[ v27 p706 ]
27:0706(78)AR
The decision of the Authority follows:
27 FLRA No. 78
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-1239
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.
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 9,
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 Arbitrator's specific bench awards
related to the official time dispute are contrary to law. The Agency
alleges that the Arbitrator violated: (1) the Arbitration Act, 9 U.S.C.
Section 10(a), by denying its motion to remove those claims which the
Agency had agreed to pay from the arbitration process and by ordering
that the Agency could not receive copies of exhibits submitted by the
Union at the hearing; (2) the Travel Expense Act, 5 U.S.C. Section 5701
et seq., and decisions of the Comptroller General by ordering Mary Ellen
Shea to be reimbursed for telephone calls and photocopying expenses,
incorporating by reference arguments made in support of similar
exceptions to another award of Arbitrator Smith filed with the Authority
and addressed in 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. 87-3803 (4th
Cir. April 21, 1987); (3) section 7131(d) of the Statute by awarding
straight time as a remedy for wrongfully denied official time because
there were no requests for or denials of official time for the Union
representatives prior to their working on their personal time; and (4)
section 7114(b)(4)(C) of the Statute by ordering the Agency to provide
documents to the Union which constitute guidance, advice, counsel, or
training for management officials or supervisors relating to collective
bargaining, grievances, specifically information concerning how to
implement awards of Arbitrator Smith and how to deal with Union requests
for official time.
B. Analysis and Conclusion
We find that the four grounds asserted by the Agency for finding the
awards contrary to law are without merit. More specifically:
(1) We find that the Agency has failed to establish that the
Arbitrator's award is contrary to the Arbitration Act. In this regard,
as we have stated in resolving similar exceptions of the Agency in other
cases, arbitration in the Federal sector is governed by the provision of
the Federal Service Labor-Management Relations Statute and not the
provisions of the Arbitration Act. Social Security Administration, 25
FLRA No. 12, slip op. at 5. Further, even if the Arbitration Act were
applicable, with regard to the Agency's assertion that the Arbitrator
violated section 10(a) of the Act by denying its motion to remove
certain claims from the arbitration process, it is clear from the record
that the Arbitrator denied this motion based upon the Agency's inability
to document its assertion that the disputed claims had in fact been paid
and the Agency's refusal to abide by the Arbitrator's awards and to make
individuals involved in this protracted dispute whole for wrongfully
denied official time and related travel and per diem expenses.
Transcript (Tr.) at 39-41; Union opposition at 9-12. Thus, it is clear
from the record that the Agency has failed to establish that the
Arbitrator violated law by denying the Agency's motion and adjudicating
the numerous individual grievances and ancillary issues.
As to the Agency's assertion that the Arbitrator violated 9 U.S.C.
Section 10(a) by allegedly ordering that the Agency could not receive
copies of the Union's exhibits submitted at the hearing, it is clear
from the record that prior to the first phase of the arbitration the
parties agreed that exhibits would be exchanged at the hearing and that
during the time in which the Agency participated in the hearing, it
received copies of all the exhibits submitted by the Union, and that all
exhibits were read into the record. Tr. at 75-81; Union opposition at
14-15. Thus, the Agency has failed to establish that the Arbitrator's
ruling violates law.
Moreover, the thrust of the Agency's exception is that it was denied
a fair hearing and disagrees with the manner in which the Arbitrator
conducted the hearing. It is well established that an arbitrator has
considerable latitude in the conduct of a hearing. The fact that the
Arbitrator conducted the hearing in a manner which one party finds
objectionable does not support a contention that the Arbitrator denied
the party a fair hearing. U.S. Department of Health and Human Services,
Social Security Administration and American Federation of Government
Employees, Local 547, 24 FLRA No. 93 (1986). Accordingly, this
exception must be denied.
(2) We find that the Agency has failed to establish that the
Arbitrator's award is contrary to the Travel Expense Act and decisions
of the Comptroller General. 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 op. 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. For example, id.; American
Federation of Government Employees, Local 1923 and Social Security
Administration, Bureaus and Offices, 12 FLRA 511 (1983); General
Services Administration and American Federation of Government Employees,
Council 236, 15 FLRA 328 (1984); Department of Health and Human
Services, Social Security Administration and Local 3369, American
Federation of Government Employees, 21 FLRA No. 23 (1986). Accordingly,
this exception must be denied.
(3) 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 has failed to
establish that the Arbitrator violated section 7131(d) of the Statute.
See also Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
27 FLRA No. 54 (1987); Social Security Administration, 25 FLRA No. 33;
Social Security Administration, 25 FLRA No. 12; 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 in each bench decision effectively 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 and 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.
(4) We find that the Agency has failed to establish that the
Arbitrator's award directing the Agency to provide certain memoranda in
the proceeding violates section 7114(b)(4)(C) of the Statute. The
Agency argues that the memoranda constitute advice and guidance to
managers and supervisors within the meaning of section 7114(b)(4)(C)
and, therefore, that it cannot be required to provide the information.
We find that the Agency's argument is without merit.
At the hearing on September 9, 1986, the Agency moved that the
Arbitrator cancel the hearing on the ground that the employees' claims
which were the subject of the hearing had been or would be paid. Tr. at
14-16. The Agency asserted that a letter or memorandum instructing its
Regional Offices to pay employee claims for reimbursement at straight
time rates had been provided to the Arbitrator and to the Union. Tr. at
7-12. The Agency also indicated that copies of memoranda from the
Regional Offices documenting the payment of claims had been or would be
sent to the Union. Tr. at 13, 44.
In response, the Union disputed the Agency's assertions. The Union
maintained that it had not received copies of the Agency's memoranda or
documentation. Tr. at 8-9. The Union also argued that while the Agency
had asserted throughout the entire arbitration proceeding that it was
abiding by the official time provisions of the parties' agreement and
the Arbitrator's bench awards, the Agency was not complying and the
employees were not being paid. Tr. at 24-29, 35-38, 43-44, 46-60,
62-66. The Union also contended that the Agency had issued memoranda to
managers concerning implementation of the Arbitrator's awards in this
matter and instructions regarding the handling of official time claims.
The Union requested that the Arbitrator order the Agency to produce
copies of those memoranda. In ruling on the Agency's motion and the
Union's request, the Arbitrator ordered the Agency to produce the
memoranda described by the Union. Tr. at 45. When the Agency refused
to produce the documents, and maintained that it would continue to
refuse to produce the documents, the Arbitrator denied the Agency's
request to cancel the hearing. Tr. at 41, 45.
It is well established that once the parties to a collective
bargaining agreement "submit the subject matter of a dispute to
arbitration, 'procedural' questions which grow out of the dispute and
bear on its resolution should be left to the arbitrator." John Wiley and
Sons v. Livingston, 376 F.2d 543, 577 (1963). Moreover, under this
principle, an arbitrator has authority to rule on procedural matters
such as requests for discovery of information. See Great Scott
Supermarkets, Inc. v. Local Union No. 337, International Brotherhood of
Teamsters, 363 F. Supp. 1351 (1972). Thus, it is properly the function
of an arbitrator to determine the relevance and materiality of documents
and other evidence requested by a party in a proceeding and whether
production should be ordered.
In this case, the procedural question regarding production of the
Agency's memoranda grew out of the dispute as to whether employees'
official time and related travel and per diem expenses had been or were
being paid as the Agency asserted or whether the Agency had improperly
instructed its managers not to implement the Arbitrator's awards and to
deny employee claims as the Union contended. The memoranda therefore
had a direct bearing on the resolution of that aspect of the parties'
dispute. The Union did not request the memoranda and the Arbitrator did
not order the Agency to produce them under section 7114(c)(4) of the
Statute. The Union sought discovery of the documents to establish facts
in the proceeding concerning the Agency's compliance or noncompliance
with the Arbitrator's awards. The Arbitrator in essence simply
determined that they were relevant and material to resolution of the
dispute. The Agency as a party to the proceeding was subject to such
rulings by the Arbitrator. The Agency has not shown that the
Arbitrator's ruling is contrary to law, as alleged. Accordingly, this
exception must be denied.
III. Second 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 and which were filed after the date the Agency asserts is the cutoff
date for all claims.
B. Analysis and Conclusion
We conclude that the Agency has failed to establish that the
Arbitrator exceeded his authority.
With regard to the Agency's assertion that the Arbitrator exceeded
his authority 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. As noted above, such
disagreement provides no basis for finding an award deficient under the
Statute. See also 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. Social Security Administration, 27
FLRA No. 54, slip op. at 10-11; 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 contention 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. The Agency's exception
therefore must be denied.
IV. Third Exception
A. Contentions
The Agency contends that the Arbitrator's specific bench decisions on
the official time dispute do not draw their essence from the collective
bargaining agreement on two grounds: (1) by ordering the Agency to
reimburse Mary Ellen Shea for postage, telephone calls, and photocopying
expenses because the collective bargaining agreement restricts the
Union's right to use Agency facilities without cost; and (2) by
ordering the Agency to reimburse trainees for expenses resulting from
Union-sponsored training because it was rendered without regard to
fiscal considerations.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the
Arbitrator's awards fail to draw their essence from the parties'
collective bargaining agreement. In his awards the Arbitrator
interpreted the relevant provisions of the parties' agreement to cover
the expenses contested by the Agency in its exception. Thus, the
exception constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of the parties' collective
bargaining agreement in resolving the dispute before him and are an
attempt to relitigate the merits of the dispute before the Authority.
Consequently, this exception does not provide a basis for finding the
award deficient and must be denied. See Social Security Administration,
25 FLRA No. 12, slip op. at 5; Social Security Administration, 25 FLRA
No. 33, slip op. at 4-5; Social Security Administration, 27 FLRA No.
54, slip op. at 8-9.
V. Decision
Accordingly, for the reasons stated, the Agency's exceptions are
denied.
Issued, Washington, D.C. June 25, 1987.
/s/ Jerry A. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY