Parties: IRS and NTEU ID: 51 FLRA 310 / 51 FLRA No. 30 / 51:310(30)AR Date: September 30, 1995 Type: AR Volume: 51 Arbitrator: Ross CaseNo: 0-AR-2490 ========== Synopsis: ========== The Arbitrator found that the Agency s failure to provide the Union home addresses of bargaining unit employees violated the parties' collective bargaining agreements. The Authority concluded that the Agency failed to establish that the award was deficient and denied the exceptions. The Authority noted that the disclosure of requested information was prohibited by the Privacy Act unless it could be shown that disclosure was permitted under an exception to that statute. The Authority further noted that the exception to the Privacy Act relevant to this case was exception (b)(3), which permits disclosure of information for a routine use. 5 U.S.C.  552a(b)(3). In assessing whether this exception applied to the requested information in this case, the Authority noted that it was necessary to examine the pertinent routine use notice published by the Office of Personnel Management (OPM) in connection with its systems of records. The Authority concluded that the Arbitrator did not err, in determining that home addresses were necessary for the Union to perform its representational functions and that there were no adequate alternative means of communication within the meaning of FPM Letter 711-164. Therefore, the Authority concluded that the award was not deficient as inconsistent with the Privacy Act. The Authority construed the Agency's contention that the award violated the parties' agreements as an argument that the award failed to draw its essence from the parties' agreements. The Authority found that the Agency did not demonstrate that the award failed to draw its essence from the collective bargaining agreement. The Authority noted that the Agency's claim was predicated on its view that the agreements allowed disclosure of home addresses only to the extent consistent with law and regulation and that disclosure would be contrary to such authorities. The Authority accepted, for purposes of this decision, the Agency s interpretation of the agreements as requiring consistency with law and regulation. However, because it found that disclosure of the information was not contrary to the Privacy Act, it found nothing in the award to be irrational, implausible, unfounded, or in manifest disregard of the agreements. Therefore, this exception was denied. ***** ***** ***** ***** ***** ***** Parties: Federal Aviation Administration & National Air Traffic Controllers Associartion ID: 51 FLRA 324 / 51 FLRA No. 31 / 51:324(31)CA Date: October 5, 1995 Type: CA Volume: 51 Arbitrator: CaseNo: DA-CA-21171 ========== Synopsis: ========== The complaint alleged that the Respondent violated sections 7116(a) (1), (5) and (8) of the Statute by refusing to furnish the Union with unsanitized copies of performance appraisals and supporting documentation requested under section 7114(b)(4) of the Statute. Upon considering the entire record, the Authority concluded that disclosure of two of the categories of requested information was prohibited by the Privacy Act, 5 U.S.C.  552a. Consistent with the Authority s holding in FAA, 50 FLRA 339 (1995), the Authority concluded that, on balance, the public interest that would be served by disclosure was outweighed by the substantial invasion of employees privacy that would result. Accordingly, the Authority found that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6 and, thus, was prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the information under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute. The complaint was dismissed. ***** ***** ***** ***** ***** ***** Parties: Intl Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission ID: 51 FLRA 333 / 51 FLRA No. 32 / 51:333(32)NG Date: October 13, 1995 Type: NG Volume: 51 Arbitrator: CaseNo: 0-NG-2172 ========== Synopsis: ========== This case concerned the negotiability of six proposals concerning wages for Agency pilots. Proposal 1 provided that, with one exception, the current bonus pay system and tropical differential would be eliminated and replaced with "standard salaries." Proposal 2 provided that, in establishing pilots' compensation, the Agency would abide by the intent of the U.S. Congress in enacting 5 U.S.C.  5348(b), specifying that pilots pay may be adjusted in accordance with the wages and practices of the maritime industry. Proposal 3 required that a joint survey of pilots' wages and practices be conducted every 3 years. The Authority found that Proposals 1, 2, and 3 were not inconsistent with management s rights or any other provision of law and were negotiable. Proposal 5 provided that if a pay cap was imposed on salaries, the Agency would offset any reduction in pay with a contribution to employees retirement plans. The Authority found that the negotiability of Proposal 5 could not be determined because it was substantively affected by a proposal which was not properly before the Authority. Proposal 6 required that pilots pay be adjusted annually in accordance with any cost of living adjustment (COLA) added to the U.S. General Schedule (GS) in addition to the 3-year adjustment determined from the survey in Proposal 3. The Authority found that Proposal 6 was inconsistent with law and, therefore, was nonnegotiable. The Authority found that none of the proposals concerned matters which were specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C), or classification matters within the meaning of section 7103(a)(14)(B) of the Statute. Thus, the Authority found that the proposals in this case were not excluded from the definition of conditions of employment. The Authority severed Proposal 4 from the proposals addressed in this decision, pursuant to section 7117(c)(6) of the Statute and section 2424.10 of its Regulations, to consider it in a separate decision after consideration of further information requested by Authority order issued as of the date of this decision. ***** ***** ***** ***** ***** ***** Parties: SSA Area IX and AFGE Council 147 ID: 51 FLRA 357 / 51 FLRA No. 33 / 51:357(33)CA Date: October 13, 1995 Type: CA Volume: 51 Arbitrator: CaseNo: SF-CA-20035 ========== Synopsis: ========== The Administrative Law Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union and negotiate with it regarding the impact and implementation of the Respondent's decision to detail an employee. Upon considering the Judge's decision and the entire record, the Authority adopted the Judge's findings, conclusions, and recommended Order. ***** ***** ***** ***** ***** ***** Parties: FAA, Federal Aviation Administration Technical Center, Atlantic City Intl. Airport, Atlantic City, NJ and AFGE, 2nd District and NFFE Local 1340 ID: 51 FLRA 377 / 51 FLRA No. 34 / 51:377(34)RO Date: October 23, 1995 Type: RO Volume: 51 Arbitrator: CaseNo: BP-RO-40051 ========== Synopsis: ========== This matter came before the Authority on a motion for reconsideration of the Authority s Order, issued on September 14, 1995, denying the application of the National Federation of Federal Employees, Local 1340 (Labor Organization), for review of the Regional Director s decision and order on objections to an election. The Authority noted that section 2429.17 of the Authority s Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. However, in this particular case, the Authority concluded that the Labor Organization failed to meet the burden of proof required to establish that extraordinary circumstances existed warranting reconsideration of the Authority s decision. Thus, the request for reconsideration was denied. ***** ***** ***** ***** ***** ***** Parties: Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 ID: 51 FLRA 379 / 51 FLRA No. 35 / 51:379(35)AR Date: October 25, 1995 Type: AR Volume: 51 Arbitrator: Smith CaseNo: 0-AR-2596 ========== Synopsis: ========== The Arbitrator issued an award which, as clarified, sustained a grievance disputing the grievant's annual performance rating and raised the rating to "Excellent." The Authority concluded that the clarified award was deficient under section 7122(a) of the Statute and modified it accordingly. Initially, the Authority found that the Union had not demonstrated that the Authority erred in ruling in an order dated March 31, 1994, that the Agency's exceptions were timely. As to the merits, the Authority noted that in the absence of any contentions by the parties that the Arbitrator was not empowered to issue his clarified award, it found that it was appropriate to consider the clarified award in resolving the Agency s exceptions. The Authority concluded that the clarified award was deficient as contrary to law and Authority precedent, specifically SSA I, 30 FLRA 1156 and SSA II, 34 FLRA 323 and cases following those decisions, insofar as it raised the grievant s overall rating from Fully Successful to Excellent and was modified accordingly. The Authority noted that it is well established that when an arbitrator finds that management has applied an employee s established elements and standards in violation of, among other things, a properly negotiated provision of the parties agreement, the arbitrator may cancel the employee s performance appraisal or rating. If the arbitrator is able to reconstruct the evaluation process so as to be able to determine based on the record what the performance appraisal or rating would have been if management had properly applied the employee s established elements and standards, the arbitrator may order management to grant that appraisal or rating. However, if the arbitrator is unable to determine what the rating would have been, he or she must remand the case to management for reevaluation. In this case, the Authority found no basis in the record to support raising the grievant s overall rating to Excellent. The Authority noted that it was uncontroverted that the grievant would have received an overall rating of Excellent only if he is rated Exceeded in more than one-half of his critical elements and meets all other elements. The Authority noted that the Arbitrator did not find that the grievant should have received a rating of Exceeded in more than one-half of his critical elements. Rather, as clarified, the award established only that the grievant should have been rated Exceeded in only two of his six critical elements. Consequently, the Authority found that the portion of the award, as clarified, ordering the Agency to raise the grievant s overall rating to Excellent was deficient as contrary to law, specifically, section 7106(a)(2)(A) and (B) of the Statute. The Authority modified the Arbitrator's clarified award to provide that the Grievant s rating in Job Duty 7 be changed from Fully Satisfactory to Exceeded. The grievant s overall performance rating was Fully Successful. ***** ***** ***** ***** ***** ***** Parties: NAGE Local R5-184 and VA Medical Center, Lexington, KY ID: 51 FLRA 386 / 51 FLRA No. 36 / 51:386(36)NG Date: October 31, 1995 Type: NG Volume: 51 Arbitrator: CaseNo: 0-NG-2224 ========== Synopsis: ========== This case concerned the negotiability of six proposals relating to the Agency s decision to assign, on a rotating basis, dental assistant duties in its Dental Service to dental lab technicians. The Authority concluded that three of the proposals were negotiable at the election of the Agency under section 7106(b)(1) of the Statute: Proposal 2, which required the Agency to move a Full-Time Employee Equivalent position to a particular organizational subdivision of the Agency to provide coverage of the dental assistant duties; Proposal 3, which required the Agency to extend the hours of a part-time dental assistant to provide coverage of the dental assistant duties; and Proposal 6, which provided that any combination of the previous proposals may be used by the Agency to provide coverage of the duties. Pursuant to section 7117(c)(6) of the Statute and section 2424.10 of the Authority s Regulations, the Authority severed Proposals 1, 4, and 5 from the proposals addressed in this decision to consider them in a separate decision if this appeal is maintained with respect to those proposals in response to an Authority order issued today. In this decision, the Authority addressed certain threshold issues involving the relationship between section 7106(a) and section 7106(b)(1) of the Statute and the framework which the Authority will follow to analyze a proposal asserted to be negotiable at the election of an agency under section 7106(b)(1). The Authority noted that some of these issues were raised in Referral of a Major Policy Issue, Case No. O-PS-33 (O-PS-33), filed by the General Counsel of the Authority pursuant to section 2429.4 of the Authority's Regulations and decided today. Order Denying Request for a General Ruling, 51 FLRA No. 37 (1995). According to the General Counsel, the relationship between section 7106(a) and section 7106(b)(1) of the Statute is an issue that has a critical impact in the relationships between agencies and unions and will have ramifications throughout the Federal sector. In examining the Relationship Between Sections 7106(a) and 7106(b) the Authority began with the language of the Statute itself. The Authority noted that pursuant to this provision, an agency s authority to exercise the rights enumerated in section 7106(a) is expressly made subject to section 7106(b). Thus, the Authority noted that the section setting forth the authority of agency management begins with the statement that such authority is limited by subsection (b). Consistent with the statement of this limitation in section 7106(a), section 7106(b) begins with the statement that [n]othing in [section 7106] shall preclude an agency from negotiating over the matters set forth in the three subsections that follow. Thus, the Authority found that this language compeled the conclusion that, where a proposal concerns a matter encompassed within section 7106(b), it is negotiable, consistent with the terms of subsections (b)(1), (2), or (3), even though it may also affect the exercise of authority by a management official to take actions enumerated in section 7106(a). Thus, the Authority further explained that where a proposal addresses matters that come within the terms of both sections 7106(a) and 7106(b)(1), it is subject to negotiation at the election of the agency. The Authority added that the legislative history surrounding the enactment of the Statute, as well as its judicial interpretation support the conclusion that section 7106(b) is indisputably an exception to section 7106(a). In view of the above conclusion, a determination that a proposal is negotiable at the election of the agency under section 7106(b)(1) obviates the need to also analyze the proposal under section 7106(a). Therefore, where, as in this case, parties disagree about which of these sections govern the negotiability of a particular proposal, the Authority held that it will determine initially whether the proposal concerns matters within the subjects set forth in section 7106(b)(1). If it does, the Authority will not address contentions that those matters also affect the exercise of management s authorities under section 7106(a). Conversely, if the Authority concludes that a proposal does not concern matters within the subjects set forth in section 7106(b)(1), it will then proceed to analyze it under the appropriate subsection of section 7106(a). In determining whether a proposal concerns a matter within the subjects set forth in section 7106(b)(1), the Authority noted that it will analyze whether the proposal falls within one of the two categories stated in that section. The first category relates to: I) the numbers, types, and grades; ii) of employees or positions; iii) assigned to any organizational subdivision, work project, or tour of duty. The second category relates to the technology, methods, and means of performing work. The case resolved by this decision involved proposals asserted to be within the subjects in the first category. Finally, consistent with section 2424.10(b) of its Regulations, the Authority dismissed the petition for review as to any proposal that was found negotiable at the election of the Agency under section 7106(b)(1). ***** ***** ***** ***** ***** ***** Parties: General Counsel of the FLRA ID: 51 FLRA 409 / 51 FLRA No. 37 / 51:409(37)PS Date: October 31, 1995 Type: PS Volume: 51 Arbitrator: CaseNo: 0-PS-33 ========== Synopsis: ========== In accordance with section 2429.4 of the Authority s Regulations, the General Counsel has requested the Authority to issue a ruling on the issue of whether matters and proposals which are within the bargaining subjects set forth in section 7106(b)(1) of the Statute are negotiable at the election of agency management at the level of exclusive recognition even though those matters and proposals also may be within the subjects set forth in section 7106(a) of the Statute. The Authority concluded that the issue involved in the General Counsel s request was not appropriate for resolution through the issuance of a general ruling. Accordingly, the involved in the General Counsel s request was addressed by the Authority in its decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA No. 36 (1995) which issued on this same day. ***** ***** ***** ***** ***** ***** Parties: SBA and Robert Wildberger ID: 51 FLRA 413 / 51 FLRA No. 38 / 51:413(38)CA Date: October 31, 1995 Type: CA Volume: 51 Arbitrator: CaseNo: WA-CA-20821, WA-CA-21010, WA-CA-21060 ========== Synopsis: ========== The complaint in Case No. WA-CA-21010 alleged that the Respondent violated section 7116(a)(1) of the Statute by including in a letter of proposed removal references to the employee s protected activity. The complaint in Case No. WA-CA-20821 alleged that the Respondent violated section 7116(a)(1) of the Statute when a supervisor told the employee that he would be denied training and fired if the conflict created by the labor organization the employee formed did not stop. The complaint in Case No. WA-CA-21060 alleged that the Respondent violated section 7116(a)(1) and (2) by treating the employee in a disparate and discriminatory manner because he had engaged in protected activities under the Statute. The Judge recommended that the complaint in Case No. WA-CA-21010 be dismissed on jurisdictional grounds and that the complaints in Case Nos. WA-CA-20821 and WA-CA-21060 be dismissed on the merits. The Authority, however, dismissed all three complaints on jurisdictional grounds. The Authority found that the same factual predicate and legal issues underlined each of the complaints and the employee s appeal of his removal to the Merit Systems Protection Board (MSPB). Pursuant to section 7116(d) of the Statute, the employee was precluded from raising these same issues in an unfair labor practice proceeding. The Authority noted that this consolidated case presented the Authority with an opportunity to reexamine previous Authority precedent interpreting the statutory bar set forth in the first sentence of section 7116(d): Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. The Authority further noted that its review was prompted by the decision of the Fourth Circuit in Commerce, 976 F. 2d 882 (1992) in which the court reversed the Authority s decision in Bureau of Census I, 41 FLRA 436 (1991). In light of the Commerce decision, the Authority explained how it will analyze this type of case in the future. The Authority noted that where an employee has attempted to raise related issues both in an unfair labor practice proceeding and under either an appeals procedure or a negotiated grievance procedure, the Authority will apply the test outlined in Army Finance, 38 FLRA 1345, to determine whether to invoke the jurisdictional bars set forth in section 7116(d). The Authority noted that it will examine the subject matter of the ULP charge to determine if the factual predicate and legal theory are the same as the matter raised in the appeals procedure or grievance. The Authority further stated that in this examination, however, it will no longer follow Bureau of Census I insofar as that decision held that the legal theories upon which an unfair labor practice allegation is based are different from the legal theories underlying a removal proceeding before the MSPB merely because different statutory review provisions are applicable in each instance. Accordingly, the Authority held that when the factual predicate of the ULP and the statutory appeal is the same, and the legal theory supporting the statutory appeal has been or could properly be raised to the MSPB, it will decline to assert jurisdiction over the unfair labor practice pursuant to section 7116(d). Consistent with the above conclusions, the Authority held that it lacked jurisdiction to consider the merits of the unfair labor practice complaints. The Authority found that the issue raised in the ULP charges, were inseparable from the adverse action that was appealed to the MSPB. The same factual predicate supported both the ULP and the MSPB appeal; the legal theory involved--discrimination for protected activity--could properly be and was litigated before the MSPB. ***** ***** ***** ***** ***** ***** Parties: AFGE Local 1843 and VA Medical Center, Northport, NY ID: 51 FLRA 444 / 51 FLRA No. 39 / 51:444(39)AR Date: October 31, 1995 Type: AR Volume: 51 Arbitrator: Raymond CaseNo: 0-AR-2575 ========== Synopsis: ========== The grievant filed a grievance when the Agency rejected his requests for full-time employment. The Arbitrator sustained the grievance and ordered the grievant selected for full-time employment. The Authority concluded that the award was contrary to management s rights to hire and make selections for appointments under section 7106(a) of the Statute. Accordingly, the Authority struck the order that the grievant be selected for full-time employment. The Authority construed the Agency s argument that the Arbitrator s arbitrability determination was founded on an erroneous view of the claim to be resolved as an assertion that the Arbitrator exceeded his authority by resolving an issue that the parties had not submitted to arbitration. The Authority noted that it will find an award deficient as in excess of an arbitrator s authority when the arbitrator resolves an issue not submitted to arbitration. The Authority found that although the Agency claimed that the parties stipulated the issues submitted to the Arbitrator and that those issues did not relate to performance appraisals, the Agency failed to provide any evidence of such a stipulation. In the absence of a stipulation and in light of the Arbitrator s conclusion that the Agency s failure to develop the grievant affected his consideration for full-time employment, the Authority found that the Arbitrator s formulation of the issue did not exceed his authority. Thus, the exception was denied. The Authority found that this case did not concern the grievant s initial appointment into the Federal service and, therefore, did not concern an appointment within the meaning of section 7121(c)(4). Accordingly, the exception was denied. The Authority noted that although section 7121(c)(4) of the Statute precludes grievances over any examination, certification, or appointment, the term appointment in section 7121(c)(4) relates to the initial entry of an applicant into the Federal service. Thus, the Authority concluded that section 7121(c)(4) will not preclude a grievance that does not concern an initial appointment into the Federal service. The Authority construed the Agency s argument that the order that the grievant be selected was logically inconsistent as an assertion that the award was incomplete, ambiguous, or contradictory so as to make implementation impossible. The Authority noted that in order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. The Authority found that the Agency failed to show that implementation of the award was impossible, thus this exception was denied. Lastly, the Authority concluded that the order conflicted with section 7106(a). The Authority noted that it has found remedies deficient as contrary to section 7106(a) when they were based on collective bargaining agreement provisions that did not relate or pertain to the management right affected by the ordered relief. Thus, when a remedy awarded by an arbitrator affects a management right, there must be a sufficient nexus between the management right affected by the remedy and the violation for which the remedy provides relief. In this case, the Authority agreed with the Agency in that the Arbitrator s remedy was based solely on his finding that the Agency failed to properly administer its performance appraisal system because it did not comply with the FPM requirements pertaining to the identification of job elements, the establishment of performance standards, and management s appraisal of employees under performance appraisal systems. In this regard, the Arbitrator cited no source other than the FPM for his determination that outside applicants should not have been selected over the grievant. The Authority noted that it found no evidence of any reliance by the Arbitrator on Article 10, Section 1-A of the parties agreement. The Authority found that the remedy awarded by the Arbitrator, based on his finding that the Agency failed to properly administer its performance appraisal system, affected management s exercise of its rights to hire and make selections for appointments. Consequently, the Arbitrator s order was contrary to management s rights to hire and select under sections 7106(a)(2)(A) and (C) of the Statute, and the Authority modified the award by striking the second paragraph of the portion of the Arbitrator s decision entitled Award.