[ v22 p961 ]
22:0961(97)AR
The decision of the Authority follows:
22 FLRA No. 97
U.S. DEPARTMENT OF EDUCATION
Agency
and
NATIONAL COUNCIL OF DEPARTMENT
OF EDUCATION LOCALS, COUNCIL 252,
AFGE, LOCAL 3893
Union
Case No. 0-AR-1091
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Thomas M. Phelan filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant, the local union president, received for the appraisal
year in dispute an overall rating of unsatisfactory. A grievance was
filed protesting the rating and was submitted to arbitration on the
following stipulated issue:
Has the Employer violated Article 7, Section 7.01 and/or 7.05
by discriminating against the grievant in his performance
appraisal because of his position with the Union, or has the
Employer violated Article 22 by knowingly and incorrectly
evaluating the grievant's performance and/or by refusing to
develop a performance plan with due consideration to the time
required to fulfill labor-management representational functions?
If so, what shall the remedy be?
At arbitration the Union argued, among other things, that the
appraisal was defective because a work adjustment should have been made
for the grievant to accommodate his representational duties and that his
supervisor did not make the adjustment because of union animus. In
response the Arbitrator stated that if the evidence showed that a
workload adjustment was both necessary and practical and that management
failed to make the adjustment due to union animus, this would conflict
with Article 13, pertaining to official time, and would constitute a
violation of Article 7 because of the obvious restraint on union
representatives. On the basis of the evidence presented, the Arbitrator
specifically ruled that the grievant's performance rating was defective
because the grievant's supervisor failed to properly deal with the issue
of a work adjustment during the appraisal period because "the required
neutrality with respect to representational functions was compromised."
As his award the Arbitrator ordered the rating voided.
III. FIRST EXCEPTION
A. Contentions
The Agency contends that the award is deficient because the
Arbitrator exceeded his authority by determining an issue not included
in the subject matter submitted to arbitration. Specifically, the
Agency maintains that the award is based on a determination that the
grievant's supervisor violated the provisions of Article 13 of the
collective bargaining agreement. Thus, the Agency argues that the
Arbitrator determined an issue not submitted because the stipulated
issue dealt only with whether the appraisal was the product of union
animus in violation of Article 7 or whether management violated Article
22 in evaluating the grievant or developing his performance plan.
B. Analysis and Conclusions
The Authority concludes that the Agency fails to establish that the
Arbitrator decided an issue not submitted. Contrary to the contention
of the Agency, we find that the Arbitrator's award resolved precisely
the issue submitted. As noted, the Arbitrator specifically stated that
if management had failed to make appropriate work adjustments to
accommodate the grievant's representational duties due to union animus,
this failure would constitute a violation of Article 7. Consequently,
we find the Arbitrator's subsequent ruling to be directly responsive to
the stipulated issue of whether the grievant's appraisal was the product
of union animus. See Department of the Air Force, Kirtland Air Force
Base and American Federation of Government Employees, Local 2263,
AFL-CIO, 19 FLRA No. 36 (1985). In other words, we find that the
Arbitrator affirmatively addressed that issue when he expressly
concluded that the grievant's rating was defective because his
supervisor failed to properly deal with the issue of a work adjustment
due to what the Arbitrator termed a compromising of the required
neutrality with respect to representational functions. Thus, the
Agency's focus on the Arbitrator's findings as to Article 13 of the
collective bargaining agreement constitutes nothing more than
disagreement with the Arbitrator's reasoning and conclusions in reaching
the award resolving the issue submitted of whether the appraisal was a
product of union animus. Accordingly, no basis is provided for finding
the award deficient as alleged by the Agency.
IV. SECOND EXCEPTION
A. Contentions
The Agency contends that the award is deficient because the
Arbitrator exceeded his authority by rendering his award in disregard of
a plain and specific limitation on his authority. Specifically, the
Agency argues that the Arbitrator's finding, that the grievant's
supervisor should have made a workload adjustment in connection with the
application of the performance elements and standards to the grievant,
modified the agreement because there is no such requirement or
connection in the actual language of the agreement.
B. Analysis and Conclusions
The Authority concludes that this exception fails to establish that
the award is deficient. We find that this exception constitutes nothing
more than disagreement with the Arbitrator's interpretation and
application of the parties' collective bargaining agreement and, as the
Authority has consistently and repeatedly held, such disagreement
provides no basis for finding the award deficient. U.S. Army Corps of
Engineers, Kansas City District and National Federation of Federal
Employees, Local 29, 22 FLRA No. 15 (1986).
V. THIRD EXCEPTION
A. Contentions
The Agency contends that the award is contrary to management's right
in accordance with section 7106(a)(2)(B) of the Statute to assign work.
Specifically, the Agency argues that the Arbitrator's interpretation and
application of the parties' agreement to find that the grievant's
supervisor should have made a workload adjustment deprives management of
its right to make that determination and interferes with the right to
assign work.
B. Analysis and Conclusions
The Authority has specifically recognized that conflicts, such as in
this case, between employees' entitlements to official time for
representational functions under section 7131 of the Statute and the
entitlements of management under section 7106 can be expected and that
when such conflicts arise, the parties must acknowledge the need for and
seek a reasonable accommodation of the conflict. Department of the Air
Force, Scott Air Force Base, Illinois, 20 FLRA No. 89 (1985), petition
for review filed sub nom. National Association of Government Employees,
Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir. Jan. 7, 1986). In this
regard the parties in this case had negotiated in their collective
bargaining agreement a workload adjustment provision for union
representatives which the Arbitrator enforced in finding that the
grievant's supervisor failed to properly deal with the issue of the
adjustment of the grievant's work. Of course, the Authority has advised
that an exclusive representative cannot negotiate and an arbitrator
cannot enforce a contract provision relating to the allocation of
official time for representational functions without regard to
management needs and requirements regarding the assignment of work.
Id.; see U.S. Army Corps of Engineers, Kansas City District and Local
29, National Federation of Federal Employees, 22 FLRA No. 9 (1986).
However, in this case the Agency has not shown that the Arbitrator's
enforcement of this provision disregards management needs and
requirements regarding its assignment of work. In particular, the
Arbitrator's ruling that the grievant's supervisor failed to properly
deal with the work adjustment issue does not direct what specific work
adjustments must be, or should have been, made. See American Federation
of Government Employees, AFL-CIO, New York-New Jersey Council of
District Office Locals, Social Security Administration and Department of
Health and Human Services, Social Security Administration District
Office Operations, 7 FLRA 413, 417 (1981). Consequently, we conclude
that no basis is provided for finding that the award interferes with the
Agency's right in accordance with section 7106(a)(2)(B) of the Statute
to assign work.
VI. DECISION
Accordingly, for these reasons the Agency's exceptions are denied.
With respect to the Arbitrator's remedy, the Authority notes that under
Bureau of Engraving and Printing, U.S. Department of the Treasury and
Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA
No. 39 (1985), cited by the Arbitrator in his decision, the Arbitrator
properly sustained the grievance and refused to permit the disputed
rating to stand. However, in order for the grievant to have an existing
performance appraisal for the period in dispute, the Arbitrator should
have in addition to voiding the rating directed that the grievant's work
be reevaluated by management. Accordingly, the award is modified to
read as follows:
The overall rating for the grievant on his GPAS plan for the
period ending September 30, 1984 is hereby voided. The Agency is
directed to
reevaluate the grievant's performance for that period
taking into consideration what workload adjustments would have
been made under the terms of the collective bargaining agreement
if the required neutrality with respect to representational
functions had not been compromised by the grievant's supervisor.
Issued, Washington, D.C., July 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY