American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals and Social Security Administration (Authority decision, April 28, 1987)

Final FLRA decision. The Authority denies SSA’s exceptions to an arbitration award concerning employee notice and the period for monitoring teleservice calls. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator interpreted an agreement governing Social Security Administration monitoring of calls at teleservice centers. He found that the parties had accepted each center’s existing practice for the duration and frequency of monitoring sample periods. SSA argued that the award relied on a false fact and interfered with its right to direct and evaluate employees. The Authority found that the first argument disputed the arbitrator’s interpretation of the agreement and that the award did not bar monitoring at centers without an existing practice or require limits on closer review. It denied SSA’s exceptions.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a) and arbitration exceptions under § 7122(a).
• Outcome: Agency exceptions denied; arbitration award stands.
• Key point: The award’s use of existing monitoring practices did not prevent SSA from monitoring calls or increasing scrutiny when warranted.

Full text (FLRA public release)

[ 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