San Antonio Air Force Logistics Center, Kelly Air Force Base, Texas (Activity) and American Federation of Government Employees, Local 1617 (Union)

 7 FLRA No. 84
 
 SAN ANTONIO AIR FORCE
 LOGISTICS CENTER, KELLY
 AIR FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1617
 Union
 
                                            Case No. O-AR-108
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR A. A. WHITE FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/ AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425).
 THE AGENCY FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS DISPUTE AROSE WHEN THE
 UNION SUBMITTED TO THE ACTIVITY A LIST OF STEWARDS WHICH IT HAD
 APPOINTED TO REPRESENT EMPLOYEES IN VARIOUS AREAS OF THE ORGANIZATION.
 FIFTY-EIGHT, OR APPROXIMATELY ONE-THIRD, OF THE STEWARDS APPOINTED WERE
 ASSIGNED TO REPRESENT AREAS OUTSIDE THEIR OWN RESPECTIVE WORK AREAS.
 THERE WAS NO EXPLANATION FOR THE ASSIGNMENTS.  THE ACTIVITY STRUCK THE
 FIFTY-EIGHT NAMES FROM THE LIST OF STEWARDS AND RETURNED THE LIST TO THE
 UNION WITH A LETTER STATING THAT THE NAMES WERE STRICKEN BECAUSE THE
 DESIGNEES DID NOT WORK IN THE AREAS THEY WERE ASSIGNED TO REPRESENT AS
 REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES THAT
 "NORMALLY" STEWARDS WILL BE DRAWN FROM THEIR OWN WORK AREAS.  /2/ THE
 UNION FILED A GRIEVANCE CONCERNING THE ACTIVITY'S REFUSAL TO RECOGNIZE
 THE UNION'S APPOINTED REPRESENTATIVES AND FOR WHAT IT VIEWED AS
 MANAGEMENT INTERFERENCE IN THE INTERNAL AFFAIRS OF THE UNION.
 
    THE ARBITRATOR FIRST STATED THAT HAD THE UNION WISHED TO KEEP THE
 APPOINTMENT OF ITS STEWARDS AS A PURELY INTERNAL MATTER, IT SHOULD NEVER
 HAVE NEGOTIATED ABOUT IT, AND SHOULD NEVER HAVE INCLUDED A TERM OF
 LIMITATION ON THE PROCESS IN THE MUTUALLY AGREED UPON CONTRACT.
 THEREFORE, HE FOUND THAT WHEN THE ACTIVITY OBJECTED TO THE APPOINTMENT
 OF THE 58 STEWARDS AS NOT BEING "NORMALLY" SELECTED FROM THEIR WORK
 AREAS, IT WAS NOT INTERFERING WITH THE UNION'S ULTIMATE RIGHT TO SELECT
 STEWARDS, BUT ONLY WAS REQUESTING THE UNION TO RESPECT THE LIMITATION
 WHICH HAD BEEN MUTUALLY NEGOTIATED.  ALTHOUGH THE ARBITRATOR OBSERVED
 THAT THE ACTIVITY'S STRIKING OF THE 58 NAMES AND RETURNING THE LIST TO
 THE UNION WAS NOT NECESSARILY "THE PREFERABLE THING TO HAVE DONE," HE
 FOUND THAT THE UNION COMMITTED WHAT "APPEARED TO BE" A VIOLATION OF THE
 AGREEMENT BY SUBMITTING THE LIST WITH THE 58 "UNEXPLAINED VARIANCES."
 THEREFORE, HE FOUND THAT THE UNION'S GRIEVANCE RAISED THE SAME ISSUES
 THAT WOULD HAVE BEEN RAISED HAD THE ACTIVITY INITIALLY FILED A GRIEVANCE
 RATHER THAN DISREGARDING THE APPOINTMENTS.
 
    HOWEVER, HE FURTHER DETERMINED THAT THE RECORD CONTAINED INSUFFICIENT
 INFORMATION UPON WHICH TO FIND THAT THE UNION VIOLATED THE AGREEMENT BY
 SUBMITTING THE QUESTIONED LIST.  HE THEREFORE RETURNED THE CASE TO THE
 PARTIES WITH THE FOLLOWING AWARD:
 
    SECTION 4.02 DOES PUT AN EMPLOYER INVOKABLE LIMITATION ON THE FREEDOM
 OF UNION TO APPOINT
 
    STEWARDS;  EMPLOYER HAS JUSTIFIABLY AND ACCEPTABLY RAISED AN ISSUE OF
 THAT LIMITATION HERE, AND
 
    IF UNION WHOLLY FAILS TO PRESENT JUSTIFICATION FOR ITS APPARENT
 VIOLATION OF THE
 
    "NORMALLY" LIMITATION, IT IS HEREBY FOUND TO BE IN VIOLATION AND
 EMPLOYER WOULD NOT HAVE TO
 
    RECOGNIZE THE STEWARDS WHOSE APPOINTMENTS CONSTITUTED THE VIOLATION.
 IF UNION SUBMITS
 
    JUSTIFICATION, THE PARTIES IN GOOD FAITH SHOULD SEEK A NEGOTIATED
 SOLUTION UNDER THE
 
    "NORMALLY" REQUIREMENT.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD VIOLATES
 SECTION 7116(A)(1) OF THE STATUTE /3/ AS AN INTERFERENCE IN THE INTERNAL
 AFFAIRS OF THE UNION.  IN SUPPORT OF ITS EXCEPTION THE UNION ALLEGES
 THAT THE AWARD VIOLATES THE UNION'S RIGHT TO PROVIDE UNION
 REPRESENTATION TO THE UNIT BY MAKING THE DESIGNATION OF UNION
 REPRESENTATIVES SUBJECT TO THE APPROVAL OF THE ACTIVITY AND THAT THE
 AWARD RESTRAINS EMPLOYEES FROM ACTING AS UNION REPRESENTATIVES.
 
    THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE ARBITRATOR'S AWARD DOES NOTHING MORE THAN INTERPRET A
 MUTUALLY AGREED UPON PROVISION IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  THE ARBITRATOR FOUND THAT WHILE THE ACTIVITY DID NOT HAVE,
 AND WAS NOT ASSERTING, A RIGHT TO SELECT UNION STEWARDS, IT DID HAVE A
 RIGHT TO QUESTION WHETHER CERTAIN PROVISIONS OF THE AGREEMENT HAD BEEN
 COMPLIED WITH WHEN 58 OUT OF APPROXIMATELY 170 STEWARDS HAD BEEN
 SELECTED FROM OUTSIDE THEIR WORK AREAS.  THUS HE DETERMINED THAT BY
 AGREEING TO "NORMALLY" SELECT STEWARDS TO REPRESENT A PARTICULAR AREA
 FROM WITHIN THAT AREA, THE UNION HAD COMMITTED AN "APPARENT" BREACH OF
 THE AGREEMENT IN THE CIRCUMSTANCES OF THIS CASE AND DIRECTED THE UNION
 TO PROVIDE AN EXPLANATION FOR ITS ACTIONS.  SUCH AN AWARD, INTERPRETING
 THE AGREEMENT AND DIRECTING THE ACTION ORDERED IN THIS CASE, IS NOT
 CONTRARY TO THE STATUTE.  /4/ THEREFORE THE UNION'S FIRST EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION ALLEGES THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT.  IN SUPPORT OF THIS
 EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR WAS INCORRECT IN HIS
 FINDING THAT THE AGREEMENT IMPOSES A REQUIREMENT ON THE UNION TO PROVIDE
 JUSTIFICATION TO MANAGEMENT WHEN THE UNION SELECTS STEWARDS TO REPRESENT
 AREAS OTHER THAN THEIR OWN WORK AREAS.
 
    THE UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IN THIS CASE DOES
 NOT DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  THE
 ARBITRATOR'S AWARD DEALS SPECIFICALLY WITH THE TERMS OF THE NEGOTIATED
 AGREEMENT AND WITH THE APPLICATION OF THOSE TERMS TO THE FACTS IN THE
 CASE.  THE ARBITRATOR FOUND THAT BY THE EXPRESS TERMS OF THE AGREEMENT
 THE UNION HAD COMMITTED ITSELF TO OBSERVING CERTAIN LIMITATIONS IN THE
 SELECTION OF STEWARDS, I.E., THAT STEWARDS "NORMALLY" WILL REPRESENT
 THEIR OWN WORK AREAS, AND THAT THE UNION HAD MADE STEWARD SELECTIONS
 WHICH APPEARED TO VIOLATE THOSE LIMITATIONS.  THE UNION'S EXCEPTION
 CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S
 INTERPRETATION AND APPLICATION OF THE AGREEMENT PROVISION BEFORE HIM AND
 CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  E.G.,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 148, COUNCIL OF
 PRISON LOCALS AND BUREAU OF PRISONS, U.S. PENITENTIARY, LE