AFGE Local 51 and U.S. Assay Office (Authority decision, December 24, 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 resolves arbitration exceptions and does not state that it involves an unfair labor practice.

Plain-English summary

The U.S. Assay Office ordered 28 employees to take fitness-for-duty examinations, and AFGE Local 51 argued that the office had introduced a new practice without bargaining. The arbitrator found that examinations were an ongoing practice and dismissed the grievances. The Authority rejected the union's exceptions because they did not show a legal error or a nonfact that made the award deficient. The award remained in force.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(5), 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; arbitrator's dismissal of grievances upheld.
• Key point: More examination orders did not establish a new practice on this record.

Full text (FLRA public release)

[ v07 p427 ]

07:0427(64)AR

The decision of the Authority follows:

7 FLRA No. 64

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 51
Union

and

U.S. ASSAY OFFICE
Activity

Case No. 0-AR-82

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR GERALD D. MARCUS FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425). THE AGENCY FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN 28
EMPLOYEES WERE REQUESTED TO UNDERGO PHYSICAL FITNESS FOR DUTY
EXAMINATIONS. THE UNION GRIEVED THIS ACTION CLAIMING THAT THE ACTIVITY
VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY FAILING TO MEET AND
CONFER WITH THE UNION PRIOR TO IMPLEMENTING A NEW PRACTICE TO DEAL WITH
A POTENTIAL ABUSE OF SICK LEAVE. THE DISPUTE WAS SUBMITTED TO
ARBITRATION WITH THE FOLLOWING STIPULATED ISSUE:

DID MANAGEMENT HAVE JUST CAUSE TO ISSUE PHYSICAL FITNESS DUTY ORDERS
TO ASSAY OFFICE

EMPLOYEES COMMENCING JUNE 27, 1979, UNTIL THE DATE OF THE HEARING?

IN ADDRESSING THIS ISSUE THE ARBITRATOR FOUND THAT THE ACTIVITY HAD
THE UNQUESTIONED AUTHORITY TO ORDER FITNESS FOR DUTY EXAMINATIONS.
MOREOVER, THE ARBITRATOR CONCLUDED THAT, IN THE CIRCUMSTANCES OF THIS
CASE, ORDERING THE EXAMINATIONS WAS A REASONABLE ACTION IN DEALING WITH
THE PROBLEM OF ABSENTEEISM ON THE PRODUCTION LINE. HE FOUND NO
REQUIREMENT IN EITHER THE AGREEMENT OR LAW WHICH MANDATED THE ACTIVITY
TO CONSULT WITH THE UNION OR TO MEET AND CONFER BEFORE ORDERING AN
EXAMINATION TO DETERMINE WHETHER AN EMPLOYEE IS PHYSICALLY CAPABLE OF
DOING HIS OR HER JOB. THE UNION ARGUED THAT ISSUING 28 ORDERS IN A SHORT
PERIOD OF TIME CONSTITUTED A NEW PRACTICE AND THAT PURSUANT TO THE
COLLECTIVE BARGAINING AGREEMENT THE ACTIVITY SHOULD HAVE CONFERRED WITH
THE UNION PRIOR TO ITS IMPLEMENTATION. HOWEVER, THE ARBITRATOR FOUND
THAT THE ACTIVITY HAD ESTABLISHED A "CONTINUING PRACTICE" OF ISSUING
FITNESS FOR DUTY EXAMINATION ORDERS. HE DETERMINED THAT INCREASING THE
NUMBER OF EMPLOYEES WHO RECEIVE THE ORDERS DOES NOT CHANGE AN ONGOING
PRACTICE INTO A NEW PRACTICE AND CONCLUDED THAT THE ACTIVITY HAD NO DUTY
TO CONFER WITH THE UNION PRIOR TO ISSUING THE ORDERS. HOLDING THAT THE
ACTIVITY HAD "JUST CAUSE TO ISSUE PHYSICAL FITNESS DUTY ORDERS," THE
ARBITRATOR DISMISSED THE GRIEVANCES.

IN ITS FIRST THREE EXCEPTIONS, THE UNION CONTENDS THAT THE
ARBITRATOR'S AWARD VIOLATES 5 U.S.C. 7116(A)(5) /2/ BY RELIEVING THE
ACTIVITY OF ITS DUTY TO BARGAIN. ACCORDING TO THE UNION, THE COLLECTIVE
BARGAINING AGREEMENT CONTAINS A NEGOTIATED METHOD FOR DEALING WITH ABUSE
OF SICK LEAVE, /3/ AND THEREFORE THE ACTIVITY VIOLATED THE STATUTE BY
CHANGING THIS PROCEDURE WITHOUT NEGOTIATING WITH THE UNION.

THE UNION HAS FAILED TO ESTABLISH THAT THE AWARD IS CONTRARY TO LAW.
THE UNION HAS PREMISED ITS FIRST THREE EXCEPTIONS ON THE ASSERTION THAT
THE ISSUANCE OF 28 ORDERS FOR FITNESS FOR DUTY EXAMINATIONS CONSTITUTED
IMPLEMENTATION OF A NEW PRACTICE WHICH, UNDER THE STATUTE, REQUIRED
NEGOTIATIONS BETWEEN THE ACTIVITY AND THE UNION. AS WAS NOTED, HOWEVER,
THE ARBITRATOR SPECIFICALLY CONCLUDED THAT ISSUING THE ORDERS DID NOT
CONSTITUTE A NEW PRACTICE, BUT RATHER THE CONTINUED USE OF AN ONGOING
PRACTICE. THE ARBITRATOR FOUND NO RESTRICTIONS IN THE FEDERAL PERSONNEL
MANUAL AS TO WHEN, OR HOW FREQUENTLY, FITNESS FOR DUTY EXAMINATIONS
COULD BE ORDERED. FURTHER, THE ARBITRATOR FOUND NOTHING UNREASONABLE
ABOUT THE ACTIVITY'S DECISION IN THIS CASE TO ORDER THE EXAMINATIONS
RATHER THAN SEND LETTERS OF REQUIREMENT TO THE EMPLOYEES. IN ITS
EXCEPTIONS THE UNION HAS FAILED TO DEMONSTRATE THAT, CONTRARY TO THE
ARBITRATOR'S FINDINGS AND AWARD, THE ORDERING OF FITNESS FOR DUTY
EXAMINATIONS CONSTITUTED A NEW PRACTICE BY THE ACTIVITY WHICH WOULD
REQUIRE THE ACTIVITY TO NEGOTIATE WITH THE UNION PRIOR TO ITS
IMPLEMENTATION. MOREOVER, TO THE EXTENT THESE ASSERTIONS ARE BASED ON
THE PREMISE THAT THE ISSUANCE OF THE ORDERS WAS A NEW PRACTICE, THEY
CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S REASONING AND CONCLUSIONS
TO THE CONTRARY. SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER
PATROL COUNCIL AND U.S. IMMIGRATION AND NATURALIZATION SERVICE, SOUTHERN
REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980). THEREFORE, THE UNION'S
FIRST THREE EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.
/4/

IN ITS FOURTH EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR BASED
HIS DECISION THAT THE ACTIVITY HAD JUST CAUSE TO ORDER THE PHYSICALS ON
NONFACTS. IN SUPPORT OF THIS CONTENTION THE UNION ASSERTS THAT THE
ARBITRATOR ERRONEOUSLY BELIEVED THAT THE MEDICAL REPORTS FROM THE
EXAMINATIONS WOULD BE MORE DETAILED AND COMPREHENSIVE THAN MEDICAL
SUBSTANTIATION FOR A GIVEN ABSENCE. ADDITIONALLY, THE UNION ALLEGES
THAT THE ARBITRATOR INCORRECTLY FOUND THAT THE ACTIVITY WAS NOT ACTING
IN BAD FAITH AS LONG AS THE PROCEDURE BEING FOLLOWED WAS "PROPERLY
AUTHORIZED."

IN THIS CASE THE UNION HAS NOT DEMONSTRATED THAT THE AWARD IS BASED
ON A NONFACT, THAT IS, THAT THE CENTRAL FACT UNDERLYING THE AWARD IS
CONCEDEDLY ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR
WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED. RATHER, THE UNION'S
ASSERTIONS IN SUPPORT OF ITS EXCEPTION CONSTITUTE DISAGREEMENT WITH THE
ARBITRATOR'S REASONING AND CONCLUSIONS. AS PREVIOUSLY NOTED, THE
AUTHORITY WILL NOT REVIEW AN AWARD WHERE IT APPEARS THE EXCEPTION
CONSTITUTES DISAGREEMENT WITH THE REASONING EMPLOYED BY THE ARBITRATOR
ON THE MERITS OF THE ISSUE BEFORE HIS. THEREFORE, THE UNION'S FOURTH
EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
REGULATIONS.

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

ISSUED, WASHINGTON, D.C., DECEMBER 24, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ 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.

/2/ 5 U.S.C. 7116(A)(5) PROVIDES:

(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--

(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED

BY THIS CHAPTER(.)

/3/ THE UNION REFERS TO SECTION 12-12 OF THE COLLECTIVE BARGAINING
AGREEMENT, WHICH PROVIDES:

AN EMPLOYEE WILL BE NOTIFIED IN WRITING WHEN HIS USE OF SICK LEAVE IS
CONSIDERED ABUSIVE.

/4/ THE UNION ALSO CONTENDED IN ITS THIRD EXCEPTION THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY. HOWEVER, THE UNION PROVIDED NO
ARGUMENTS IN SUPPORT OF THAT CONTENTION WHICH DEMONSTRATE THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY IN ANY MANNER.