Social Security Administration, Office of Hearings and Appeals, Kansas City and American Federation of Government Employees, Local 1336 (Authority decision, October 30, 1987)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award concerning official time for travel to a union office. Although the grievance alleged an unfair labor practice, the Authority did not decide that allegation. Under 5 U.S.C. § 7123(a)(1), arbitration orders generally are excluded from judicial review unless they involve an unfair labor practice.

Plain-English summary

A union steward at Social Security's Kansas City hearings office received official time for representation work at the union office but had to use lunch time and annual leave to travel there. An arbitrator found no automatic entitlement to official time for the travel under the statute, labor agreement, or proven past practice, and denied the grievance. The union challenged his handling of the evidence. The Authority found no defect in the award and denied the exceptions. It observed that the arbitrator was wrong to say he lacked authority to decide an unfair labor practice claim in a grievance, but no exception raised that error and the Authority took no further action.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); official time under 5 U.S.C. § 7131.
• Outcome: Union exceptions denied; travel-time grievance denial left in place.
• Key point: The arbitrator's unchallenged error about his authority to hear a statutory claim did not change the disposition of the filed exceptions.

Full text (FLRA public release)

[ v29 p1285 ]

29:1285(100)AR

The decision of the Authority follows:

29 FLRA NO. 100
29 FLRA 1285

30 OCT 1987

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
KANSAS CITY, MISSOURI

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336

Union

Case No. 0-AR-1358

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Chandler F. Fizer filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. 1

II. Background and Arbitrator's Award

The grievance arose when the grievant, a Union steward, was granted official time for representational activities in the Union's office but was denied official time for travel to and from the office, which was located in a different building. She was required to use part of her lunch period and 15 minutes of annual leave for the travel. The issue before the Arbitrator was whether the Activity thereby violated the parties' National Agreement and section 7116(a)(1), (5) and (8) of the Statute. The Union alleged that under the Statute, the agreement and a past practice at the Activity, the steward was entitled to official time for the time spent in travel.

The Arbitrator found that the Union steward was not automatically entitled to official time for her travel under section 7131 of the Statute and that the parties' agreement did not provide for official time for the travel. The Arbitrator also determined that the Union failed to establish the existence of a past practice at the Activity of always granting official time for the travel of Union representatives. The Arbitrator noted the Activity's stated policy that it does grant official time to Union representatives for travel to and from the Union office if the representational activity involved cannot be performed at the work site or by telephone. The Arbitrator concluded that the Activity's action was not contrary to section 7131 of the Statute, the parties' agreement or past practice at the Activity. The Arbitrator further found that he was without authority to decide the Union's 7116(a) allegation because such unfair labor practice allegations were for the Authority to adjudicate. Accordingly, as his award, the Arbitrator denied the grievance.

III. Analysis and Conclusions

In its exceptions, the Union contends that the evidence presented to the Arbitrator did not support his Conclusions concerning official time at the Activity. The Union asserts that the evidence established that official time had always been granted to Union stewards for travel and that the Activity unilaterally changed that long-standing practice in this case. The Union further asserts that the Arbitrator ignored or did not properly consider the exhibits and testimony it presented and that his conduct showed that he was biased in favor of the Activity.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases. See, for example, Local 1919, American Federation of Government Employees and Veterans Administration National Cemetery, Farmingdale, Long Island, New York, 12 FLRA 605 (1983) (a contention which merely constitutes disagreement with the arbitrator's evaluation of evidence and testimony provides no basis for finding an award deficient); Veterans Administration and American Federation of Government Employees, Local 997, 8 FLRA 238 (1982) (an assertion that the arbitrator was guilty of misconduct but which constitutes disagreement with the arbitrator's evaluation of the testimony and evidence presented at the hearing and an attempt to relitigate the merits of the grievance before the Authority provides no basis for finding an award deficient). Accordingly, the Union's exceptions are denied.

In denying the exceptions, we note that the Arbitrator erred in finding that he was without authority to decide the Union's allegation that the Activity violated section 7116(a) of the Statute. Section 7103(a)(9) of the Statute defines the term "grievance" broadly to include "any claimed violation . . . of any law . . . ." Thus, an employee or union may allege in a grievance that an agency violated any law, including the Statute. Indeed, section 7123 of the Statute contemplates the arbitration of such grievances by precluding judicial review of Authority decisions in arbitration cases, unless the decision involves an unfair labor practice under the Statute. See, for example, AFGE, Local 1923 v. FLRA, 615 F.2d 612 (4th Cir. 1983); Tonetti v. FLRA, 776 F.2d 929 (11th Cir. 1985); United States Department of Justice, Bureau of Prisons v. FLRA, 792 F.2d 25 (2d Cir. 1986). See also Overseas Education Association v. FLRA and National Treasury Employees Union v. FLRA, 824 F.2d 61 (D.C. Cir. 1987). How-ever, exceptions to the Arbitrator's erroneous finding were not filed and the Authority does not find it necessary in the circumstances of this case to take any action under section 7122(a) of the Statute.

Issued, Washington, D.C., October 30 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 The Union also filed "amended" exceptions. To the extent that such amendment raises new exceptions not raised in its original submission, the exceptions are untimely under section 7122(b) of the Statute and section 2425.1(b) of the Authority's Rules and Regulations and have not been considered.