27:0028(6)AR - SSA, New York Regional Office and AFGE Local 3369 -- 1987 FLRAdec AR
[ v27 p28 ]
The decision of the Authority follows:
27 FLRA No. 6 SOCIAL SECURITY ADMINISTRATION NEW YORK REGIONAL OFFICE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3369, AFL-CIO Union Case No. 0-AR-1258 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Robert T. Simmelkjaer filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. II. Background and Arbitrator's award The grievance in this case concerned the distribution of a Union bulletin entitled "Woodcox Guilty of Fourth Unfair Labor Practice." and the interpretation of the following contract provision: Article 12, Communications Section 2 -- Distribution of Union Publications A. Official publications of the Union may be distributed on SSA property by union representatives during the non-duty time of the union representatives who are distributing and the employees receiving the materials. Distribution shall not disrupt operations. All such materials shall be properly identified as official union issuances. Materials distributed will not malign the character of any Federal employee. The Agency contended before the Arbitrator that the Union violated Article 12, Section 2A when it distributed the bulletin because it contained false material which maligned the character of Jefferson Woodcox, the Agency's District Manager. The Union maintained, in essence, that Article 12, Section 2A had been unfairly imposed by the Agency during negotiations and that the provision violates the constitutional and statutory rights of Union officials and unit employees regarding the distribution and receipt of Union material. The Arbitrator determined that his role in this case was limited to the interpretation of specific contract language. He held that the distribution of the bulletin by Union agents violated Article 12, Section 2A because it maligned the character of Woodcox. The Arbitrator found that the newsletter contained information that was "false, inaccurate, and a misrepresentation of the facts." Arbitrator's Decision at 14. He stated that each of the unfair labor practice charges referred to in the newsletter had been settled informally by the parties before the date of the newsletter. He rejected the Union's argument that the bulletin did not intend to convey to employees that Woodcox had been "adjudicated" guilty of four unfair labor practices. He found that the headline, reinforced by the text of the bulletin, showed that "these miscrepresentations were designed to malign and defame Mr. Woodcox(,) with whom the Union has had ongoing disputes." Arbitrator's Decision at 17-18. The Arbitrator also determined that the wording in Section 2 was mutually accepted by the parties as a limitation on Union freedom of expression; and that the Union agreed to the language as a "reasonable trade-off" for receiving bulletin board space and use of the Agency's facilities to distribute Union materials. Arbitrator's Decision at 18. As to the Union's argument that the Arbitrator should deny enforcement of the disputed portions of Article 12, Section 2A, the Arbitrator held that he was now empowered to declare null and void a provision of a negotiated agreement which was mutually agreed to by the parties, unless the Union had entered into the agreement under duress. He found that the Union had not entered into the agreement under duress, and he concluded that Article 12, Section 2A of the agreement did not infringe upon the Union's constitutional guarantees, its statutory rights or public policy. Accordingly, the Arbitrator found that the Union violated Article 12, Section 2A. The Arbitrator ordered the Union to (1) cease and desist from distributing on Agency property publications which violate Article 12, Section 2A of the National Agreement, and (2) prepare and post a retraction of the material which maligned Woodcox. III. Exception The Union contends that the Arbitrator's award fails to draw its essence from the parties' agreement. In support of this contention, the Union argues that the award evidences a manifest disregard of the law because it is contrary to Federal Labor law and is inconsistent with public policy. The Union further argues that the award contravenes the express terms of the collective bargaining agreement and is ambiguous. The Agency did not file an opposition to the Union's exceptions. IV. Analysis In order for an award to be found deficient as failing to draw its essence from the parties' agreement, the party making the allegation must demonstrate that the award (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, or so unconnected to the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. General Services Administration, Region 8 and American Federation of Government Employees, AFL-CIO, Council 236, 21 FLRA No. 54 (1986) slip op. at 2. We find that the Union has failed to demonstrate that the Arbitrator's award does not draw its essence from the parties' agreement under any of the tests described above. The Arbitrator found that Article 12, Section 2A requires that materials distributed by Union representatives on Agency property not malign the character of any Federal employee. He determined that the Union had voluntarily agreed to the provision and that he was not empowered to declare it null and void where there was mutual agreement between the parties. The Arbitrator concluded that the Union violated that provision by distributing the bulletin containing false and misleading information which maligned Woodcox. The Union's exception merely constitutes disagreement with the Arbitrator's interpretation of the parties' agreement and his assessment of the facts in this case. The exception therefore does not provide a basis for finding the award deficient. See, for example, Veterans Administration Regional Office, Denver, Colorado and American Federation of Government Employees, AFL-CIO, Local Union 1557, 25 FLRA No. 93 (1987). We also reject the Union's assertion that the award contravenes the express terms of the collective bargaining agreement. The Arbitrator's award resolved a grievance submitted to him by the parties in accordance with their negotiated grievance procedure. In resolving the grievance on the basis of the evidence, the Arbitrator determined that the Union's action was contrary to the agreement and that the agreement did not infringe on the constitutional guarantees or on the Federal rights of labor organizations. He found that the Union had agreed to a limitation on its rights to publish and distribute materials in exchange for access to agency bulletin boards and facilities. The Union has failed to demonstrate that the award violates the terms of the agreement. Finally, the Union's assertion that the award is ambiguous must be rejected. The Union argues that it is unable to comply with the Arbitrator's award since he failed to identify the statements in the bulletin which were contrary to the parties' agreement. However, the Arbitrator clearly states in his award that the bulletin containing false and misleading information concerning the resolution of certain unfair labor practice charges involving Mr. Woodcox. His award directed the Union to retract the information in the headline and text of the bulletin which indicated that Mr. Woodcox had been found guilty of four unfair labor practices. The Union's assertion provides no basis for finding the award deficient. V. Decision For the reasons stated above, the Union's exceptions are denied. Issued, Washington, D.C., May 12, 1987.