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57 FLRA No. 85
Social Security Administration Headquarters Baltimore, Maryland and AFGE, General Committee (Sharnoff, Arbitrator), 0-AR-3381 (Decided September 20, 2001)
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement and § 7116(a)(1), (5) and (8) of the Statute when it unilaterally implemented a table of penalties for certain computer system security violations and a banner statement on computer screens regarding computer security. The Authority concluded that the Union failed to establish that the award was deficient.
Preliminarily, the Authority noted that under § 2429.5 of the Authority's Regulations, it will not consider issues that were not presented in the proceedings before the arbitrator. The Authority found that there was no indication in the record that the Union's argument regarding Constitutional due process was raised before the Arbitrator. Thus, the argument was not considered.
As to the award, the Authority found that the Arbitrator's rejection of the Union's "covered by" argument was not contrary to law. The Authority explained that in a grievance alleging an unfair labor practice by an agency, the union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. Here, the allegation was that the Agency could not lawfully implement the Table because this subject was covered by Article 23 of its contract.
The Authority further explained that the "covered by" doctrine is a well established defense to a claim that an agency failed to provide a union with notice and an opportunity to bargain over changes in conditions of employment. In this regard, the "covered by" doctrine excuses parties from bargaining on the ground that they have already bargained and reached agreement concerning the matter at issue. Because the "covered by" doctrine operates as a defense to an alleged unlawful refusal to bargain -- by an agency under § 7116(a)(5) or by a union under § 7116(b)(5) of the Statute -- the Authority found that the Union's reliance on the doctrine in this case was misplaced.
The Authority construed the Union's claim that the Arbitrator failed to resolve its claim that the Table violated Article 23 of the parties' agreement as an exception that the Arbitrator exceeded his authority. In this regard, the Authority found that the Arbitrator resolved the contractual issue as it was presented to him and that therefore he did not exceed his authority.
Also rejected were the allegation that the award failed to draw its essence from the agreement and that the Arbitrator's finding that the Union waived its right to bargain was contrary to § 7116(a)(7) of the Statute. The Authority found that the Union never claimed a right to bargain over implementation of the Table. Accordingly, the matter of whether the Union waived its bargaining right was not at issue.
Lastly, the Authority rejected the Union's argument that the award was contrary to the principles of the Statute because it promoted litigation. The Authority noted that in order to raise a valid contrary to law exception, a party must allege a violation of some specific statutory requirement. Here, the Union failed to identify the provisions of the Statute to which it refered.