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.