Parties: NFFE Local 1214 and HQ, Army Training Center and Fort Jackson, Fort Jackson, SC ID: 51 FLRA 1362 / 51 FLRA No. 110 / 51:1362(110)NG Date: June 14, 1996 Type: NG Volume: 51 Arbitrator: CaseNo: 0-NG-2216 ========== Synopsis: ========== The Authority found that the provision, which required that disciplinary and adverse actions be based on just cause and be consistently applied, was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority noted that provisions which restrict the range of management action pursuant to a right under section 7106 of the Statute constitute limitations on the exercise of that right and for that reason have been held to directly interfere with the exercise of that right. The Authority also noted that restrictions on an agency s ability to choose the specific penalty that it will impose in a disciplinary action directly interfere with management s right to discipline employees under section 7106(a)(2)(A). However, the Authority held that the provision was an appropriate arrangement because it merely required that the Agency apply discipline equitably and based on just cause. The Authority noted that although the provision required that the Agency consistently apply discipline in an equitable manner, it was silent with regard to specific penalties or to a progressive system for determining disciplinary actions. Thus, the provision allowed the Agency to retain the ultimate right to determine which employees would be disciplined and what discipline would be imposed. Accordingly, the Authority found that the provision did not excessively interfere with management s right to discipline and concluded that it was negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. ***** ***** ***** ***** ***** ***** Parties: DOD, Army and Air Force Exchange Service and AFGE [ Worldwide Consolidated Bargaining Unit ] ID: 51 FLRA 1371 / 51 FLRA No. 111 / 51:1371(111)AR Date: June 14, 1996 Type: AR Volume: 51 Arbitrator: Goodstein CaseNo: 0-AR-2590 ========== Synopsis: ========== The Arbitrator sustained a grievance concerning the use of official time by employees acting as Union representatives. The Authority concluded that the Agency failed to establish that the award was deficient under section 7122(a) of the Statute. The Authority found that the portion of the award concerning union representatives use of agency telephones for representational purposes was not contrary to sections 7106(a)(2)(A) and (B), 7131(d), or 7101 of the Statute. The Authority found that the award concerned matters pertaining to the amount of official time under section 7131(d). The Authority noted that the Agency had not asserted or demonstrated the existence of an emergency or other special circumstances. Consequently, the award did not impermissibly affect management s rights under section 7106(a)(2)(A) and (B). The Authority also found that the award was consistent with section 7101 of the Statute. The Authority noted that the official time provisions of the parties' agreement, as interpreted by the Arbitrator, further the public interest and contribute to effective Government by enhancing the ability of Union representatives to participate in representational activities that promote the resolution of disputes and effective labor-management relations. Thus, the Authority denied this exception. The Authority rejected the Agency s contention that the award failed to draw its essence from the agreement. Rather, the Authority found that the Arbitrator s interpretation was not irational, unreasonable, or implausible, and that the Agency s exception constituted nothing more than disagreement with the Arbitrator's interpretation of the master agreement. The Authority further rejected the Agency's reliance on previous arbitration awards to support its contention that the award failed to draw its essence from the master agreement. The Authority noted that it does not find arbitration awards deficient on the basis that they conflict with previous arbitration awards. The Authority concluded that the arbitrator did not exceed his authority. The Authority noted that an arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. The Authority further explained that when parties do not stipulate the issue, an arbitrator does not exceed his or her authority when the arbitrator formulates and decides the issue. In this case, the parties did not agree on the issues to be arbitrated. Thus, the Arbitrator formulated the issues. The Authority found that the Arbitrator's remedy was responsive to the issues that he formulated and, as such, the award was not deficient. ***** ***** ***** ***** ***** ***** Parties: FAA, Washington, DC and National Air Traffic Controllers Association // [ Dept. of Transportation, Federal Aviation Administration ] ID: 51 FLRA 1385 / 51 FLRA No. 112 / 51:1385(112)AR Date: June 20, 1996 Type: AR Volume: 51 Arbitrator: xxx CaseNo: 0-AR-2671 ========== Synopsis: ========== The Arbitrator sustained a grievance over the Agency s refusal to pay Sunday premium pay to employees who take credit hours or compensatory time on a regularly scheduled Sunday shift. The Authority concluded that the award was contrary to law and, therefore, deficient under section 7122(a) of the Statute. Accordingly, it was set aside. The Authority noted that the statutory basis for Sunday premium pay for ATCSs is 5 U.S.C.  5546(a). Section 5546(a) states that an employee who performs work during part of a regular shift on a Sunday is entitled to receive Sunday premium pay for the entire shift. Employees using credit/comp time are not performing work and, based solely on the language of section 5546(a), are not entitled to receive Sunday premium pay when they use credit/comp time. The Authority found that there was no authority for payment of Sunday premium pay in the circumstances of this case. Therefore, the Arbitrator s award was inconsistent with section 5546(a) and is deficient as contrary to law under section 7122(a). ***** ***** ***** ***** ***** ***** Parties: IRS, Washington, DC and IRS, Oklahoma City District, Oklahoma City, OK and NTEU // [ Dept. of the Treasury, Internal Revenue Service ] ID: 51 FLRA 1391 / 51 FLRA No. 113 / 51:1391(113)CA Date: June 20, 1996 Type: CA Volume: 51 Arbitrator: CaseNo: 76-CA-10959 ========== Synopsis: ========== The complaint alleged that the Respondents violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with performance appraisals for certain bargaining unit and nonbargaining unit employees requested under section 7114(b)(4) of the Statute. The Judge found that the Respondents violated the Statute by failing to furnish the requested performance appraisals, and recommended that the Respondents be directed to furnish the Union with the appraisals sanitized to delete the personal identifiers of the employees involved but annotated to indicate the gender of each employee. Applying the analytical framework of 50 FLRA 661 (1995), the Authority concluded that the Union did not satisfy, in a timely fashion, its burden of articulating and establishing, with specificity, why it needed the information, the uses to which the information would be put, and the connection between those uses and the Union s representational responsibilities under the Statute. Therefore, the Authority concluded that the information requested was not necessary within the meaning of section 7114(b)(4) of the Statute. Accordingly, the complaint was dismissed. ***** ***** ***** ***** ***** ***** Parties: Navy, Fleet and Industrial Supply Center at Norfolk, VA and at Colts Neck, NJ and at Yorktown, VA and AFGE Locals 53, 1659, 2298, 2510 and IAM Local Lodge 97 and NAGE Local R4-1 ID: 51 FLRA 1414 / 51 FLRA No. 114 / 51:1414(114)CU Date: June 24, 1996 Type: CU Volume: 51 Arbitrator: CaseNo: WA-CU-50062, WA-CU-50061, AT-RO-50027, BN-RO-50022, WA-AC-50085 ========== Synopsis: ========== NAGE and AFGE Local 2298 sought review of the Decision and Order of the Regional Director (RD) dismissing their petitions concerning the bargaining unit status of two groups of employees following a reorganization. The RD found that the employees who were the subject of the petitions accreted to the units sought by the petitions for unit clarification (UC) filed by the Activity. In their applications for review, NAGE and AFGE Local 2298 challenged the RD s use of accretion principles in resolving the issues presented by their petitions. In particular, AFGE Local 2298 maintained that the RD failed to apply current Authority precedent for determining successorship, as set forth 50 FLRA 363. In addition, the petitioners maintained that the RD made certain factual findings that prejudicially affected their rights under section 2422.17(c)(4). The petitioners applications also expressed concern that the RD s decision in this case could be affected by an October 1, 1996, reorganization of the Naval Systems Sea Command. The Authority concluded that there were compelling reasons for granting the applications for review in this case under section 2422.17(c)(1) of our Regulations because of the absence of, or a departure from Authority precedent. Therefore, the applications for review were granted, and the parties were directed to file briefs. The Authority further found that the petitioners did not demonstrate that the RD s decision on certain factual issues was clearly erroneous or prejudicially affected the rights of any party under section 2422.17(c)(4) of our Regulations. The Authority denied the applications for review with regard to those matters. ***** ***** ***** ***** ***** ***** Parties: Navy, Naval Supply Center, Puget Sound, Bremerton, WA and Fleet and Industrial Supply Center, Puget Sound, Bremerton, WA and Bremerton Metal Trades Council and AFGE and AFGE Local 1931 ID: 51 FLRA 1419 / 51 FLRA No. 115 / 51:1419(115)CU, AC Date: June 24, 1996 Type: CU, AC Volume: 51 Arbitrator: CaseNo: SF-CU-50071 amd SF-AC-50070 ========== Synopsis: ========== The Activity sought review of the Decision and Order of the Regional Director (RD) granting in part and denying in part its petition concerning the bargaining unit status of two groups of employees following a reorganization. The RD found that one group of affected employees, located at Everett, Washington (Everett Detachment), accreted into the unit sought by the petition for unit clarification (CU) filed by the Activity. The RD concluded that a second group of affected employees, located at Concord, California (Concord Detachment), did not accrete into that unit because the Activity was a successor employer. In its application for review, the Activity challenged the RD s decision with respect to the Concord Detachment employees as inconsistent with Authority precedent and based on an erroneous interpretation of certain facts. The Authority concluded that compelling reasons existed for granting the application for review in this case and the applications in FISC Norfolk under section 2422.17(c)(1) of its Regulations because of the absence of, or a departure from Authority precedent. Therefore, the Authority granted the Activity s application for review. The parties were directed to file briefs. The Authority further found that the petitioner had not demonstrated the RD s decision on certain factual issues was clearly erroneous or prejudicially affected the rights of any party under section 2422.17(c)(4) of the Authority s Regulations, thus the application for review was denied with respect to those matters. ***** ***** ***** ***** ***** ***** Parties: Justice, Federal Bureau of Prisons, Atlanta, GA and AFGE, Council of Prisons, Local 1145 ID: 51 FLRA 1422 / 51 FLRA No. 116 / 51:1422(116)AR Date: June 25, 1996 Type: AR Volume: 51 Arbitrator: Jedel CaseNo: 0-AR-2811 ========== Synopsis: ========== The Arbitrator sustained, in part, a grievance, which alleged that the grievant had performed higher-graded duties without additional compensation. The Authority concluded that the Arbitrator s award was deficient and was set aside. The Authority noted that section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures, and thereby bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. In this case, the Authority concluded that the award did not conflict with section 7121(c)(5) of the Statute, because the issue addressed by the arbitration did not concern the classification of the grievant s position. The Authority found, however, that the award was contrary to the Back Pay Act. The Authority noted that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjust or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant s pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. The Authority further noted that the general rule is that an employee is entitled only to the salary of the position to which the individual is appointed. An exception to this rule exists, which permits compensation for the temporary performance of the duties of a higher- graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-graded positions. This exception establishes a nondiscretionary agency policy which provides a basis for back pay. The Authority found that the Arbitrator determined that the record established that the grievant had performed GS-12 duties. However, the Arbitrator failed to identify any non-discretionary Agency policy set forth in an Agency regulation or a collective bargaining agreement provision which would have entitled the grievant to back pay for performing the duties of a higher-graded position. As such, there was no unjust or unwarranted personnel action which would entitle the grievant to an award of back pay under the Back Pay Act. In the absence of such a finding, there was no basis to sustain an award of back pay. Accordingly, the Arbitrator s award of back pay to the grievant was deficient as contrary to the Back Pay Act. ***** ***** ***** ***** ***** ***** Parties: AFGE and AFGE Locals 1666 & 1931 and VA, Northern CA System of Clinics, Pleasant Hill, CA and Dept. of Veterans Affairs Washington, DC and Dennis C. Partlow, an individual and Bonnie J. Greelman, an individual ID: 51 FLRA 1427 / 51 FLRA No. 117 / 51:1427(117)CA, CO Date: June 27, 1996 Type: CA, CO Volume: 51 Arbitrator: CaseNo: SF-CA-31427, SF-CA-31428, SF-CA-31429, SF-CA-31431, SF-CO-31242, SF-CO-31347, SF-CO-31426, SF-CO-31430 ========== Synopsis: ========== The consolidated complaint alleged that the Agency violated section 7116(a)(1), (2), (3) and (8) of the Statute, and that the Union violated section 7116(b)(1), (2), and (8) of the Statute, by including in their nationwide collective bargaining agreement a provision that interferes with employees rights to freely revoke their dues withholding authorizations. The consolidated complaint also alleged that the Department of Veterans Affairs, Northern California System of Clinics, Pleasant Hill, California (the Activity) violated section 7116(a)(1), (2), (3) and (8) of the Statute, and that Local 1666 and/or Local 1931 violated section 7116(b)(1) and (8) of the Statute, by failing and refusing to provide the Charging Parties, upon their request, with copies of Standard Form 1188 ( Cancellation of Payroll Deductions for Labor Organization Dues ) (SF 1188), and by failing and refusing to process their dues revocation requests. The Judge concluded that all Respondents violated the Statute as alleged. The Authority found: (1) that the Agency and the Union did not violate the Statute as alleged, and dismissed all allegations in the consolidated complaint pertaining to these Respondents (Case Nos. SF-CO-31426, SF-CO-31430, SF- CA-31427 and SF-CA-31431); (2) that the Activity violated section 7116(a)(1) and (8) by failing or refusing to promptly furnish Charging Party Partlow with an SF 1188 dues revocation form; (3) that Local 1931 violated section 7116(b)(1) and (8) by failing or refusing to promptly honor both Charging Parties requests for SF 1188 s, as well as by failing or refusing to promptly process the SF 1188 submitted by Charging Party Greelman; and (4) dismissed the allegations that the Activity violated section 7116(a)(2) and (3). Because it was undisputed by the parties that Local 1666 was merged into Local 1931 on June 1, 1993, and was no longer an active labor organization, the Authority dismissed all allegations pertaining to it. ***** ***** ***** ***** ***** ***** Parties: Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 ID: 51 FLRA 1459 / 51 FLRA No. 118 / 51:1459(118)CA Date: June 28, 1996 Type: CA Volume: 51 Arbitrator: CaseNo: DE-CA-30326 ========== Synopsis: ========== The Authority adopted the Administrative Law Judges finding that the Respondent did not violate section 7116(a)(1) of the Statute by stating at a meeting attended by one of the Union s stewards that employees who file too many or repeated grievances may be exhibiting one of the signs of a troubled employee and could benefit from referral to Respondent s Social Action office for counseling. ***** ***** ***** ***** ***** ***** Parties: INS, Northern Region, Twin Cities, MN and National Border Council, AFGE // [ Justice, Immigration and Naturalization Service ] ID: 51 FLRA 1467 / 51 FLRA No. 119 / 51:1467(119)CA Date: June 28, 1996 Type: CA Volume: 51 Arbitrator: CaseNo: 7-CA-10373 ========== Synopsis: ========== The Authority reiterated that in IRS, Kansas City, 50 FLRA 661, it set forth what would be its analytic approach for determining whether and how information must be disclosed under section 7114(b)(4) of the Statute. Noted, in part, was the requirement that a union requesting information must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection between those uses and the union s representational responsibilities under the Statute. a union s burdens will not be satisfied merely by showing that the requested information is or would be relevant or useful, but that the union must demonstrate that the information is required in order for the union adequately to represent its members. Applying IRS, Kansas City to the facts of the instant case, the Authority determined that the requested disciplinary and adverse action records were necessary, the union having articulated and established a particularized need and the Respondent s arguments not demonstrating that they were not necessary. Accordingly, the Respondent violated the Statute by refusing to disclose that information. As to the remaining requested information, the Authority found that the Union did not articulate and establish a particularized need for exhibits to the Office of Inspector General Report of Investigation mentioned in the Notice of Proposed Removal. Accordingly, the record did not establish that this information was necessary within the meaning of section 7114(b).