32:0141(20)AR - - Pension Benefit Guaranty Corporation and NTEU Chapter 211 - - 1988 FLRAdec AR - - v32 p141



[ v32 p141 ]
32:0141(20)AR
The decision of the Authority follows:


32 FLRA No. 20

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

PENSION BENEFIT GUARANTY CORPORATION
Agency

and 

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 211
Union

Case No. 0-AR-1465

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Jack Warshaw, 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. The Union filed an opposition to the Agency's exceptions.

The grievance was filed by the Agency. The Agency claimed that: (1) the Union failed to comply with section 47.3 of the parties' collective bargaining agreement, which required the Union to provide the Agency with a quarterly summary of all official records of official time used by union representatives employed by the Pension Benefit Guaranty Corporation (PBGC); and (2) that the Agency had the right to review, photocopy and take notes of permanent records of the individual uses of official time under the terms of the parties' collective bargaining agreement. The Agency requested the following remedies: (1) reports for the quarters ending March 31, June 30 and September 30, 1986 to be provided to the Agency by November 24, 1986, (2) individual records of official time since January 1, 1986 be made available to the Agency for review and copying by November 24, 1986, and (3) a letter of apology to the Director of Personnel for failure to comply with section 47.3 of the agreement, and indicating its intent to do so in the future.

The Arbitrator determined that because the Union had, in fact, provided the requested summaries to the Agency, the first remedy sought in the grievance was moot. He also determined that the Agency had the right to review, copy, and take notes of official time records, but that the Union had the right to "sanitize" those records to protect employees. Additionally, he determined that under section 56.3 of the agreement there was no losing party, and the Arbitrator's fees and expenses were to be equally divided between the parties. The Agency claims that the Arbitrator exceeded his authority by deciding an issue which was not before him and that the award does not draw its essence from the collective bargaining agreement.

We find that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The award is not contrary to any law, rule, or regulation nor is the award deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. Therefore, we deny the exceptions.

II. Background

On November 19, 1986, the Agency filed a grievance alleging that the Union continually failed to comply with section 47.3 of the parties' collective bargaining agreement. Section 47.3 of the agreement requires that the Union provide the Agency, on a quarterly basis, with a summary of all official records of official time used by the union representatives employed by PBGC. In addition, the Agency sought to review and copy individual records of official time.

On November 21, 1986, the Union replied to the grievance stating that the requested reports were being submitted to the Agency on that date, and that the request made in the grievance for an audit of official time statistics was being denied because the Agency had not made any of the showings required by the parties' agreement to justify its request for an audit. The grievance proceeded to arbitration.

III. Arbitrator's Award

The Arbitrator determined that the stipulated issue was whether under the terms of section 47.3 of the agreement, the Agency had a right to review the Union's official time records, and as part of that review, copy and take whatever notes of those records it deemed necessary. The Arbitrator initially found that because the Union had provided the requested summaries to the Agency before the deadline established in the grievance, the Agency's request to that effect was moot.

The Arbitrator noted that section 47.3 of the agreement provides that the Agency has the right to review official time records. The Arbitrator found that section 47.3 of the agreement did not support the Union's argument that it had the unilateral right to restrict the Agency from taking notes in the review process. He concluded, therefore, that the Agency had the right to take as many notes as it deemed necessary. He also concluded that the Union had the right, prior to the Agency's review, to "sanitize" sensitive material from those records, such as employee's names, or other identifying information. He also determined that because the Agency could take any necessary notes, there was no point denying it the right to make photocopies. Thus, the Arbitrator sustained the grievance, subject to the sanitization of the records. In view of his decision, he concluded that according to section 56.3 of the parties' agreement there was no losing party and that, therefore, the Arbitrator's fees and expenses were to be divided between the parties.

IV. Positions of the Parties

A. Exceptions

The Agency excepts to the Arbitrator's ruling that the costs of arbitration should be split between the parties. Exceptions at 4. The Agency contends that the Arbitrator "developed a non-existent issue"--the sanitization of records--in order to find that the Union was not the losing party and was not required to pay all arbitration costs. Id.

According to the Agency, the issue before the Arbitrator was whether the Agency had the right to photocopy and take notes of the Union's official time records, and that the issue of whether the Union had a right to "sanitize" those records was not before him. Therefore, the Agency contends that the Arbitrator exceeded his authority by deciding an issue which was not presented to him.

The Agency also argues that according to section 56.5 of the agreement, the Arbitrator should have limited his award to the issue presented at arbitration: whether the Agency had the right to photocopy and take notes of the official time records. Thus, the Agency argues that the award does not draw its essence from the agreement because the Arbitrator decided an issue which was not presented to him.

Since the Arbitrator exceeded his authority by considering the sanitization issue and his award, which encompasses that issue, fails to draw its essence from the agreement, the Agency argues that his determination to divide the fees between the parties is erroneous. The Agency asserts that it is the winning party and that according to section 56.3 of the negotiated agreement, the Union must pay the Arbitrator's expenses.

The Agency requests the Authority to (1) revise the Arbitrator's award to reflect no findings on the sanitization issue, (2) reverse the Arbitrator's ruling on the costs of arbitration, and (3) access fees and expenses against the Union.

B. Opposition

The Union contends that the Agency failed to demonstrate that the arbitrator exceeded his authority. The Union claims that the Agency failed to inform the Authority that the Arbitrator was authorized by the parties to consider the division of fees under the contract. According to the Union, the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's conclusion that there was no winning party and that such contention is not a proper ground for overturning an arbitrator's award.

V. Analysis and Conclusions

The Arbitrator found that the portion of the Agency's grievance concerning the quarterly summaries of official time records was moot. The remaining issue before the Arbitrator was whether under the terms of the parties' agreement the Agency had the right to review official time records, take notes and make photocopies of those records. The Arbitrator interpreted section 47.3 of the agreement as giving the Agency the right to review those records, subject to the Union's right to remove the names of employees as well as other identifying information prior to the Agency's review. According to the Arbitrator, the Agency acknowledged the Union's right to sa