27:0435(60)AR - NLRB and NLRB Union -- 1987 FLRAdec AR



[ v27 p435 ]
27:0435(60)AR
The decision of the Authority follows:


 27 FLRA No. 60
 
 NATIONAL LABOR RELATIONS BOARD
 Agency
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Union
 
                                            Case No. 0-AR-1286
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator A. Lee Belcher filed by the Agency 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
 
    A grievance was filed by the Union on behalf of Robert F. Markey, an
 employee of the Agency's Houston Regional Office.  The parties submitted
 a stipulation of facts to the Arbitrator, who rendered his Opinion and
 Award based on the stipulation without an oral hearing.
 
    A.  The Stipulated Facts
 
    The Agency had given employee Donald Lewis a notie of proposed
 suspension.  Markey had provided Lewis with an affidavit for Lewis' use
 in responding to the proposed suspension.  Assistant General Counsel
 Kinney was assigned by the Agency's Headquarters Office, Washington,
 D.C., to investigate the matters raised by Lewis' response to the
 proposed suspension.  Kinney requested that Markey provide a statement
 to the Agency, in the form of an affidavit, regarding the matters raised
 by the affidavit Markey had supplied to Lewis.  Markey was allowed time
 to discuss the matter with the Union.  The Union asserted to the Agency
 that it was entitled to be present, and that Markey was entitled to be
 represented by the Union, during the taking of such an affidavit.
 Kinney again met with Markey.  Markey requested the presence of a Union
 representative, and Kinney refused.  Markey requested immunity from
 discipline for any matters that would be discussed.  Kinney refused on
 the grounds that she did not know what Markey was going to say;  she
 ordered Markey to provide an affidavit, and he complied.  The Union then
 filed the grievance that gave rise to this arbitration matter.
 
    B.  The Issues
 
    The parties stipulated the issues before the Arbitrator as follows:
 
          1.  Did the National Labor Relations Board (Agency) violate
       Article 3, Section 1;  and Article 5, Section 8(a) of the
       collective bargaining agreement when it refused to allow a
       representative of the National Labor Relations Board (Union) to
       attend an examination by AGC Elizabeth Kinney of employee Robert
       F. Markey on 15 March 1985?
 
          2.  Did the Agency violate Article 3, Section 1;  or Article 4,
       Sections 6 and 10;  or Article 5, Section 8(b) of the collective
       bargaining agreement when it refused to allow the employee to have
       a representative of the Union attend the 15 March 1985 examination
       described above?
 
          3.  Did the Agency violate Article 3, Section 1 when it failed
       to assure Markey that his participation in the 15 March 1985
       examination was voluntary?
 
          4.  If any of the above are answered in the affirmative, what
       shall be the remedy?
 
    C.  The Arbitrator's Award
 
    The Arbitrator found that the Agency violated the contract when it
 refused to allow the Union to be present when Markey was questioned by
 Kinney.  He further found that Kinney's questioning of Markey about his
 previous affidavit was in the nature of the cross-examination of a
 witness, and was not simply in the nature of factfinding.
 
    As his award, the Arbitrator held that:
 
    1.  The Agency violated Article 3, Section 1, and Article 5, Section
 8(a) of the parties' agreement when it refused to allow a Union
 representative to attend Kinney's examination of Markey.
 
    2.  The Agency violated Article 4, Section 10 and Article 5, Section
 8(b) of the agreement when it refused to allow Markey to have a Union
 representative present at the examination.
 
    3.  An employee has the right to union representation in any agency
 examination of previously sworn statements upon his or her timely
 request given to the agency.
 
    4.  The Agency did not violate Article 3, Section 1 when it declined
 to assure Markey that his participation in the examination was
 voluntary.
 
    5.  The request that it be declared that an employee has the right to
 participate or not participate in examinations of information previously
 given in an affidavit is denied.
 
    6.  The request for expungement of Markey's affidavit from the
 Agency's record is denied.
 
                      III.  Positions of the Parties
 
    A.  The Agency's Exceptions
 
    In its exceptions, the Agency argues that the Arbitrator's findings
 are contrary to law and Authority precedent.  The Agency also argues
 that the Arbitrator exceeded his authority by finding that all employees
 have a right to union representation in any examination of previously
 sworn statements without regard to what the facts may be in other given
 circumstances.
 
    B.  The Union's Opposition
 
    In support of the findings and conclusions of the Arbitrator, the
 Union argues that the Agency's exceptions ignore the Arbitrator's basic
 finding as to the nature of the investigation.  The Union argues that
 the Agency is only disagreeing with the Arbitrator's factual findings
 and the conclusions he reached from those findings as to the meaning of
 the parties' collective bargaining agreement.
 
                       IV.  Analysis and Conclusions
 
    We conclude that the Agency's exceptions fail to establish that the
 award (other than the third paragraph) is deficient.  The Arbitrator
 made certain findings of fact and applied the provisions of the parties'
 collective bargaining agreement to resolve the issues which were
 submitted to him.  He concluded that under those provisions Markey and
 the Union had certain contractual rights.  The Agency's exceptions which
 dispute these conclusions constitute nothing more than disagreement with
 the Arbitrator's interpretation and application of the collection
 bargaining agreement, and provide no basis for finding the award
 deficient.  As the Authority has consistently stated, the interpretation
 and application of the collective bargaining agreement is a question
 solely for the arbitrator, since it is the arbitrator's construction of
 the agreement for which the parties have bargained.  See, for example,
 Department of Health and Human Services, Social Security Administration,
 Louisville, Kentucky District and National Federation of Federal
 Employees, Local 1790, 10 FLRA 436, 437 (1982).  In addition, to the
 extent the Agency takes issue with the Arbitrator's view of the facts,
 this likewise constitutes nothing more than disagreement with the
 Arbitrator's reasoning and conclusions and provides no basis for finding
 the award deficient.  U.S. Army Corps of Engineers, Kansas City District
 and National Federation of Federal Employees, Local 29, 22 FLRA No. 15
 (1986).
 
    However, we find that the Agency's exception to the third paragraph
 of the Arbitrator's award has merit.  In that paragraph of the award,
 the Arbitrator held that "an employee has a right to union
 representation in any agency examination of previously sworn statements
 upon his/her timely request given to the agency." We find that the
 Agency's argument in support of this exception establishes that this
 paragraph of the award is deficient.  An arbitrator exceeds his or her
 authority when the arbitrator issues an affirmative order that goes
 beyond the scope of the matter submitted to arbitration.  For example,
 Environmental Protection Agency, Region 9 and Engineers and Scientists
 of California, MEBA, AFL-CIO, 17 FLRA 365 (1985).
 
    In this case the Arbitrator exceeded his authority by failing, in the
 third paragraph, to confine his award to the issues presented to him.
 The parties stipulated that the issues concerned only the rights of
 Markey and the Union with regard to the March 15, 1985 examination of
 Markey.  The third paragraph of the award goes beyond the scope of the
 stipulated issues, because it determines the rights of all employees to
 union representation in any Agency examination of previously sworn
 statements.  See also U.S. Department of Housing and Urban Development
 and American Federation of Government Employees, Local No. 3412, 24 FLRA