[ v26 p670 ]
26:0670(82)AR
The decision of the Authority follows:
26 FLRA No. 82
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL COUNCIL OF
SOCIAL SECURITY ADMINISTRATION FIELD
OPERATIONS LOCALS, AFL-CIO
Union
and
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. 0-AR-1288
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Jack Warshaw filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The dispute in this matter arose as a result of a grievance which was
filed and submitted to arbitration concerning the interpretation and
application of Item 5 of the parties' July 1, 1983 Memorandum of
Agreement (MOA) on Teleservice Observation. The MOA was negotiated to
establish guidelines for the Agency's implementation of Service
Observation by which teleservice center (TSC) telephone calls were to be
monitored. Item 5 of the MOA provides:
Employees will be notified that their calls are subject to
Service Observation. Management will ordinarily notify employees
that calls will be subject to Service Observation during their
sample period.
In the arbitration proceeding, the Union argued that the intent of
Item 5 was to require the Agency to provide employees with advance
notification of the sample period during which their telephone calls
would be monitored by a TSC supervisor and to limit Service Observation
to specific sample periods of reasonable duration rather than subjecting
employees to Service Observation at all times during the year. The
Agency agreed that the Union's bargaining objectives were to provide
advance notification to employees and to limit the duration and
frequency of Service Observation. The Agency acknowledged that the
Union obtained entitlement to advance notification in the MOA. However,
the Agency maintained that nothing in the MOA contains any limitation on
the duration and frequency of Service Observation and that it was clear
during negotiations that the sample period could vary from office to
office and could last for a year.
The Arbitrator agreed with the Agency that the parties' MOA does not
require that the sample period be of a specific duration and limited
frequency. He concluded based upon the entire record before him,
including the bargaining history which led to the term "sample period,"
that "with respect to the issue of duration and frequency of service
observation, the parties agreed to accept the practices then in effect
at each TSC." Award at 9.
III. First Exception
A. Contentions
As its first exception the Agency contends that the Arbitrator's
award is based on a nonfact. In support of this contention, the Agency
essentially argues that nothing in the record supports the Arbitrator's
apparent assumption that all teleservice centers had sample periods in
effect which the centers could continue to use.
B. Analysis and Conclusion
We conclude that this exception constitutes nothing more than
disagreement with the Arbitrator's interpretation and application of the
parties' negotiated MOA and with his reasoning and conclusions in
resolving the dispute before him. It is well established that such
exceptions do not provide a basis for finding an award deficient under
the Statute. For example, National Park Service, National Capital
Region, U.S. Department of the Interior and Police Association of the
District of Columbia, 21 FLRA No. 29 (1986); Department of Health and
Human Services, Social Security Administration and Local 3369, American
Federation of Government Employees, 21 FLRA No. 23 (1986).
IV. Second and Third Exceptions
A. Contentions
As its second and third exceptions the Agency contends that the
Arbitrator's award is contrary to section 7106(a) of the Statute. The
Agency makes essentially the same arguments in support of both
exceptions. Specifically, the Agency argues that the Arbitrator's
interpretation of the term "sample period" in accordance with the
practices in effect when the MOA was executed could prevent the Agency
from conducting Service Observation in any center where there was no
sample period practice. The Agency maintains that the award therefore
improperly limits and directly interferes with its rights under section
7106(a) to direct employees by Service Observation and to determine how
an employee's work should be observed for appraisal purposes.
B. Analysis and Conclusion
We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient as alleged. In American Federation of
Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals
and Social Security Administration, 23 FLRA No. 43 (1986) (proposal 1),
petition for review filed sub nom. FLRA v. Social Security
Administration, No. 87-1118 (D.C. Cir. March 8, 1987), we held that a
proposal which established the normal frequency for Service Observation
telephone monitoring was within the duty to bargain under the Statute.
We determined that the criteria in the proposal were illustrative rather
than restrictive and did not inhibit the Agency from employing more
rigorous scrutiny of employees' work when closer review was warranted.
See also American Federation of Government Employees, Local 1760,
AFL-CIO and Department of Health and Human Services, Social Security
Administration, 15 FLRA 909 (1984), rev'd as to other matters, Decision
and Order on Motion for Reconsideration (June 19, 1985) (Proposal 7,
Measuring Productivity).
In this case, as noted above, the Arbitrator found that the MOA does
not require that a sample period be of a specific duration and limited
frequency, and he concluded that the parties agreed to accept the
practices in effect at each TSC. It is clear from the record that both
the Union and the Agency understood that a sample period could vary in
each center and could be as long or as short as appropriate (Agency's
Post-Hearing Brief at 9; Transcript at 56) and that the sample period
in effect at the time of the MOA at the TSCs represented by the Union
was the entire year (Union's Post-Hearing Brief at 4; Transcript at
7-10). Thus, the Arbitrator in resolving the grievance before him
concerning the interpretation of the MOA determined the "sample period"
that normally would be utilized to monitor the telephone calls of
employees subject to Service Observation. By concluding that the
parties accepted the practices then in effect at each TSC, the award
does not prevent the Agency from conducting Service Observation in
centers that did not have a sample period when the parties entered into
their agreement. The award does not address those teleservice centers
where there was no practice in effect at the time of the award and,
therefore, we do not view it as a restriction on the Agency's rights in
those centers. Also, since the award does not by its terms preclude the
Agency from employing a more rigorous scrutiny of employees' work when
the Agency determines that closer review is warranted, we find that the
award does not impose that restriction. Accordingly, we conclude that
the Arbitrator's award does not improperly interfere with management's
rights to direct the workforce by Service Observation and to evaluate
employees under section 7106(a) of the Statute.
V. Decision
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., April 28, 1987.
/s/ Jerry L. Clahoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY