PROVISIONS ALLEGED TO HAVE
 BEEN VIOLATED.  INSTEAD, HE IDENTIFIED THE PROVISIONS CITED BY THE
 UNION, SUMMARIZED THE ACTIVITY'S ANSWER TO EACH ALLEGED VIOLATION, AND
 DECLARED THAT HE "HA(D) CAREFULLY STUDIED ALL CITED CONTRACT PROVISIONS
 IN THE COURSE OF REVIEWING THE RECORD AS A WHOLE." ALSO AS A PRELIMINARY
 MATTER, THE ARBITRATOR CONCLUDED THAT HE WOULD NOT "EXPLORE THE VALIDITY
 OF THE (IEAS) AND ITS ADDENDUM." RATHER, IT WAS HIS JUDGMENT THAT THEY
 WERE PROPERLY IN EFFECT AT ALL RELEVANT TIMES.  HE EXPLAINED THAT IT WAS
 CLEAR THAT THERE WERE DISCUSSIONS OF THE SYSTEM BETWEEN THE PARTIES;
 THAT SOME INPUT BY THE UNION WAS INCORPORATED IN THE FINAL VERSION
 SUBMITTED TO THE UNION;  THAT THE UNION DID NOT THEREAFTER RESPOND TO
 THIS VERSION;  THAT THE SYSTEM BECAME OPERATIONAL OVER A YEAR BEFORE THE
 GRIEVANCES;  AND THAT THE UNFAIR LABOR PRACTICE PROCEEDING INSTITUTED BY
 THE UNION WITH RESPECT TO THE ASSESSMENT SYSTEM WAS LOST.  INSTEAD, THE
 ARBITRATOR CONSIDERED THE DISPOSITIVE QUESTION TO BE WHETHER MANAGEMENT
 HAD COMPLIED WITH THE ASSESSMENT SYSTEM IN THE CASES OF THE THREE
 EMPLOYEES PRESENTED TO HIM.
 
    IN RESOLVING THIS QUESTION, THE ARBITRATOR CONCLUDED THAT THE
 NUMEROUS VIOLATIONS OF THE AGREEMENT ALLEGED BY THE UNION WERE "IN SUM"
 A CLAIM THAT MANAGEMENT WAS NOT COMPLYING WITH THE ASSESSMENT SYSTEM BY
 USING PROHIBITED NUMERIC STANDARDS IN APPRAISING THE WORK OF BENEFIT
 AUTHORIZER AND CLAIMS AUTHORIZER TRAINEES.  HOWEVER, THE ARBITRATOR
 FOUND:
 
    MANAGEMENT IN THE INSTANT CASE WAS NOT USING NUMERIC STANDARDS
 (SINGLE NUMBERS THAT MUST BE
 
    HIT) BUT RATHER WAS USING PERFORMANCE STANDARDS INVOLVING RANGES IN
 THREE AREAS:  1) NUMBER OF
 
    CASES PER DAY, 10 TO 14;  2) PAYMENT ACCURACY, 88 TO 92 PERCENT;  AND
 3) OVERALL ACCURACY, 82 TO
 
    86 PERCENT.  THE RECORD IS REPLETE WITH EXAMPLES THAT THE AFORESTATED
 RANGES ARE NOT ABSOLUTES
 
    BUT ARE SET FORTH AS STANDARDS WHICH A BA TRAINEE SHOULD HAVE
 ACHIEVED TO QUALIFY FOR A BA
 
    POSITION.  THE ARBITRATOR FURTHER FOUND THAT THE PERFORMANCES OF THE
 THREE EMPLOYEES WERE SUBSTANTIALLY BELOW THE RANGES IN ONE OR MORE OF
 THE THREE AREAS AND THAT MANAGEMENT HAD GIVEN THEM EXTENSIVE ASSISTANCE.
  CONSEQUENTLY, THE ARBITRATOR DETERMINED THAT THERE WAS NO BASIS FOR
 FINDING THAT MANAGEMENT WAS USING NUMERIC STANDARDS OR THAT THE RANGES
 IT DID USE AS TRAINING GOALS WERE APPLIED UNFAIRLY OR UNREASONABLY.
 ACCORDINGLY, AFTER "EXAMIN(ING) EACH CONTRACTUAL ALLEGATION CAREFULLY IN
 THE LIGHT OF THE ENTIRE RECORD," THE ARBITRATOR RULED THAT "NONE OF THEM
 HAS BEEN PROVED AGAINST MANAGEMENT IN THIS PROCEEDING." TERMING THIS
 CASE "ONE OF DECIDING UNDER THE CONTRACT WHETHER THE GRIEVANCES . . .
 SHOULD BE SUSTAINED OR DENIED," THE ARBITRATOR AS HIS AWARD DENIED THE
 GRIEVANCES OF THE THREE EMPLOYEES WHOSE CASES WERE PRESENTED TO HIM.
 
    THE UNION HAS FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  THE AGENCY FILED AN OPPOSITION.  /2/
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO LAW, RULE, OR REGULATION OR IS DEFICIENT ON OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
 AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7116(D) AND SECTION
 7121(A) AND (B) OF THE STATUTE.  /3/ IN SUPPORT OF THIS EXCEPTION, THE
 UNION IN ESSENCE FIRST STATES THAT SECTION 7121(A) AND (B) ESTABLISHES
 THAT THE PROCEDURE FOR THE SETTLEMENT OF GRIEVANCES PROVIDED BY A
 COLLECTIVE BARGAINING AGREEMENT SHALL BE THE EXCLUSIVE PROCEDURE FOR THE
 RESOLUTION OF GRIEVANCES WITHIN ITS COVERAGE.  THE UNION FURTHER STATES
 THAT SECTION 7116(D) PROVIDES THAT CERTAIN ISSUES CANNOT BE RAISED UNDER
 TWO DIFFERENT PROCEDURES.  THUS, THE UNION ASSERTS THAT, BY REFERRING TO
 THE UNFAIR LABOR PRACTICE PROCEEDING AND FINDING THAT THE IEAS AND
 ADDENDUM WERE PROPERLY IN EFFECT, THE ARBITRATOR "ABORTS THE EXCLUSIVE
 PROCEDURE CONTAINED IN THE MASTER AGREEMENT BY INCLUSION OF THE RESULTS
 OF AN UNFAIR LABOR PRACTICE CHARGE WHICH WAS NOT AT ISSUE AND DID NOT
 PERTAIN TO THE ISSUE BETWEEN THE PARTIES." THE UNION CONCLUDES THAT THE
 UNFAIR LABOR PRACTICE DECISION RELIED ON BY THE ARBITRATOR CANNOT BE
 CONSTRUED AS A BAR TO OR PRECEDENT FOR THE RESOLUTION OF A GRIEVANCE
 PROPERLY FILED UNDER A COLLECTIVE BARGAINING AGREEMENT AND THAT
 THEREFORE THE AWARD VIOLATES SECTIONS 7116(D) AND 7121(A) AND (B) OF THE
 STATUTE.
 
    THE UNION'S EXCEPTION THAT THE ARBITRATOR'S AWARD IS CONTRARY TO THE
 STATUTE STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN ARBITRATOR'S
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, THE
 UNION HAS FAILED TO SHOW THAT THE ARBITRATOR'S REFERENCE TO THE UNFAIR
 LABOR PRACTICE PROCEEDING PROVIDES IN ANY MANNER A BASIS FOR FINDING HIS
 AWARD DEFICIENT AS CONTRARY TO THE STATUTE.  AS WAS NOTED, THE
 ARBITRATOR MERELY REFERRED TO THE UNFAIR LABOR PRACTICE PROCEEDING IN
 REACHING HIS PRELIMINARY DETERMINATION THAT ITS 'ADDENDUM" BECAUSE IT
 WAS HIS "BEST JUDGMENT THAT THE IEAS AND ADDENDUM WERE PROPERLY IN
 EFFECT AT THE TIME OF THIS PROCEEDING." THEREAFTER, WITH NO AGREEMENT
 BETWEEN THE PARTIES AS TO THE ISSUE TO BE RESOLVED, BUT CONSISTENT WITH
 THE ISSUE AS STATED BY THE UNION AT THE HEARING, THE ARBITRATOR
 CONSIDERED THE ISSUE BETWEEN THE PARTIES TO BE WHETHER MANAGEMENT HAD
 COMPLIED WITH THE ASSESSMENT SYSTEM IN THE CASES OF THE THREE EMPLOYEES
 PRESENTED TO HIM.  AS HAS BEEN NOTED, THE ARBITRATOR SPECIFICALLY
 QUESTIONED WHETHER MANAGEMENT HAD FAILED TO COMPLY WITH THE SYSTEM BY
 USING PROHIBITED NUMERIC STANDARDS IN APPRAISING THE WORK OF THOSE
 EMPLOYEES.  IN FULL AND COMPLETE RESOLUTION OF THIS ISSUE, THE
 ARBITRATOR EXPRESSLY DETERMINED THAT MANAGEMENT WAS NOT USING NUMERIC
 STANDARDS AND WAS NOT OTHERWISE ACTING IMPROPERLY.  ACCORDINGLY, HE
 FOUND NO VIOLATION OF THE AGREEMENT AND AS HIS AWARD DENIED THE
 GRIEVANCES.  IN THESE CIRCUMSTANCES, THE ARBITRATOR'S PRELIMINARY
 REFERENCE TO THE UNFAIR LABOR PRACTICE PROCEEDING IN NO MANNER "BARRED"
 THE RESOLUTION OF THE UNION'S GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE.  THE UNION'S ASSERTIONS IN SUPPORT OF ITS EXCEPTION DO NOT
 PRESENT ANY BASIS FOR FINDING THE AWARD DEFICIENT AS CONTRARY TO SECTION
 7116(D) AND SECTION 7121(A) AND (B) OF THE STATUTE.  THEREFORE, THE
 UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS "THE AWARD IS BASED ON A
 NON-FACT AND CONSTITUTES A PERVERSE MISCONSTRUCTION OF TESTIMONIAL AND
 DOCUMENTARY PROOF," AND CONTENDS THE AWARD FAILS TO DRAW ITS ESSENCE
 FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT OF THAT PART OF
 ITS SECOND EXCEPTION CONTENDING THE AWARD IS BASED ON A NON-FACT, THE
 UNION ASSERTS THAT CENTRAL TO AND UNDERLYING THE AWARD ARE THE
 ARBITRATOR'S ERRONEOUS CONCLUSIONS THAT THE UNION LOST THE UNFAIR LABOR
 PRACTICE PROCEEDING AND THAT THE IEAS IS VALID.
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE CENTRAL
 FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT IS A
 GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, 2 FLRA NO. 60(1980);  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 987 AND WARNER ROBINS AIR LOGISTICS CENTER,
 ROBINS AIR FORCE BASE, GEORGIA, 3 FLRA NO. 89(1980).  IN THIS CASE,
 HOWEVER, THE UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IS DEFICIENT
 ON THIS GROUND.  AS HAS BEEN NOTED, THE ARBITRATOR'S REFERENCE TO THE
 UNFAIR LABOR PRACTICE PROCEEDING WAS ONLY ONE OF A NUMBER OF SEPARATE
 CONSIDERATIONS IN REACHING WHAT WAS A PRELIMINARY DETERMINATION NOT TO
 EXPLORE THE VALIDITY OF THE IEAS IN RESOLVING THE GRIEVANCE.  INSTEAD,
 THE ARBITRATOR VIEWED THE ISSUE AS WHETHER MANAGEMENT HAD COMPLIED WITH
 THE ASSESSMENT SYSTEM, AND IN HIS AWARD HE RESOLVED PRECISELY THAT ISSUE
 BY DENYING THE GRIEVANCES BECAUSE MANAGEMENT WAS NOT USING PROHIBITED
 NUMERIC STANDARDS OR OTHERWISE ACTING IMPROPERLY.
 
    THUS, THE UNION HAS NOT DEMONSTRATED THAT THE PRELIMINARY
 DETERMINATIONS OF THE ARBITRATOR DISPUTED BY THE UNION WERE THE CENTRAL
 FACTS ON WHICH THE ARBITRATOR BASED HIS AWARD AND THAT THEY WERE
 CONCEDEDLY ERRONEOUS.  /4/ SEE UNITED STATES ARMY MISSILE MATERIEL
 READINESS COMMAND.  THE UNION HAS NOT SHOWN THAT THE ARBITRATOR NOT ONLY
 ERRED IN HIS VIEW OF THE FACTS, BUT THAT THE SOLE ARTICULATED BASIS FOR
 HIS AWARD WAS CONCEDEDLY AND INDISPUTABLY IN ERROR.  NOR HAS A GROSS
 MISTAKE OF FACT BEEN DISCLOSED BUT FOR WHICH, IN ACCORDANCE WITH THE
 EXPRESSED RATIONALE OF THE ARBITRATOR, A DIFFERENT RESULT WOULD HAVE
 BEEN REACHED.  SEE WARNER ROBINS AIR LOGISTICS CENTER.  CONSEQUENTLY,
 THIS PART OF THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.
 
    IN SUPPORT OF THAT PART OF ITS SECOND EXCEPTION IN WHICH IT CONTENDS
 THE AWARD "CONSTITUTES A PERVERSE MISCONSTRUCTION OF TESTIMONIAL AND
 DOCUMENTARY PROOF," THE UNION ASSERTS THAT THE AWARD IS AT VARIANCE WITH
 THE FACTS AND IS GROSS ERROR.  HOWEVER, THIS ASSERTION CONSTITUTES
 NOTHING MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S FINDINGS OF FACTS
 AND HIS EVALUATION OF THE EVIDENCE AND TESTIMONY BEFORE HIM.  THEREFORE,
 THIS PART OF THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 NATIONAL BORDER PATROL COUNCIL AND U.S. IMMIGRATION AND NATURALIZATION
 SERVICE, SOUTHERN REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980).
 
    IN SUPPORT OF THAT PART OF ITS SECOND EXCEPTION IN WHICH IT CONTENDS
 THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT, THE UNION
 ASSERTS THAT THE AWARD IS DEFICIENT BECAUSE THE ARBITRATOR "DID NOT
 CONSIDER OR ADDRESS THE INTERPRETATION AND APPLICATION OF THE ARTICLES
 OF THE MASTER AGREEMENT AS CITED BY (THE UNION) AND RESPONDED TO BY THE
 AGENCY/ACTIVITY." IT EMPHASIZES THAT "THE ARBITRATOR DID NOT DEEM IT
 NECESSARY TO QUOTE IN FULL THE VARIOUS CONTRACT PROVISIONS." ALTHOUGH
 THIS EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE,
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA
 NO. 60(1980), THE UNION'S ASSERTIONS IN SUPPORT OF THIS EXCEPTION
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.  AS HAS BEEN NOTED,
 AFTER "EXAMIN(ING) EACH CONTRACTUAL ALLEGATION CAREFULLY IN THE LIGHT OF
 THE ENTIRE RECORD," THE ARBITRATOR SPECIFICALLY RULED THAT "NONE OF THEM
 HAS BEEN PROVED AGAINST MANAGEMENT IN THIS PROCEEDING." THUS, THE UNION
 HAS NOT SHOWN THAT THE ARBITRATOR "DID NOT CONSIDER OR ADDRESS THE
 INTERPRETATION AND APPLICATION OF THE (AGREEMENT)." FURTHERMORE, THE
 AUTHORITY HAS SPECIFICALLY DETERMINED THAT ASSERTIONS REGARDING AN
 ARBITRATOR'S NEGLECT TO MAKE SPECIFIC REFERENCE TO AGREEMENT PROVISIONS
 IN DISPUTE FAIL TO PROVIDE A BASIS FOR FINDING THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2327 AND DEPARTMENT OF HEALTH,
 EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, 5 FLRA NO.
 23(1981) AND THE PRIVATE SECTOR CASES CITED THEREIN.  THEREFORE, THE
 UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C.  7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES.
 
    IN ITS THIRD EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR FAILED
 TO CONDUCT A FAIR AND IMPARTIAL HEARING, THAT THE AWARD LACKS ENTIRETY,
 AND THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THAT PART
 OF THIS EXCEPTION IN WHICH IT CONTENDS THAT THE ARBITRATOR FAILED TO
 CONDUCT A FAIR AND IMPARTIAL HEARING, THE UNION ARGUES THAT THE
 ARBITRATOR DID NOT DECIDE ALL THE ISSUES BECAUSE HE DOES NOT
 SPECIFICALLY QUOTE IN FULL THE AGREEMENT PROVISIONS IN DISPUTE.  THE
 UNION CLAIMS THAT THIS CONSTITUTES THE DENIAL OF A FAIR HEARING.  THE
 UNION ADDITIONALLY CLAIMS THAT "THE ARBITRATOR WOULD NOT ALLOW (IT) TO
 PURSUE AND PRESENT ALL MATERIAL EVIDENCE TO REFUTE THE ERRONEOUS . . .
 AWARD" AND THAT THIS FURTHER CONSTITUTES A DENIAL OF A FAIR HEARING.
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE ARBITRATOR
 DENIED A PARTY A FAIR HEARING.  NATIONAL BORDER PATROL COUNCIL AND
 NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND UNITED
 STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 3
 FLRA NO. 62(1980).  HOWEVER, THE UNION'S ASSERTIONS FAIL TO DEMONSTRATE
 THAT THE ARBITRATOR DENIED THE UNION A FAIR HEARING.  THE UNION'S
 ASSERTIONS REGARDING THE ARBITRATOR'S FAILURE TO QUOTE IN FULL ALL OF
 THE DISPUTED AGREEMENT PROVISIONS HAVE BEEN DISCUSSED IN CONNECTION WITH
 THE UNION'S EXCEPTION THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE
 AGREEMENT AND SUCH ASSERTIONS SIMILARLY FAIL TO SUPPORT AN EXCEPTION
 THAT A PARTY WAS DENIED A FAIR HEARING.  FURTHERMORE, THE UNION'S BARE
 ASSERTION THAT THE ARBITRATOR "WOULD NOT ALLOW (IT) TO PURSUE AND
 PRESENT ALL MATERIAL EVIDENCE TO REFUTE THE ERRONEOUS . . . AWARD"
 LIKEWISE PRESENTS NO BASIS ON WHICH TO FIND THE AWARD DEFICIENT.  THE
 UNION HAS NOT DEMONSTRATED AND IT IS NOT OTHERWISE APPARENT THAT THE
 ARBITRATOR DENIED THE UNION AN ADEQUATE OPPORTUNITY FOR THE PRESENTATION
 OF EVIDENCE ON ITS ALLEGED VIOLATIONS OF THE AGREEMENT BY THE ACTIVITY.
 PARTICULARLY, THE UNION HAS NOT DEMONSTRATED AND IT IS NOT OTHERWISE
 APPARENT THAT THE UNION PROFFERED EVIDENCE FOR ADMISSION BY THE
 ARBITRATOR AND THAT SUCH PROFFERED EVIDENCE WAS MATERIAL AND RELEVANT TO
 THE ISSUE RESOLVED BY THE ARBITRATOR, BUT THAT THE ARBITRATOR EXPRESSLY
 RULED THAT SUCH EVIDENCE WOULD NOT BE ADMITTED.  IN THESE CIRCUMSTANCES
 THE UNION HAS NOT SHOWN THAT THE ARBITRATOR DENIED IT A FAIR HEARING.
 THEREFORE, THIS PART OF THE UNION'S THIRD EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.
 
    IN ASSERTING THAT THE AWARD LACKS ENTIRETY, THE UNION ARGUES THAT THE
 AWARD IS DEFICIENT BECAUSE IT "DOES NOT REFLECT THAT ANY CONSIDERATION
 WAS GIVEN TO THE CITED CONTRACT PROVISION WHICH BOTH THE (UNION) AND THE
 AGENCY/ACTIVITY DECIDED WERE THE ISSUES FOR RESOLUTION." HOWEVER, AS
 PREVIOUSLY INDICATED, THE ARBITRATOR EXAMINED "EACH CONTRACTUAL
 ALLEGATION" AND HIS FAILURE TO QUOTE IN FULL ALL OF THE DISPUTED
 PROVISIONS PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN SUPPORT OF THAT PART OF ITS THIRD EXCEPTION CONTENDING THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY, THE UNION REITERATES ITS ARGUMENT
 REGARDING THE ARBITRATOR'S CONSIDERATION OF THE UNFAIR LABOR PRACTICE
 PROCEEDING.  IN TERMS OF THIS EXCEPTION, THE UNION ASSERTS THAT BY
 "REL(YING) ON AN UNFAIR LABOR PRACTICE CHARGE," THE ARBITRATOR "WENT
 OUTSIDE THE SCOPE OF HIS DUTY" AND THEREFORE EXCEEDED HIS AUTHORITY.
 HOWEVER, AS WAS EMPHASIZED WITH RESPECT TO THE UNION'S FIRST AND SECOND
 EXCEPTIONS, THERE WAS NO AGREEMENT BETWEEN THE PARTIES AS TO THE ISSUE
 TO BE RESOLVED.  IT WAS IN DETERMINING SUCH ISSUE THAT THE ARBITRATOR
 REFERRED TO THE UNFAIR LABOR PRACTICE PROCEEDING, BUT THE REFERENCE WAS
 ONLY ONE OF A NUMBER OF SEPARATE CONSIDERATIONS BY THE ARBITRATOR IN
 REACHING WHAT WAS A PRELIMINARY DECISION NOT TO EXPLORE THE VALIDITY OF
 THE IEAS IN RESOLVING THE GRIEVANCE.  INSTEAD, THE ARBITRATOR VIEWED THE
 ISSUE AS WHETHER MANAGEMENT HAD COMPLIED WITH THE ASSESSMENT SYSTEM AND
 HE RESOLVED PRECISELY THAT ISSUE BY DENYING THE GRIEVANCES BECAUSE
 MANAGEMENT WAS NOT USING PROHIBITED NUMERIC STANDARDS OR OTHERWISE
 ACTING IMPROPERLY.  THUS, THIS ASSERTION THAT THE ARBITRATOR "WENT
 OUTSIDE THE SCOPE OF HIS DUTY" BY "RELY(ING) ON AN UNFAIR LABOR PRACTICE
 CHARGE" PRESENTS NO BASIS FOR FINDING THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY.  THEREFORE, THE UNION'S THIRD EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C.  7122(A) AND SECTION 2425.3
 OF THE AUTHORITY'S RULES.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH ACTION AND
 MAKE SUCH RECOMMENDATIONS
 
    CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR
 
    REGULATIONS.
 
    /2/ THE AGENCY HAS ALSO CONTENDED THAT THE UNION'S EXCEPTIONS SHOULD
 BE DISMISSED AS UNTIMELY AND IMPROPERLY FILED.  THE AGENCY NOTES THAT
 ALTHOUGH THE EXCEPTIONS WERE FILED WITHIN 30 DAYS OF THE DATE OF THE
 AWARD, THEY WERE FILED AT THE AUTHORITY'S KANSAS CITY REGIONAL OFFICE
 INSTEAD OF AT ITS NATIONAL OFFICE.  THE AGENCY ARGUES THAT THIS FILING
 WAS IMPROPER UNDER THE STATUTE AND THAT AS A RESULT OF THIS IMPROPER
 FILING, THE UNION'S EXCEPTIONS THAT WERE SUBSEQUENTLY RECEIVED AT THE
 NATIONAL OFFICE AFTER THE 30-DAY FILING PERIOD ARE NECESSARILY UNTIMELY.
  HOWEVER, IN VIEW OF THE CIRCUMSTANCES OF THIS CASE, PARTICULARLY THAT
 THE UNION'S EXCEPTIONS WERE RECEIVED BY THE AUTHORITY WITHIN THE PERIOD
 PROVIDED BY SECTION 7122(A) OF THE STATUTE AT THE KANSAS CITY REGIONAL
 OFFICE AND ON ADVICE OF THE REGIONAL OFFICE WERE FORWARDED THE SAME DAY
 BY THE UNION TO THE AUTHORITY AT ITS NATIONAL OFFICE WHERE THEY WERE
 PROMPTLY RECEIVED, THE UNION'S EXCEPTIONS ARE PROPERLY BEFORE THE
 AUTHORITY FOR REVIEW.
 
    /3/ 5 U.S.C. 7116(D) PROVIDES:
 
    (D) ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE
 MAY NOT BE RAISED AS
 
    UNFAIR LABOR PRACTICES PROHIBITED UNDER THIS SECTION.  EXCEPT FOR
 MATTERS WHEREIN, UNDER
 
    SECTION 7121(E) AND (F) OF THIS TITLE, AN EMPLOYEE HAS AN OPINION OF
 USING THE NEGOTIATED
 
    GRIEVANCE PROCEDURE OR AN APPEALS PROCEDURE, ISSUES WHICH CAN BE
 RAISED UNDER A GRIEVANCE
 
    PROCEDURE MAY, IN THE DISCRETION OF THE AGGRIEVED PARTY, BE RAISED
 UNDER THE GRIEVANCE
 
    PROCEDURE OR AS AN UNFAIR LABOR PRACTICE UNDER THIS SECTION, BUT NOT
 UNDER BOTH PROCEDURES.
 
    5 U.S.C. 7121(A) AND (B) PROVIDES:
 
    7121.  GRIEVANCE PROCEDURES
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY.  EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
 SECTION, THE PROCEDURES
 
    SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
 WITHIN ITS COVERAGE.
 
    (2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE
 
    GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION
 
    SHALL--
 
    (1) BE FAIR AND SIMPLE,
 
    (2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
 
    (3) INCLUDE PROCEDURES THAT--
 
    (A) ASSURE AN EXCLUSIVE REPRESENTATIVE THE RIGHT, IN ITS OWN BEHALF
 OR ON BEHALF OF ANY
 
    EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
 PRESENT AND PROCESS
 
    GRIEVANCES;
 
    (B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
 EMPLOYEE'S OWN BEHALF,
 
    AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
 DURING THE GRIEVANCE
 
    PROCEEDING;  AND
 
    (C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
 INVOKED BY EITHER THE EXCLUSIVE
 
    REPRESENTATIVE OR THE AGENCY.
 
    /4/ IT IS NOTED THAT THE ASSISTANT SECRETARY OF LABOR DISMISSED THE
 UNFAIR LABOR PRACTICE COMPLAINT.  THE FEDERAL LABOR RELATIONS COUNCIL
 SUBSEQUENTLY DENIED THE UNION'S PETITION FOR REVIEW OF THAT DECISION OF
 THE ASSISTANT SECRETARY.  SEE DEPARTMENT OF HEALTH, EDUCATION, AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND
 SURVIVOR'S INSURANCE, A/SLMR NO. 1022, 6 FLRC 863 (FLRC NO. 78A-70 (NOV.
 8, 1978), REPORT NO. 159). 
 
 
 

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