Bigelow v. Department of Health and Human Services

• Decision Date: 19 December 1984
• Docket Number: Nos. 84-918,84-927,s. 84-918
• Citation: 750 F.2d 962
• Parties: 120 L.R.R.M. (BNA) 2319 Kirk BIGELOW, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Joseph HIGGINS, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 962

750 F.2d 962

120 L.R.R.M. (BNA) 2319

Kirk BIGELOW, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

Joseph HIGGINS, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

Appeal Nos. 84-918, 84-927.

United States Court of Appeals Federal Circuit.

Dec. 19, 1984.

Gay Snyder, New Brunswick, N.J., argued for petitioner. With him on the brief was Mark D. Roth, Washington, D.C., of counsel.

J. Weili Cheng, Washington, D.C., Dept. of Justice, argued for respondent. With him on the brief were Richard K. Willard, Acting Atty. Gen., David M. Cohen, Director, and Robert A. Reutershan, Washington, D.C.

Before FRIEDMAN, DAVIS and BALDWIN, Circuit Judges.

FRIEDMAN, Circuit Judge.

These petitions for review challenge two arbitrators' awards (1) upholding the Social Security Administration's (Administration) suspension of the petitioners, and (2) reversing the discharges of the petitioners and reinstating them without backpay. Both cases present the same issues on substantially identical facts, and we decide them in a single opinion. We affirm both awards.

I

Kirk Bigelow and Joseph Higgins were employed by the Administration as claims representatives. They had been active as union representatives since 1975. In December 1981, Bigelow was elected Executive Vice President of a Local that represented more than 3,000 Administration employees in the New York City area. Higgins became First Grievance Vice President of the Local around the same time. As union officials, the petitioners handled grievances, arbitrations, negotiations, and other representational work for the Local.

Under the regional collective bargaining agreement, Bigelow, as Executive Vice President, was entitled to spend 50 percent of his time on union activities, and Higgins was entitled to devote as much time as he needed to union affairs. Until June 1982, they routinely had been permitted to spend all their time on union activities.

The Administration and the union negotiated a new national agreement that superseded the regional agreements on June 11, 1982. Article 30 of the national agreement contained general provisions governing official time for union representatives. In addition, a side-bar agreement, signed on December 21, 1981, covered official time positions in specific regions. The side-bar agreement provided in pertinent part:

[T]here will be four (4) 100% positions in New York/New Jersey, in lieu of the past practice on 100% positions .... Those positions which hereafter are not 100% per se will be governed by provisions of Article 30 of the Master Agreement.

Article 30 provided, among other things, that "union officials, when not engaged in authorized labor-management activities, are expected to accomplish the duties of the position to which they have been assigned."

The presidents of the four Locals in the region were assigned to the four 100 percent positions under the side-bar agreement. Bigelow was granted 50 percent official time for union activities, and both petitioners were eligible for additional "reasonable" official time for those activities when requested in advance on Form SSA-75, as the agreement provided.

The petitioners continued to use all of their time for union business. Neither petitioner did any agency work after 1981.

After the national agreement was executed in June 1982, the Administration did not grant all of the petitioners' requests for additional official time. It insisted that they submit the proper forms specifying the nature of their union business that required such time. When denied official time, the petitioners usually then requested leave without pay (LWOP), which the Administration also sometimes denied.

The Administration ordered the petitioners to participate in a refresher training program so they could resume their agency work when not engaged in union activities. The petitioners refused to participate in the training, asserting that they were required to spend all their time on union activities. The Administration marked both petitioners absent without official leave (AWOL) in several instances and suspended them for five days for being AWOL and insubordinate. When they persisted in this refusal, the Administration discharged them early in 1983.

The Administration's denial of LWOP was the subject of a separate earlier grievance by the Local. Arbitrator Walter Eisenberg upheld the Local's position and ordered the Administration to specify the basis for future denials of LWOP and to change to LWOP all AWOL charges for "incorrect denials" of LWOP. With respect to the petitioners here (and one other employee), the Arbitrator provided that "any conversion of AWOL charges to LWOP charges hereby required shall not be construed to constitute a finding as to the conduct of any of these three employees in the circumstances pertaining to any particular AWOL charge ...." AFGE Local 3369 v. Department of Health and Human Services, No. 82K-09368 (Fed. Mediation & Conciliation Service, June 11, 1983) (Eisenberg, Arb.).

In separate grievance proceedings brought by each of the petitioners, two arbitrators (one of whom was Mr. Eisenberg) each independently upheld the suspensions but reversed the removals and ordered the petitioners reinstated without backpay. Both arbitrators rejected the petitioners' contention that they were entitled to 100 percent official time under the national agreement. The arbitrators pointed out that the petitioners did not hold one of the four positions for which 100 percent official time was provided, and that the petitioners therefore could obtain official time for union activities only by requesting such time on Form SSA-75.

The arbitrators ruled that the Administration's order to participate in a training program was valid and did not interfere with the petitioners' union activities. The arbitrators held that the prior Eisenberg decision converting AWOL to LWOP did not retroactively validate the petitioners' insubordination in disobeying the orders to retrain, rejecting the petitioners' contention that under that decision the petitioners were not in a duty status when they refused the retraining.

II

The petitioners challenge the arbitrators' awards sustaining the Administration's orders directing them to retrain on two grounds: (A) that under the collective bargaining agreement they were entitled to spend all of their time on union business and therefore could not be required to retrain; and (B) that the award by arbitrator Eisenberg converting AWOL to LWOP meant that they were not in a duty status when ordered to retrain. They contend that since the training order thus was improper, they were not insubordinate in refusing to obey it.

A. Prior to the 1982 national agreement and the earlier side-bar agreement, the petitioners had spent all of their time on union affairs. Apparently relying on the provision in the national agreement that "any prior benefits and practices and understandings which were in effect on the effective date of this agreement at any level (national, council, regional and local), and which are not specifically covered by this agreement and do not detract from it shall not be changed ..." (article 1, section 2), they contend that after the national agreement was executed, they were entitled to continue to spend all their time...