Social Security Administration (Agency) and American Federation of Government Employees, Local No. 1923, AFL-CIO (Union) 

 



[ v05 p258 ]
05:0258(33)AR
The decision of the Authority follows:


 5 FLRA No. 33
 
 SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL NO. 1923
 Union
 
                                            Case No. 0-AR-76
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR SEYMOUR STRONGIN FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER INVOLVED AN
 ALLEGATION BY THE GRIEVANT THAT THE AGENCY HAD FAILED TO PROPERLY
 IMPLEMENT THE SMOKING POLICY PROMULGATED AS A REGULATION OF THE
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW).  /1/ THAT REGULATION,
 ISSUED BY THE SECRETARY OF HEW IN JANUARY 1978, PROVIDES IN PERTINENT
 PART:
 
    C.  WORK AREAS
 
    (1) SEPARATION OF SMOKERS AND NON-SMOKERS
 
    IN CONSIDERATION OF THE RIGHTS OF NON-SMOKERS IN WORK AREAS, THEY
 WILL, WITHIN PRACTICAL
 
    LIMITS, BE GIVEN THE OPPORTUNITY TO BE ASSIGNED TO OFFICES OR WORK
 PLACES SEPARATE AND
 
    PHYSICALLY DISTINCT FROM THOSE OF EMPLOYEES WHO SMOKE.  THE FOLLOWING
 PROVISIONS WILL APPLY IN
 
    MAKING THESE DETERMINATIONS:
 
    1 - EFFICIENCY OF WORK UNITS OR ADMINISTRATIVE EFFECTIVENESS SHALL
 NOT BE IMPAIRED.
 
    2 - EXCESSIVE COSTS WILL NOT RESULT FROM PROVIDING PHYSICAL
 SEPARATION.
 
    3 - ADDITIONAL SPACE WILL NOT BE REQUIRED.
 
    (2) IN COMMON WORK AREAS, IN WHICH TWO OR MORE EMPLOYEES ARE
 ASSIGNED, SUPERVISORS WILL
 
    PROHIBIT SMOKING IF AN EMPLOYEE OBJECTS IN WRITING TO TOBACCO SMOKE
 IN THE IMMEDIATE WORK
 
    ENVIRONMENT, ON THE BASIS THAT IT IS HAVING AN ADVERSE EFFECT UPON
 HIS OR HER HEALTH.
 
    FOLLOWING ISSUANCE OF THE HEW REGULATION, THE GRIEVANT SUBMITTED A
 FORM TO HIS SUPERVISOR INDICATING AN "OBJECTION TO TOBACCO SMOKE IN
 (HIS) . . . IMMEDIATE WORK AREA AND . . . REQUEST(ING) THAT SMOKING IN
 (THAT) AREA BE PROHIBITED ON THE BASIS THAT IT (WAS) HAVING AN ADVERSE
 AFFECT ON (HIS) HEALTH." SUBSEQUENTLY, THE AGENCY ISSUED A FORMAL POLICY
 IMPLEMENTING THE REGULATION, AND THE GRIEVANT THEREAFTER REQUESTED THAT:
 
    "NO SMOKING" SIGNS BE POSTED AND SMOKING BE PROHIBITED THROUGHOUT THE
 OPEN-SPACE ROOM TO
 
    WHICH I AM ASSIGNED (I.E., ALL WORK AREAS NOT SEPARATED BY A
 FLOOR-TO-CEILING WALL) . . .  IN RESPONSE TO THE GRIEVANT'S REQUEST HE
 WAS MOVED INTO ANOTHER AREA, AN ADDITIONAL VENT WAS INSTALLED, HIS WORK
 AREA WAS DESIGNATED AS A NONSMOKING AREA, AND NO SMOKING SIGNS WERE
 POSTED NEAR HIS DESK.  A PARTITION SEPARATED THE GRIEVANT'S WORK AREA
 FROM AN AISLEWAY.  THE GRIEVANT, HOWEVER, ASSERTED THAT IN THE ABSENCE
 OF ANY FLOOR-TO-CEILING PARTITION, THE WORK AREA IN WHICH HE IS LOCATED
 IS THE SOUTH QUADRANT OF THE FLOOR ON WHICH HE WORKS AND THEREFORE
 SMOKING SHOULD BE PROHIBITED THROUGHOUT THIS AREA.  THE PARTIES WERE
 UNABLE TO RESOLVE THIS DISPUTE AND IT WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    ACCORDING TO THE ARBITRATOR, THE "ONE FUNDAMENTAL ISSUE" TO BE
 CONSIDERED WAS WHETHER "THE AGENCY COMPLIED WITH THE SECRETARY'S
 REGULATION IN THE SITUATION PRESENTED BY THE GRIEVANCE." IN ADDRESSING
 THIS ISSUE, THE ARBITRATOR FOUND THE CRITICAL PORTION OF THE REGULATION
 TO BE THAT DEALING WITH WORK AREAS.  THE ARBITRATOR FIRST FOUND THAT
 MEMORANDA BETWEEN THE ASSISTANT SECRETARY AND THE SECRETARY OF HEW
 "SEEM
 CLEARLY TO INDICATE THAT THE TYPE OF SPACE REFLECTED IN THE QUADRANT . .
 . IN WHICH THE GRIEVANT WORKS IS CONSIDERED A 'COMMON WORK AREA'" WITHIN
 THE MEANING OF THE REGULATION.  THE ARBITRATOR THEN EXAMINED THE AGENCY
 POLICY WHICH HAD BEEN ISSUED TO IMPLEMENT THE REGULATION AND WHICH
 DEFINED A "COMMON WORK AREA" AS "AN INDIVIDUAL WORK STATION AS DEFINED
 IN THE FEDERAL PROPERTY MANAGEMENT REGULATIONS PLUS ADJACENT WORK
 STATIONS NOT SEPARATED BY A WALL." THE ARBITRATOR FOUND THAT THE
 FIVE-FOOT PARTITIONS INSTALLED AROUND THE GRIEVANT'S DESK "DID NOT
 CONSTITUTE A 'WALL' FOR PURPOSES OF IMPLEMENTING THE REGULATION." IN
 THIS REGARD HE STATED THAT, WHILE THE PARTITIONS MAY CONSTITUTE A "WALL"
 FOR CERTAIN PURPOSES, "FOR PURPOSES OF A REGULATION DESIGNED TO PROTECT
 NON-SMOKERS FROM BEING EXPOSED TO SMOKE CONTAMINANTS IN THE AIR, SUCH
 PARTIAL DIVIDERS ARE PLAINLY INSUFFICIENT BARRIERS TO THE MOVEMENT OF
 THE AIR IN QUESTION."
 
    FINALLY, THE ARBITRATOR ADDRESSED THE PHRASE "IMMEDIATE WORK
 ENVIRONMENT" AS USED IN THE REGULATION.  HE NOTED THAT UNDER THE
 REGULATION AN EMPLOYEE'S OBJECTION MUST BE TO SMOKE "IN THE IMMEDIATE
 WORK ENVIRONMENT" AND THAT IT WAS THIS PHRASE, RATHER THAN THE PHRASE
 "COMMON WORK AREA" WHICH GAVE RISE TO THE GREATEST PROBLEMS OF
 IMPLEMENTATION OF THE REGULATION.  AFTER LOOKING AT A MEMORANDUM FROM
 THE ASSISTANT SECRETARY OF HEW TO THE SECRETARY REGARDING THE PHRASE AND
 TO REMARKS THE SECRETARY HAD MADE ON THE MEMORANDUM, AS WELL AS TO
 "STATEMENTS OR ACTIONS OF OTHERS" RESPONSIBLE FOR THE REGULATION'S
 IMPLEMENTATION, THE ARBITRATOR FOUND "A REASONABLE INTERPRETATION OF THE
 REGULATION" TO BE ONE WHICH EQUATED "IMMEDIATE WORK ENVIRONMENT" TO AN
 ENTIRE OPEN WORK AREA.  BASED ON ALL THIS, THE ARBITRATOR CONCLUDED THAT
 THE AGENCY HAD FAILED TO IMPLEMENT THE REGULATION.  HE HELD THAT THE
 REGULATION "REQUIRES SUPERVISORS TO PROHIBIT SMOKING IN THE COMMON WORK
 AREA IN WHICH (THE) GRIEVANT IS ASSIGNED," AND THAT "(T)HIS AREA APPEARS
 TO CONSIST OF ONE QUADRANT ON ONE FLOOR" OF THE BUILDING IN QUESTION.
 THE ARBITRATOR, THEREFORE, SUSTAINED THIS PORTION OF THE GRIEVANCE.  /2/
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /3/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE UNION FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 AGENCY'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THE AWARD IS CONTRARY AND
 CONTRADICTORY TO THE FACTS ESTABLISHED AT THE HEARING.  TO SUPPORT THIS
 CONTENTION THE AGENCY ASSERTS THAT THE ARBITRATOR "ERRONEOUSLY AND
 INCORRECTLY FOUND THAT 'WORK AREAS' MEANT THE SAME AS 'COMMON WORK
 AREAS,' AS WELL AS THE 'IMMEDIATE WORK ENVIRONMENT,' WHEREAS THE (SOCIAL
 SECURITY ADMINISTRATION) BUILDING MANAGEMENT TRANSMITTAL NOTICE CGS
 SSA-110 CLEARLY DISTINGUISHES BETWEEN WORK AREAS . . . AND COMMON WORK
 AREAS . . . ."
 
    ON ITS FACE, THE AGENCY'S FIRST EXCEPTION, THAT THE AWARD IS
 "CONTRARY AND CONTRADICTORY TO THE FACTS," CONSTITUTES DISAGREEMENT WITH
 THE ARBITRATOR'S FINDINGS OF FACT.  IT IS WELL ESTABLISHED THAT
 ASSERTIONS DISAGREEING WITH AN ARBITRATOR'S FINDINGS OF FACT PROVIDE NO
 BASIS FOR FINDING AN AWARD DEFICIENT.  E.G., DEPARTMENT OF THE AIR
 FORCE, CIVILIAN PERSONNEL BRANCH, CARSWELL AIR FORCE BASE, TEXAS AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1364, 5 FLRA NO.
 7(1981);  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, 2 FLRA NO. 60(1980).  THEREFORE, THE AGENCY'S FIRST EXCEPTION
 PROVIDES NO BASIS FOR FINDING AN AWARD DEFICIENT UNDER 5 U.S.C.  7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS SECOND AND THIRD EXCEPTIONS THE AGENCY CONTENDS THE ARBITRATOR
 DID NOT ADDRESS THE ISSUE PRESENTED TO HIM, BUT RATHER THAT HE
 SUBSTITUTED AND REFRAMED THE ISSUE.  IN SUPPORT OF THIS CONTENTION, THE
 AGENCY ASSERTS THAT THE ISSUE WAS "FRAMED BY THE GRIEVANT . . . AND
 CONCURRED IN BY THE (AGENCY)" AND THAT THE DETERMINATION REQUESTED BY
 BOTH PARTIES WAS "WHETHER OR NOT THE REVISED HEW/SSA SMOKING POLICY WAS
 IMPLEMENTED BY SSA AT ITS HEADQUARTERS COMPLEX . . . ." ACCORDING TO THE
 AGENCY, THE ARBITRATOR, DESPITE THE EVIDENCE PRESENTED, "ARBITRARILY AND
 CAPRICIOUSLY DETERMINED OTHERWISE." THE AGENCY ARGUES THAT THE ISSUE
 ADDRESSED BY THE ARBITRATOR, WHETHER THE AGENCY COMPLIED WITH THE
 SECRETARY'S REGULATION IN THE SITUATION PRESENTED BY THE GRIEVANCE, WAS
 "CLEARLY CONTRARY TO THE INTENTION AND PURPOSE OF THE PARTIES."
 
    THE AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT UNDER SECTION
 7122(A)(2) OF THE STATUTE WHEN THE ARBITRATOR HAS EXCEEDED HIS OR HER
 AUTHORITY.  FOR EXAMPLE, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN
 THE ARBITRATOR EXCEEDS HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT
 INCLUDED IN THE SUBJECT MATTER SUBMITTED TO ARBITRATION.  FEDERAL
 AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION, LOCAL NO. 291, FORT
 WORTH, TEXAS AND FEDERAL AVIATION ADMINISTRATION, FORT WORTH AIR ROUTE
 TRAFFIC CONTROL CENTER, AIRWAY FACILITIES SECTOR, SOUTHWEST REGION, FORT
 WORTH, TEXAS, 3 FLRA NO. 88(1980).  IN THIS CASE, HOWEVER, THE AGENCY
 HAS NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S AWARD IS DEFICIENT
 AS IN EXCESS OF HIS AUTHORITY.  THUS, EVEN ASSUMING THAT THE PARTIES
 JOINTLY STIPULATED AND SUBMITTED TO THE ARBITRATOR THE ISSUE AS STATED
 BY THE AGENCY, THE AGENCY'S EXCEPTION AND SUPPORTING ASSERTIONS PROVIDE
 NO BASIS FOR FINDING THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY
 REPHRASING THAT ISSUE.  IT IS CLEAR FROM THE AWARD AND THE ENTIRE RECORD
 IN THIS CASE THAT THE ISSUE ADDRESSED AND RESOLVED BY THE ARBITRATOR,
 REGARDLESS OF HOW HE PHRASED IT IN HIS AWARD, IS THE VERY ONE PRESENTED
 TO HIM BY THE GRIEVANCE AND ARGUED BY THE PARTIES AT THE ARBITRATION
 HEARING.  THEREFORE, THE AGENCY'S SECOND AND THIRD EXCEPTIONS PROVIDE NO
 BASIS FOR FINDING THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY AND THUS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS FOURTH EXCEPTION THE AGENCY CONTENDS THE ARBITRATOR
 ERRONEOUSLY FOUND THAT THE REQUEST FORMS FILLED OUT BY THE GRIEVANT FOR
 PROHIBITING SMOKE IN THE IMMEDIATE WORK ENVIRONMENT WERE INITIATED BY
 THE AGENCY.  THUS, THE AGENCY ARGUES, "THIS ERRONEOUS FINDING BY THE
 ARBITRATOR LED HIM TO INCORRECTLY CONCLUDE A NON-FACT UPON WHICH HE
 BASED HIS FAULTY CONCLUSION," AND THIS "FALLACIOUS AND ARBITRARY
 DETERMINATION . . . AFFECTED THE RATIONAL OF HIS FINDINGS . . . ."
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE CENTRAL
 FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT IS A
 GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND, 2 FLRA
 NO. 60(1980);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 987 AND WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE,
 GEORGIA, 3 FLRA NO. 89(1980).  IN THIS CASE, HOWEVER, THE AGENCY HAS NOT
 DEMONSTRATED THAT THE CENTRAL FACT UNDERLYING THE ARBITRATOR'S AWARD IS
 HIS ALLEGEDLY ERRONEOUS FINDING THAT THE REQUEST FORM FILLED OUT BY THE
 GRIEVANT WAS AN AGENCY FORM AND THAT BUT FOR THIS FINDING THE ARBITRATOR
 WOULD HAVE REACHED A DIFFERENT RESULT.  THEREFORE, THE AGENCY'S FOURTH
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    IN ITS FIFTH EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
 "MISCONSTRUED AND MISINTERPRETED THE HEW REGULATION AND THE SSA
 ADMINISTRATIVE DIRECTIVE SYSTEM AND/OR TRANSMITTAL NOTICE, GENERAL
 SERIES SSA-110." THE AGENCY ALSO CONTENDS THE ARBITRATOR'S FINDING THAT
 THE AGENCY HAD FAILED TO IMPLEMENT THE HEW REGULATION REQUIRES AN
 EXPANSION AND MISINTERPRETATION OF THE PHRASE "COMMON WORK AREA" AS USED
 IN THE REGULATION, AND THAT SUCH A FINDING COULD CONCEIVABLY PROHIBIT
 SMOKING IN THE ENTIRE BUILDING CONTRARY TO THE WRITTEN INTENTION OF THE
 SECRETARY OF HEW.  FINALLY, THE AGENCY CONTENDS THAT THE ARBITRATOR
 VIOLATED A "GENERAL PRINCIPLE" OF ADMINISTRATIVE LAW BY NOT GIVING
 GREATER WEIGHT TO THE AGENCY'S INTERPRETATION OF ITS OWN REGULATIONS.
 
    IN ESSENCE, THE AGENCY'S FIFTH EXCEPTION CONTENDS THAT THE AWARD IS
 CONTRARY TO REGULATION.  PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE,
 THE AUTHORITY WILL FIND AN AWARD DEFICIENT IF THE AWARD IS CONTRARY TO
 "LAW, RULE, OR REGULATION." WITHOUT DECIDING WHETHER THE REGULATIONS
 CITED BY THE AGENCY IN SUPPORT OF ITS EXCEPTION CONSTITUTE A "RULE OR
 REGULATION" WITHIN THE MEANING OF SECTION 7122(A)(1) OF THE STATUTE, THE
 AUTHORITY FINDS THAT IN THIS CASE THE AGENCY HAS NOT DEMONSTRATED THAT
 THE AWARD IS CONTRARY TO THE REGULATIONS.
 
    THE AGENCY'S CONTENTIONS ARE FOUNDED ON THE ARBITRATOR'S ALLEGED
 "MISINTERPRETATION" OF THE HEW REGULATION.  HOWEVER, IT IS NOTED THAT IN
 HIS AWARD, IN DETERMINING WHETHER THE AGENCY HAD COMPLIED WITH THE HEW
 REGULATION, THE ARBITRATOR SPECIFICALLY ADDRESSED WRITTEN STATEMENTS OF
 THE SECRETARY OF HEW REGARDING THE REGULATION AND FOUND THESE STATEMENTS
 TO BE "A REASONABLE INTERPRETATION OF THE REGULATION." HE ALSO FOUND
 THIS INTERPRETATION TO BE SUPPORTED BY THE "STATEMENTS OR ACTIONS OF
 OTHERS RESPONSIBLE FOR ITS IMPLEMENTATION." THUS, IT IS CLEAR THAT
 RATHER THAN "MISINTERPRETING" THE REGULATION, THE ARBITRATOR APPLIED
 WHAT HE FOUND TO BE THE SECRETARY OF HEW'S INTERPRETATION.  AS TO THE
 AGENCY'S HYPOTHECATION THAT, CONTRARY TO THE SECRETARY OF HEW'S WRITTEN
 INTENTION, THE AWARD COULD RESULT IN THE PROHIBITION OF SMOKING IN THE
 ENTIRE BUILDING, SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING THIS
 AWARD, DEALING WITH THE GRIEVANT AND THE QUADRANT IN WHICH THE GRIEVANT
 WORKS, CONTRARY TO REGULATION.  THEREFORE, THE AGENCY'S FIFTH EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE DISPUTE IN THIS MATTER AROSE PRIOR TO THE REDESIGNATION OF
 THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE AS THE DEPARTMENT OF
 HEALTH AND HUMAN SERVICES.
 
    /2/ THE ARBITRATOR DID NOT SUSTAIN THAT PORTION OF THE GRIEVANCE
 WHICH SOUGHT "TO HAVE THE LOBBIES, RESTROOMS, CORRIDORS, CAFETERIA, AND
 DINING AREAS DECLARED 'NO SMOKING' AREAS."
 
    /3/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT R