AFGE New York-New Jersey Council and Social Security Administration (Authority decision, December 23, 1981)

Final FLRA decision. This is a final order of the Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator interpreted a Social Security agreement on official time for grievance vice presidents. The agency excepted to rulings that management ordinarily had to grant the amount the union assessed unless it proved the purpose or amount was improper, and that detailed justification generally could not be required in advance. The Authority found no violation of management's rights to assign or direct work because the award did not dictate when time would be taken. It treated the remaining challenges as disagreement with the arbitrator's contract interpretation and denied all exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2), 5 U.S.C. § 7122(a), 5 U.S.C. § 7131(d).
• Outcome: Agency exceptions denied; official-time interpretation upheld.
• Key point: The award set the amount of official time without controlling its actual scheduling.

Full text (FLRA public release)

[ v07 p413 ]

07:0413(60)AR

The decision of the Authority follows:

7 FLRA No. 60

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, NEW YORK-
NEW JERSEY COUNCIL OF
DISTRICT OFFICE LOCALS,
SOCIAL SECURITY ADMINISTRATION
Union

and

DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
SOCIAL SECURITY ADMINI-
STRATION DISTRICT OFFICE
OPERATIONS
Agency

Case No. 0-AR-212

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR DANIEL HOUSE FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A))
(THE STATUTE).

ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE OVER THE
"INTERPRETATION OF THE LANGUAGE IN THE PARTIES' OFFICIAL TIME ARTICLE
CONCERNING GRIEVANCE VICE PRESIDENTS." /1/

THE ARBITRATOR STATED THE ISSUES BEFORE HIM AS FOLLOWS:

UNDER THE AGREEMENT:

1. (A) DOES THE MANAGEMENT HAVE THE RIGHT TO REFUSE TO GRANT
   "OFFICIAL TIME ON AN AS

NEEDED BASIS" TO A GRIEVANCE VICE CHAIRMAN AS THAT TIME IS ASSESSED
BY THE LOCAL UNION

PRESIDENT? (B) DOES "AS NEEDED" IN SECTION 6(E) MEAN THE SAME THING
AS IT DOES IN SECTIONS

6(A), (B) AND (C)? (C) IS IT INTENDED THAT THE GRANTING OF "BLOCKS
OF TIME" TO A GRIEVANCE

VICE PRESIDENT BY PROHIBITED?

2. MAY THE LOCAL UNION PRESIDENT BE REQUIRED BY MANAGEMENT TO GIVE
   MORE DETAILED

INFORMATION AS TO THE BASIS FOR HIS ASSESSMENT OF THE AMOUNT OF SUCH
OFFICIAL TIME NEEDED FOR

THE GRIEVANCE VICE CHAIRMAN THAN A LISTING OF THE CATEGORIES OF THE
REPRESENTATIONAL FUNCTIONS

HE HAD ASSIGNED TO THAT GRIEVANCE VICE CHAIRMAN?

3. MAY THE LOCAL UNION PRESIDENT ASSIGN, FOR PERFORMANCE ON SUCH
   OFFICIAL TIME,

REPRESENTATIONAL FUNCTIONS OTHER THAN "GRIEVANCE AND EEO COMPLAINTS
AND ACTIONS OF THIS SORT"?

4. DID MANAGEMENT VIOLATE THE AGREEMENT IN FAILING TO ALLOW (THE
   GRIEVANT) THE OFFICIAL

TIME AS SET FORTH IN (THE LOCAL UNION PRESIDENT'S) JANUARY 3, 1980
LETTER? IF SO, WHAT SHALL

BE THE REMEDY?

WITH RESPECT TO ISSUE NUMBER "4," THE ARBITRATOR CONCLUDED:

MANAGEMENT DID NO VIOLATE THE AGREEMENT IN FAILING TO ALLOW (THE
GRIEVANT) THE OFFICIAL

TIME AS SET FORTH IN (THE LOCAL UNION PRESIDENT'S) JANUARY 3, 1980
LETTER.

AS TO ISSUES "1," "2" AND "3," THE ARBITRATOR NOTED THAT THESE WERE
"HYPOTHETICAL" AND THAT HE WAS "RELUCTANT TO GIVE ANSWERS TO QUESTIONS
SUCH AS THESE EXCEPT WHEN THEY ARE PART OF AN ISSUE ARISING OUT OF
SPECIFIC ACTS BY ONE OR THE OTHER PARTY WHICH ACTS ARE CLAIMED TO HAVE
BEEN VIOLATIVE OF AN AGREEMENT." HOWEVER, HE NOTED THAT "THE PARTIES,
EVEN IN THE FACE OF MY EXPRESSED RELUCTANCE DID AGREE THAT THEY WISHED
ME TO GIVE 'FINAL AND BINDING' ANSWERS TO THE QUESTIONS." THEREFORE, THE
ARBITRATOR ADDRESSED EACH OF THE FIRST THREE ISSUES. HIS FINDINGS AND
CONCLUSIONS AS TO ISSUES "A(A)" AND "2" ARE SUMMARIZED AS FOLLOWS: /2/

ISSUE 1(A); THE ARBITRATOR CONCLUDED THAT THE ANSWER WAS "YES" IF
MANAGEMENT COULD PROVE

IN ADVANCE THAT THE PURPOSES FOR THE OFFICIAL TIME DID NOT MEET THE
CRITERIA FOR GRANTING SUCH

TIME UNDER THE AGREEMENT OR THAT THE CARRYING OUT OF THE
REPRESENTATIONAL FUNCTIONS WOULD NOT

TAKE THE AMOUNT OF TIME ASSESSED BY THE UNION. IN INSTANCES WHERE
MANAGEMENT COULD NOT MAKE

SUCH PROOF IN ADVANCE, HE FOUND THAT THE PARTIES' AGREEMENT REQUIRES
THAT THE OFFICIAL TIME BE

GRANTED BY THE ACTIVITY AND THAT ANY ABUSES IN THE USE OF SUCH TIME
BE DEALT WITH AS

PRESCRIBED BY THE AGREEMENT AND AGENCY INSTRUCTIONS.

ISSUE 2: THE ARBITRATOR CONCLUDED THAT IF THE QUESTION PRESENTED BY
THIS ISSUE REFERRED TO

A REQUIREMENT BY MANAGEMENT THAT THE LOCAL UNION PRESIDENT GIVE MORE
DETAILED INFORMATION AS

TO THE BASIS FOR HIS ASSESSMENT OF THE AMOUNT OF OFFICIAL TIME NEEDED
PRIOR TO THE GRANTING OF

THE REQUEST FOR OFFICIAL TIME, THE ANSWER IS "NO." HOWEVER, IF THE
QUESTION REFERRED TO AN

AFTER-THE-FACT REQUIREMENT BY MANAGEMENT IN CONNECTION WITH ITS
"UNDOUBTED RIGHT (AND

OBLIGATION) TO POLICE THE USE OF GRANTED OFFICIAL TIME," THEN THE
ANSWER IS "YES."

THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD ON ISSUES
"1(A)' AND "2" UNDER SECTION 7122(A) OF THE STATUTE /3/ AND PART 2425 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425).

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE DISPUTED PORTIONS
OF THE AWARD VIOLATE SECTION 7106(A)(2)(A) AND (B) OF STATUTE. /4/ IN
SUPPORT OF THIS EXCEPTION, THE AGENCY STATES THAT THE AWARD REQUIRES
THAT MANAGEMENT MUST GRANT OFFICIAL TIME IN THE AMOUNT ASSESSED BY THE
UNION UNLESS MANAGEMENT CAN PROVE THAT THE PURPOSE IS NOT PROPER FOR
OFFICIAL TIME OR THAT THE AMOUNT IS UNWARRANTED. THE AGENCY ARGUES THAT
AN EXTENSION OF THIS AWARD TO ITS LOGICAL CONCLUSION WOULD NEGATE ITS
RIGHT TO ASSIGN AND DIRECT EMPLOYEES AND TO ASSIGN WORK. IN OPPOSITION
TO THIS EXCEPTION, THE UNION CONTENDS THAT SECTION 7131(D) OF THE
STATUTE /5/ PROVIDES THE "AUTHORITATIVE BASE" FOR THE AGREEMENT'S
PROVISION ON OFFICIAL TIME AND THAT THE PROVISION WAS PROPERLY
INTERPRETED BY THE ARBITRATOR.

IN THE CIRCUMSTANCES OF THIS CASE, THE AGENCY HAS NOT ESTABLISHED
THAT THE ARBITRATOR'S AWARD NEGATES ITS RIGHT TO ASSIGN OR DIRECT
EMPLOYEES OR TO ASSIGN WORK. AS HAS BEEN NOTED, THE PARTIES NEGOTIATED
A PROVISION PROVIDING FOR THE AMOUNT OF OFFICIAL TIME THAT THE PARTIES
AGREED WOULD BE GRANTED FOR MATTERS COVERED BY SECTION 7131(D). WHEN A
DISPUTE AROSE OVER THE APPLICATION OF THIS PROVISION, THE PARTIES SOUGHT
THROUGH ARBITRATION AN "INTERPRETATION OF THE LANGUAGE IN THE PARTIES'
OFFICIAL TIME ARTICLE CONCERNING GRIEVANCE VICE PRESIDENTS." THE
ARBITRATOR DETERMINED THAT "MANAGEMENT MUST GRANT OFFICIAL TIME IN THE
AMOUNT ASSESSED BY THE UNION" UNLESS IT COULD PROVE THAT THE PURPOSE WAS
NOT PROPER OR THE AMOUNT WAS NOT WARRANTED. THE AWARD DOES NOT CONCERN
WHEN SUCH OFFICIAL TIME IS ACTUALLY TO BE TAKEN AND DOES NOT CONCERN
WHAT ACCOMMODATIONS, IF ANY, MAY BE NECESSARY BY THE PARTIES IN THE
ACTUAL SCHEDULING OF THE AMOUNT OF OFFICIAL TIME ASSESSED. THEREFORE,
IT HAS NOT BEEN ESTABLISHED THAT THE AWARD INTERFERES WITH THE AGENCY'S
RIGHT TO ASSIGN OR DIRECT EMPLOYEES OR TO ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B), AND NO BASIS IS THEREFORE PROVIDED IN THE
AGENCY'S FIRST EXCEPTION FOR FINDING THE AWARD DEFICIENT.

IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS BASED
ON A NONFACT PRIMARILY BECAUSE THE CENTRAL FACT ASSERTEDLY UNDERLYING
THE AWARD WAS AN AGENCY INSTRUCTION WHICH THE AGENCY STATES HAS BEEN
"OBSOLETE" SINCE 1975. IN ITS THIRD EXCEPTION THE AGENCY CONTENDS THAT
THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT PRIMARILY BECAUSE
THE AWARD ASSERTEDLY CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE
AGREEMENT.

IT IS CLEAR, HOWEVER, FROM A FULL EXAMINATION OF THESE EXCEPTIONS
THAT THE AGENCY IS IN EFFECT DISAGREEING WITH THE ARBITRATOR'S
INTERPRETATION OF THE AGREEMENT. THE AGENCY'S SECOND AND THIRD
EXCEPTIONS, BY ASSERTING FOR VARIOUS REASONS THAT THE ARBITRATOR'S
INTERPRETATION OF THE AGREEMENT IS INCORRECT, PROVIDE NO BASIS FOR
FINDING THE AWARD DEFICIENT. E.G., RED RIVER ARMY DEPOT AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-52, 3 FLRA NO. 32
(1980).

FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., DECEMBER 23, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ PRIMARILY IN DISPUTE WAS SECTION 6(E) OF THE PARTIES' AGREEMENT
WHICH PROVIDES:

E. GRIEVANCE VICE PRESIDENTS WILL BE GRANTED OFFICIAL TIME ON AN AS
NEEDED BASIS FOR

REPRESENTATIONAL FUNCTIONS. SUCH REPRESENTATIONAL FUNCTIONS WILL BE
DETERMINED BY THE LOCAL

PRESIDENT OR HIS/HER DESIGNEE.

/2/ WHILE THE ARBITRATOR ADDRESSED EACH OF THE ISSUES, ONLY HIS AWARD
AS TO ISSUES "1(A)" AND "2" IS IN DISPUTE IN THIS CASE.

/3/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/4/ 5 U.S.C. 7106(A)(2)(A) AND (B) PROVIDE:

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE

AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--

. . . .

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;

(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)

/5/ 5 U.S.C. 7131(D) PROVIDES

(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--

(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR

(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN

APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE,

SHALL BE GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND THE
EXCLUSIVE REPRESENTATIVE

INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND IN THE PUBLIC
INTEREST.