32:0777(113)AR - - VA Medical Center and AFGE Local 2207 - - 1988 FLRAdec AR - - v32 p777
[ v32 p777 ]
The decision of the Authority follows:
32 FLRA No. 113
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2207
Case No. 0-AR-1544
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator John W. Kennedy 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. The Veterans Administration (the Agency) filed an opposition.
The grievant, a Union steward, was reprimanded for disruptive behavior and for failure to comply with the requirements of the parties' collective bargaining agreement regarding contacts between union representatives and unit employees. The steward grieved the reprimand and the Arbitrator denied the grievance. For the reasons stated below, the Union's exceptions are denied.
II. Background and Arbitrator's Award
According to the award's summary of the main points of testimony in the hearing before the Arbitrator, the background of the case is as follows. The grievant, Willmer Cornner, is a Union steward. Cornner received permission from his supervisor to meet with Stanley Menefee, an employee in the Personnel Office who had requested union representation in connection with a proposed disciplinary action against him. Before leaving his work area, Cornner had not requested permission from Menefee's supervisor, Bruce Reinhart, Assistant Chief of Personnel Services, to meet with Menefee. Cornner went to the Personnel Office and asked Reinhart if he could meet with Menefee. Reinhart initially refused, but then agreed to let the meeting take place in his office.
After Cornner and Menefee entered Reinhart's office to begin their meeting, Cornner protested when Reinhart remained in the doorway of the office. Cornner became loud and disruptive. Reinhart told Cornner to leave his office and repeated that order several times. During this period, Reinhart accidentally touched Cornner. Cornner challenged Reinhart "to step out in the hall and touch him again." Award at 16. As Cornner left the office, he asked to use the telephone. Reinhart denied the request because he wanted Cornner to leave the office. Reinhart also denied Cornner's request to use the restroom.
Cornner was reprimanded for "violating Article XI, Section 4 of the local labor management agreement, loud, disruptive behavior, disrespectful conduct and threatening a management official." Award at 15. Article XI, Section 4 of the parties' collective bargaining agreement provides as follows:
A steward, before leaving the work area to transact appropriate Local-hospital business, will obtain the permission of his immediate supervisor and will contact the supervisor of the concerned employee to determine a convenient time for the steward and employee to meet. Failure to follow this procedure will result in disciplinary action against the steward and a formal protest to the Local.
Cornner filed a grievance requesting that: (1) the reprimand be rescinded; (2) disciplinary action be brought against the proper management official; (3) management cease and desist from violating the rights of employees and union representatives; and (4) employees be properly informed of their rights in the future and that he be issued a letter of apology.
The parties could not agree on a statement of the issue. The Arbitrator stated the issue as follows: "Taking everything into consideration, shall the grievance be upheld or denied; and if upheld, what shall the remedy be?" Award at 2.
The Arbitrator denied the grievance. The Arbitrator found that Article XI, Section 4 of the parties' agreement requires that before leaving his work area, a steward obtain the permission of his immediate supervisor and contact the supervisor of the employee with whom the steward intends to meet in order to determine a convenient time for their meeting. The Arbitrator found that if the grievant had complied with the requirements of the contract, the incident could have been avoided. The Arbitrator also found that the grievant was loud and disruptive in the Personnel Office and had threatened Reinhart with violence.
The Arbitrator determined that Reinhart was justified in refusing the grievant's request to use the telephone and the restroom. The Arbitrator found that the parties' agreement permits Union officials to use the facility's telephone as long as use of the telephone does not cause an undue interference with the normal business of the worksite. He concluded that Reinhart properly denied the grievant the use of the telephone and the restroom on the ground that it would cause further disruption of the office.
As his award, the Arbitrator stated: "Taking everything into consideration, the grievance is denied." Award at 17.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is "contrary to the explicit terms of the agreement, the law, and the issue before him as expressed by the parties to the arbitration, and the grievance itself." Exceptions at 2. The Union also contends that the Arbitrator's award was beyond the scope of the Arbitrator's authority.
The Union argues that the Arbitrator erred in not finding that Reinhart improperly interfered with a private meeting between a Union representative and a unit employee. The Union also states that it "takes exception with the strict interpretation of Article XI Section 4 by the arbitrator[.]" Exceptions at 7. Finally, the Union argues that the Arbitrator failed to take into consideration the grievant's rights under section 7102 of the Statute. According to the Union, the grievant "can not be charged with insubordination while acting in the capacity of a union official because such activities of union officials are a protected activity based on the provisions of 5 USC 7102." Exceptions at 12.
B. The Agency
The Agency asserts that the Union's exceptions should be denied because the award draws its essence from the collective bargaining agreement and is supported by the Arbitrator's findings of fact. The Agency contends that the exceptions constitute mere disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement and do not constitute grounds for finding the award deficient. The Agency also contends that the Union's exceptions only reflect its disagreement with the Arbitrator's determination of the scope of the grievance and with his factual findings.
We conclude that the Union 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; that is, that the award is contrary to law, rule, or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations.
The Union's arguments provide no basis for finding the award deficient. The exceptions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and his reasoning and conclusion. See, for example, Commander, Griffiss Air Force Base and Local 2612, American Federation of Government Employees, AFL-CIO, 31 FLRA 1187 (1988) (exceptions denied as to an award denying the grievance of a union official charged with being AWOL for failure to get permission to leave worksite to conduct union business as required by contract because exceptions constituted disagreement with the Arbitrator's interpretation of the contract); Social Security Administration and American Federation of Government Employees, SSA General Committee, 30 FLRA 381 (1987) (exceptions which attempt to relitigate the merits of the case before the Authority and which constitute nothing more than disagreement with the arbitrator's reasoning and conclusions provide no basis for finding the award deficient).
We reject the Union's contention that section 7102 of the Statute precludes discipline against the grievant because the grievant was acting in the capacity of a Union official. The Statute does not protect all conduct by employees acting as union representatives, nor does it preclude an agency from taking disciplinary action in appropriate circumstances against employees who are acting in their union capacity. See, for example, American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 21 (1987) (finding nonnegotiable a provision which would preclude an agency from taking disciplinary action against an employee for acting as a union representative).
We also reject the Union's contention that the award exceeds the scope of the Arbitrator's authority. When the parties cannot agree on a statement of the issue, an arbitrator does not exceed his authority when he formulates and decides the issue himself. See Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986) (in the absence of a stipulated issue, an arbitrator may formulate the issue and extend his award to matters that necessarily arise from his formulation of the