34:0630(107)AR - - AFGE Local 1568 and HUD - - 1990 FLRAdec AR - - v34 p630
[ v34 p630 ]
The decision of the Authority follows:
34 FLRA No. 107
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
January 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Michael Jay Jedel. The Arbitrator denied a grievance concerning an employee's use of a radio during business hours.
The American Federation of Government Employees, Local 1568 (the Union) filed exceptions to the Arbitrator's award 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 U.S. Department of Housing and Urban Development (the Agency) filed an opposition to the exceptions.
For the reasons discussed below, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant worked as an Accounting Technician in the Accounting Division of the Agency's Atlanta Regional Office. On December 22 or 23, 1987, the grievant brought a radio with headphones to the office. The grievant was listening to the radio at her work station during business hours. The grievant's immediate supervisor told her not to bring a radio to the office again because radios were not allowed in the Accounting Division.
A grievance was filed. When the parties did not resolve the grievance, it was submitted to arbitration on the following stipulated issue:
Did Management violate Article 4, Section 4.04 or Article 5, Section 5.02 of the National Agreement between U.S. Department of Housing and Urban Development and American Federation of Government Employees, AFL-CIO, by the action of [the supervisor] on December 22 or 23, 1987, when he denied [the grievant] the use of her radio; if so, what shall the remedy be?
Award at 2.
The Arbitrator found that the Agency did not violate section 5.02 of the parties' collective bargaining agreement, which requires the Agency to notify the Union of "proposed changes relating to personnel policies, practices, and conditions of employment[.]" Id. at 3. The Arbitrator determined that no change in the policy concerning use of radios occurred in the Accounting Division. The Arbitrator found that although the Agency did not have a written policy or rule concerning personal use of radios, there was "clear and convincing evidence that there was a longstanding and known unwritten rule or standard concerning the non-use of radios in Accounting under normal working circumstances." Id. at 13. (Emphasis in original.) Therefore, the Arbitrator rejected the Union's contention that the Agency violated section 5.02 of the National Agreement.
The Arbitrator also rejected the Union's contention that the Agency violated section 4.04 of the parties' agreement, which provides that employees "shall be treated fairly and equitably in the administration of [the] Agreement and policies and practices concerning conditions of employment." Id. at 3. The Arbitrator found that the Agency established "a bona fide need" to treat the Accounting employees differently from employees in other divisions because the Accounting Division was "'the last line of defense on financial matters.'" Id. at 12. (Emphasis in original.) The Arbitrator determined that the grievant was treated "identically" to all other employees in the Accounting Division. Id. at 14. The Arbitrator concluded, therefore, that the Agency did not violate section 4.04 of the National Agreement.
The Arbitrator found that "[n]o contractual right or other existing and established employee privilege existed in [the Accounting] division concerning the use of personal radios." Id. at 14-15. The Arbitrator also found that the Union failed to establish that the Agency's prohibition on the use of radios was arbitrary, unreasonable, or discriminatory. Id. at 15. Consequently, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union's Exceptions
The Union contends that the award is based on non-facts. The Union argues that the Arbitrator erred by using "flawed logic articulated by Management." Union's Exceptions at 3. The Union also argues that the Arbitrator erred by relying on the testimony of one management official as "the expert on the effects of the use of radios." Id. at 4.
The Union asserts that the Agency violated section 4.04 of the parties' agreement by treating the employees in the Accounting Division differently than other Agency employees. The Union also asserts that "employees in accounting itself were treated differently during regular working hours and hours worked on Saturdays and overtime." Id. at 5. The Union claims that if a personnel policy "can be changed or modified for certain days or hours, then it is not a firm policy." Id. The Union maintains that "a change has occurred with respect to the practice, rule or policy on the use of radios in Accounting" in violation of section 5.02 of the National Agreement. Id. at 5. Finally, the Union also requests a stay of the arbitration award.
B. The Agency's Opposition
The Agency contends that the Union has not identified the non-facts which allegedly were relied on by the Arbitrator. The Agency asserts that the Union is disagreeing with the Arbitrator's reasoning and that disagreement with the Arbitrator's reasoning does not provide a basis for finding the award deficient. The Agency also states that "filing an exception to an arbitration award acts in and of itself as a stay." Agency's Opposition at 2. The Agency asserts that because the Arbitrator upheld "the status quo[,]" there was no change to which a stay could apply. Id.
IV. Analysis and Conclusion
The Statute sets forth the grounds on which an arbitration award will be found deficient. Under section 7122(a), an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the reasons stated below, we conclude that the Union has failed to establish that the award is deficient on any ground set forth in the Statute.
When a party contends that an arbitrator's award is deficient under the Statute because it is based on a non-fact, the party must demonstrate that the central fact underlying the award is concededly erroneous and is a gross mistake of fact, but for which a different result would have been reached. For example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1177 (1988).
Although the Union asserts that the award is based on non-facts, the Union has not identified the non-facts on which the Arbitrator allegedly relied. We conclude that the Union's contentions that the award is based on non-facts and that the Arbitrator "used flawed logic" constitute mere disagreement with the Arbitrator's conclusion that the Agency's prohibition on the use of radios in the Accounting Division during normal business hours did not violate the collective bargaining agreement. Union's Exceptions at 3. Disagreement with the Arbitrator's conclusion does not establish that the Arbitrator's award is deficient because it is based on non-facts. Compare American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 91-92 (1988) (alleged non-fact constituted disagreement with an arbitrator's findings of fact and his interpretation and application of the parties' collective bargaining agreement and provided no basis for finding an award deficient) with U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374, 375-76 (1985) (award deficient because the central fact underlying the award was concededly erroneous and, in effect,