[ v27 p391 ]
27:0391(54)AR
The decision of the Authority follows:
27 FLRA No. 54
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-1241
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Justin C. Smith 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. The Union filed an opposition.
/1/
II. Background and Arbitrator's Award
This case is one of several in a dispute submitted by the parties to
the Arbitrator essentially concerning official time for employees'
representational activities. By agreement of the parties, a two-phase
arbitration process was established to resolve the basic dispute and the
resulting individual grievances. The first phase of the process
involved the interpretation of the official time provisions of the
Statute and the parties' collective bargaining agreement.
In the second phase, the Arbitrator held hearings to resolve, by
bench decisions when practicable, specific grievances pending in the
various regions of the Agency. The exceptions in this case have been
filed to bench decisions of the Arbitrator rendered on September 10,
1986, related to claims arising in the Agency's regional offices. In
those decisions the Arbitrator generally ruled that by denying official
time and related travel and per diem expenses for Union officials for
the representational purposes involved, the Agency violated the parties'
agreement which had been negotiated consistent with the Statute.
Specifically, the Arbitrator sustained the individual grievances and
awarded reimbursement for wrongfully denied official time at appropriate
straight-time rates for the time spent by the grievants in performing
the representational activities. He also awarded travel and per diem
expenses in some instances and decided a number of issues related to the
overall dispute.
III. First Exception
A. Contentions
The Agency contends that the portion of the award which requires the
Agency to reimburse Stephen Castellina for two hours of leave without
pay and travel and per diem expenses for time spent representing a
former employee in an unemployment compensation hearing is contrary to
section 7131 of the Statute. In support of its contention, the Agency
essentially argues that official time and related travel and per diem
expenses may only be authorized for representational activities in
labor-management relations matters covered by the Statute.
B. Analysis and Conclusion
We agree with the Agency's contention that the Arbitrator's award is
contrary to section 7131. In National Archives Records Administration
and American Federation of Government Employees, Council 236, Local
2928, 24 FLRA No. 29 (1986), we held that while under section 7131(d)
agencies and labor organizations may negotiate official time that is
reasonable, necessary and in the public interest, official time granted
under the negotiated provisions must be used in connection with
labor-management relations activities covered by the Statute. Slip op.
at 4. In this case, there is no indication in the record that Mr.
Castellina's assistance at the unemployment compensation hearing was
related to any labor-management relations activities under the Statute.
We therefore conclude that official time for assisting the former
employee in that proceeding could not be authorized under section
7131(d). See National Archives and Records Administration, slip op. at
3. See also American Federation of Government Employees, Local 2094,
AFL-CIO and Veterans Administration Medical Center, New York, New York,
19 FLRA 1027, 1029 (1985). In his award, the Arbitrator effectively
determined that the Agency had agreed to pay the travel and per diem
expenses related to the labor-management relations activities covered by
the official time provisions of the parties' agreement. Since Mr.
Castellina was not entitled to official time for his assistance at the
unemployment compensation hearing, he is not entitled to receive travel
and per diem expenses. Consequently, to the extent the Arbitrator's
award sustained the grievance and ordered reimbursement for the two
hours of leave without pay taken by Mr. Castellina to assist at the
unemployment compensation hearing and for his related travel and per
diem expenses, it is deficient as contrary to section 7131(d) of the
Statute. /2/
In its opposition the Union asserts that the issue of entitlement
under the parties' agreement to official time for representing unit
employees at employment compensation hearings had been previously
litigated before another arbitrator, Arbitrator Cahn, and resolved in
the Union's favor. The Union further asserts that in an award rendered
on May 26, 1986, Arbitrator Smith approved official time for Union
representative Bigelow to represent an employee at an employment
compensation hearing based on Arbitrator Cahn's award. Thus, since the
Agency did not file exceptions with the Authority to either Arbitrator
Cahn's award or Arbitrator Smith's May 26 award, it acknowledged the
legitimacy of those awards and they should be controlling in this case.
The Union's argument is without merit. It is well established that
an arbitrator's award in one case is without precedential effect on the
outcome of another case. See, for example, San Antonio Air Force
Logistics Center, Kelly Air Force Base, Texas and American Federation of
Government Employees, Local 1617, 7 FLRA 553, 557 (1982).
IV. Second Exception
A. Contentions
The Agency contends that the portion of the award which requires the
Agency to pay travel and per diem expenses and to grant official time
for a number of employees to attend certain Union Local Executive Board
meetings is contrary to the Travel Expense Act, 5 U.S.C. (5701 et seq.,
and section 7131(b) of the Statute. In support of its contention the
Agency argues that the travel was not in the primary interest of the
Government and that the Local Executive Board meetings solely concerned
internal Union business.
B. Analysis and Conclusions
We disagree with the Agency's contention that the Arbitrator's award
is contrary to section 7131(b) of the Statute or the Travel Expense Act.
Section 7131(b) requires that "any activities" by an employee relating
to internal union business must be performed while the employee is in a
nonduty status. Service Employees International Union, Local 556,
AFL-CIO, 17 FLRA 862 (1985). If the Local Executive Board meeting
related to internal union business, within the meaning of section
7131(b) of the Statute, attendance must be on nonduty time, Military
Department of Arkansas, Office of the Adjutant General, Arkansas
National Guard and Local 1671, National Federation of Federal Employees,
23 FLRA No. 12 (1986), and the Arbitrator's award of official time for
such attendance would be modified. However, in its opposition, the
Union establishes that, based on the evidence presented to the
Arbitrator, all claims for official time for meetings which involved
internal Union business were excluded from consideration and that only
those claims for official time for meetings which solely involved
legitimate labor-management relations activities under the Statute, for
example, grievances, were submitted to the Arbitrator. See Union's
opposition at 20-21. Thus, the Agency's arguments constitute nothing
more than disagreement with the Arbitrator's interpretation and
application of the official time provisions of the parties' agreement.
It is well established that such disagreement does not constitute a
basis for finding the award deficient. This exception must be denied.
V. Third Exception
A. Contentions
The Agency contends that the portions of the award which require the
Agency to make Mary Ellen Shea, an elected officer in the Society of
Federal Labor Relations Professionals (SFLRP), whole for travel and per
diem expenses and leave used to attend a SFLRP Executive Board meeting
and regular monthly meetings, and to make Percy Daley whole for leave
used to attend a SFLRP seminar are contrary to section 7106(a)(2) of the
Statute. In support of its contentions, the Agency argues that the
awards require management to assign specific employees to specific types
of training during duty hours in violation of its management right to
assign work and to assign and direct employees. The Agency also
contends that the Arbitrator exceeded his authority.
B. Analysis and Conclusions
As to the award concerning Mr. Daley, we find that attendance at
SFLRP training seminars is an appropriate use of official time under
section 7131 of the Statute and that the Agency has failed to establish
that this award is deficient.
As indicated above with respect to the Agency's first exception,
section 7131(d) of the Statute expressly authorizes the parties to
negotiate for the granting of official time for the performance of
labor-management relations functions. As also noted above, the dispute
submitted to the Arbitrator required the application of the official
time provisions of the parties' agreement to various pending grievances.
In resolving the grievance of Mr. Daley, the Arbitrator determined that
under the parties' official time provisions which were negotiated
pursuant to section 7131(d), the attendance at the SFLRP seminar was an
appropriate activity to be performed on official time.
The Arbitrator's determination is consistent with section 7131. See
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 25 FLRA No.
33, slip op. at 5-6 (1987), request for reconsideration denied, 27 FLRA
No. 22 (1987) (the Arbitrator's award of official time and travel and
per diem expenses to attend union-sponsored labor-management relations
training was consistent with the Statute). As to the Agency's argument
that the award is contrary to section 7106(a)(2) of the Statute, we find
that this argument is without merit. We have previously held that
section 7131(d) "carves out an exception" to management's right to
assign work under section 7106(a)(2) and that official time under
section 7131(d) does not violate management's right to assign work
notwithstanding other provisions of the Statute. Military Entrance
Processing Station, Los Angeles, California and American Federation of
Government Employees, Local 2866, AFL-CIO, 25 FLRA No. 57, slip op. at 4
(1987).
In this case, we likewise hold that the Arbitrator's award of
official time to Mr. Daley does not violate management's right to assign
work, or its rights to assign and direct employees, under section
7106(a)(2) as the Agency alleges. The Agency has also failed to
substantiate its allegation that the Arbitrator exceeded his authority.
However, with regard to the Arbitrator's award concerning Ms. Shea,
we find that attendance at SFLRP Executive Board meetings and regular
monthly meetings is not an appropriate use of official time contemplated
by section 7131 of the Statute. That is, the official time ordered by
the Statute is not authorized under section 7131(d) for the purposes
described. So far as the record indicates, the predominent purposes and
benefits of the meetings appear to concern the SFLRP organization.
There is no showing of the sort of direct relationship between the
meetings and working conditions of employees that would serve to bring
the meetings within the ambit of section 7131. In contrast to
attendance at SFLRP seminars, which provide training on Federal
labor-management relations issues for attendees, SFLRP Executive Board
meetings and regular monthly meetings appear to deal primarily with the
operations of the organization. We conclude that official time for
attending such meetings does not fall within the coverage of section
7131(d). Consequently, the Arbitrator's award of official time and
related travel and per diem expenses for those purposes is deficient and
must be set aside. See National Archives and Records Administration, 24
FLRA No. 29, slip op. at 3; Veterans Administration Medical Center, New
York, New York, 19 FLRA 1027, 1029.
VI. Fourth Exception
A. Contentions
The Agency contends that the portion of the award which requires the
Agency to give Dave Gurule unrestricted use of the office photocopy
machine is contrary to section 7106 of the Statute. The Agency also
contends the award does not draw its essence from the collective
bargaining agreement. The Agency acknowledges that the parties'
agreement provides "the Administration agrees to furnish, where
available, customary and routine services which are consistent with the
best interest of the employer, employees and the union. Such services
include . . . photocopy equipment," and that "it is agreed and
understood that any prior benefit and practices and understanding which
were in effect on the effective date of this agreement at any level . .
. and which are not specifically covered by this agreement and do not
detract from it shall not be changed except in accordance with 5 USC
71." Exceptions at 4. The Agency argues that the Arbitrator's finding
that the parties' past practice allowed the Union unrestricted use of
the office photocopy machine enforces the agreement and the parties'
past practice in such a way as to preclude management from assigning
photocopy duties to employees and to restrict access to its equipment in
the assignment of duties.
B. Analysis and Conclusion
We find that the Agency has failed to establish that the award is
deficient as alleged. It is undisputed that the provisions of the
parties' agreement allow the Union access to the photocopy machine in
accordance with past practice. In his award, the Arbitrator merely
required that the Agency allow Mr. Gurule access to the office photocopy
machine based on the Arbitrator's interpretation of the parties'
agreement and on his finding that the parties' established past practice
allowed the Union unrestricted use of the photocopy machine. Thus, the
thrust of the Agency's exception constitutes nothing more than
disagreement with the Arbitrator's interpretation and application of the
pertinent provisions of the parties' collective bargaining agreement.
It is well established that such disagreement does not provide a basis
for finding an award deficient. Social Security Administration, 25 FLRA
No. 33, slip op. at 5. Accordingly, this exception must be denied.
VII. Fifth Exception
A. Contentions
The Agency contends that the portion of the Arbitrator's award which
requires the Agency to recredit two hours of annual leave taken by
William Bain on Feburary 19, 1986, is contrary to section 7131(d) of the
Statute.
B. Analysis and Conclusion
We find that the Agency has failed to establish that the Arbitrator's
award is deficient as alleged. In this case, the Agency had approved
official time from February 19, 1986, through March 21, 1876, for Mr.
Bain to negotiate a supplemental agreement. February 19 was approved as
his travel day. The record reveals that, between 8:00 a.m. and 10:00
a.m. on February 19, Mr. Bain packed his car with 12 boxes of documents
he needed for the negotiations. At 10:00 a.m. Mr. Bain went to his
office to pick up additional documents needed for the negotiations and
his pay check. The Agency revoked its previous grant of official time
and required Mr. Bain to take annual leave for the two hours between
8:00 a.m. and 10:00 a.m. The Arbitrator by his award effectively found
that the Agency had wrongfully revoked its previous grant of official
time and that under the parties' agreement, Mr. Bain was entitled to the
restoration of his annual leave. The Arbitrator's award requiring the
Agency to recredit the annual leave taken for the period when official
time was wrongfully revoked is not deficient as alleged. See Veterans
Administration Medical Center, Brockton, Massachausetts and National
Association of Government Employees, Local R1-25, 21 FLRA No. 50, slip
op. at 4 (1986). Accordingly, this exception must be denied.
VIII. Sixth Exception
A. Contentions
The Agency contends those portions of the Arbitrator's award which
require the Agency to reimburse Mary Ellen Shea and Charles Stevens for
telephone calls and telegram expenses are deficient because they do not
draw their essence from the parties' collective bargaining agreement,
were made in excess of the Arbitrator's authority, and are contrary to
law and Government-wide regulations, specifically 31 U.S.C. Sections
1348(a)(1), (b) and 1982. In support of its contentions the Agency
argues that no evidence was submitted at the hearing as to the nature of
the calls or the identity of the persons called and incorporated by
reference arguments made in support of similar exceptions to another
award of Arbitrator Smith filed with the Authority and addressed in
Social Security Administration, 25 FLRA No. 12.
B. Analysis and Conclusion
We find that the Agency has failed to establish that the award is
deficient as alleged. Contrary to the Agency's argument, it is apparent
from the record that evidence was submitted to the Arbitrator which
identified the individuals called and established the nature of those
calls as legitimate labor-management activities. Transcript at 155-159,
164-165; Union's Opposition at 22. Thus, as we noted in rejecting the
Agency's arguments in Social Security Administration, 25 FLRA No. 12,
"it is clear that the grievances resolved were integrally related to the
dispute before (the Arbitrator)." Slip of. at 5. It is therefore clear
that the Agency's assertions constitute nothing more than disagreement
with the Arbitrator's resolution of the issues before him and generally
with his interpretation and application of the parties' collective
bargaining agreement. Such disagreement provides no basis for finding
an award deficient under the Statute. Accordingly, this exception must
be denied.
IX. Seventh Exception
A. Contentions
The Agency contends that the portions of the award granting employees
compensation at straight-time rates as a remedy for the wrongfully
denied official time are contrary to section 7131(d) of the Statute
because there was no evidence that the employees actually requested and
the Agency actually denied the requests for official time.
B. Analysis and Conclusion
We find based upon our decision in U.S. Department of Health and
Human Services, Social Security Administration and American Federation
of Government Employees, AFL-CIO, 22 FLRA No. 16 (1986), request for
reconsideration denied (Aug. 15, 1986), that the Agency's argument that
the Arbitrator violated section 7131(d) of the Statute is without merit.
See also Social Security Administration, 25 FLRA No. 33; American
Federation of Government Employees and Social Security Administration,
25 FLRA No. 12 (1987), request for reconsideration denied (Feb. 3,
1987), petition for review dismissed sub nom. Department of Health and
Human Services v. FLRA, No. 87-3808 (4th Cir. April 21, 1987); American
Federation of Government Employees and Social Security Administration,
21 FLRA No. 14 (1986); Social Security Administration and American
Federation of Government Employees, AFL-CIO, 19 FLRA No. 104 (1985). In
this case, the Arbitrator with respect to each bench decision
essentially found that the denial of official time was in violation of
the parties' agreement which had been negotiated consistent with the
Statute. Thus, the Arbitrator effectively found that all of the
conditions of section 7131(d) had been met including that there had been
a wrongful denial of official time. Consequently, the Agency has failed
to establish that the bench awards granting the grievants compensation
for the amount of time performing representational activities which the
Arbitrator ruled should have been performed on official time are
contrary to law. Accordingly, this exception must be denied.
X. Eighth Exception
A. Contentions
The Agency contends that the Arbitrator exceeded his authority
because he ruled on claims which were not part of the grievance before
him. The Agency also asserts that the Arbitrator's authority extended
only to claims filed prior to September 1985 and that in this proceeding
the Arbitrator resolved claims filed in 1986.
B. Analysis and Conclusion
With regard to the Agency's assertion that the Arbitrator exceeded
his uthority because he ruled on claims which were not part of the
grievance before him, it is clear that the grievances resolved were
integrally related to the dispute before him. There is no support in
the record for the contention that the Arbitrator ruled on any matters
which were not before him as part of the overall grievance proceeding.
It is therefore clear that the Agency's assertions constitute nothing
more than disagreement with the Arbitrator's resolution of the issues
before him and generally with his interpretation and application of the
parties' collective bargaining agreement. This disagreement provides no
basis for finding an award deficient under the Statute. Social Security
Administration, 25 FLRA No. 33, slip op. at 7-8; Social Security
Administration, 25 FLRA No. 12, slip op. at 5.
With regard to the Agency's assertion that the Arbitrator exceeded
his authority by ruling on claims which were filed after the date the
Agency asserts is the cutoff date for all claims, we find that the
agency's argument is totally without merit. The Agency has repeatedly
made and the Authority has uniformly rejected this identical assertion
in a number of other cases involving bench awards of the Arbitrator in
this dispute between the parties. U.S. Department of Health and Human
Services, Social Security Administration and American Federation of
Government Employees, 26 FLRA No. 3, slip op. at 5-6 (1987), request for
reconsideration denied, 26 FLRA No. 91 (1987); Social Security
Administration, 25 FLRA No. 33, slip op. at 7-8; Social Security
Administration, 25 FLRA No. 12, slip op. at 4-5; Social Security
Administration, 22 FLRA No. 16, slip op. at 6-7. It remains clear,
despite the Agency's continued contentions to the contrary, that the
Arbitrator was authorized by the parties to resolve claims arising after
the date the Agency asserts is the cutoff date. For the reasons set
forth in the cited decisions, the Agency's exception must be denied.
XI. Decision
For the reasons stated above, the award of travel and per diem
expenses and official time to Stephen Castellina for representing a
former employee at an unemployment compensation hearing and the award of
official time to Mary Ellen Shea to attend SFLRP Executive Board
meetings and regular monthly meetings are set aside. The Agency's
exceptions to other portions of the award are denied.
Issued, Washington, D.C., June 2, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Agency filed a motion to strike certain portions of the
Union's opposition on the grounds that the opposition contains factual
material not otherwise in the record. We find no basis for granting the
motion to strike.
(2) In view of our decision, it is unnecessary to address the
Agency's other exceptions to this portion of the Arbitrator's award.