35:1175(132)AR - - DOD, Defense Mapping Agency, Hydrographic/Topographic Center and AFGE Local 3407 - - 1990 FLRAdec AR - - v35 p1175



[ v35 p1175 ]
35:1175(132)AR
The decision of the Authority follows:


35 FLRA No 132

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3407,

(Union)

0-AR-1719

DECISION

May 30, 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 James T. Youngblood 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained a grievance filed by the Agency over the alleged failure of Union stewards to obtain permission to meet with employees during work hours. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient because the Arbitrator exceeded his authority or was biased, or because the award is based on nonfacts. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Two Union stewards who are employees at the Agency's main headquarters in Brookmont, Maryland, went to an office maintained by the Agency in Riverdale, Maryland to meet with employees. The Agency filed a grievance alleging that the stewards' visit violated Article VI, Section 4 of the parties' collective bargaining agreement, which provides:

When a steward, officer or bargaining unit member enters an area other than that supervised by his/her own first level supervisor to conduct appropriate business, the individual will contact the supervisor of the area entered, advise him/her of his/her presence and the name of the employee(s) to be contacted, and the approximate amount of time necessary to conduct the business. If the employee(s) to be contacted can be spared from his/her duties, the supervisor will make the necessary arrangements for the Union representative to contact the employee. After completion of the appropriate business, the steward and the employee(s) contacted will advise their respective supervisors.

Award at 2.

The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues before him as follows:

1. Whether the Employer granted the Union thirty minutes official time to conduct a meeting.

2. Whether the Employer granted the Union permission to meet with more than two named employees.

Id. at 5.

As is relevant to this case, the Arbitrator found that the Union violated Article VI, Section 4 of the parties' collective bargaining agreement because the stewards "entered an area controlled by a supervisor and conducted a union meeting with employees without first obtaining permission from the supervisor." Id. at 7. The Arbitrator credited the Agency's witnesses and concluded that the supervisor in charge had only given the stewards permission to meet with two employees during their lunch period. Id. The Arbitrator concluded that because the stewards "met with five employees for approximately 45 minutes and the employees thereafter took their lunch hour the union meeting [was] outside the scope of the permission granted by the supervisor." Id.

The Arbitrator ordered the Union to post a notice acknowledging its violation of the parties' contract. Id. at 8. The Arbitrator also ordered that the stewards and the employees who attended the meeting "be offered the alternative to use annual leave or be placed in a non-pay status" for the time they attended the Union meeting. Id.

III. First Exception

A. Positions of the Parties

The Union maintains that the Arbitrator exceeded his authority by resolving an issue that was not addressed by the Agency during the arbitration hearing. The Union asserts that the grievance charged the stewards "with entering a work area, and meeting in that work area with unit employees, without first obtaining permission from the appropriate supervisor." Exceptions at 1. The Union contends that the question as to "the time spent by unit employees and Union stewards in a meeting" was not raised by the Agency prior to the hearing. Id.

The Union contends that the Arbitrator also exceeded his authority because statements in the posting required by the Arbitrator "go beyond any facts developed in the hearing." Id. at 2. The Union asserts that the only "work areas" entered by the stewards were hallways and an employee break area. Id. The Union maintains that nothing in the parties' collective bargaining agreement requires "[U]nion officials to obtain management permission to meet with unit employees outside the work area during their lunch time." Id. at 3 (emphasis in original).

Finally, the Union asserts that the Arbitrator exceeded his authority because "[t]he burden of proof was incorrectly applied" by the Arbitrator. According to the Union, despite the fact that the Agency was the grieving party in this case, the Arbitrator "ignored conflicting testimony by management and management witnesses which should have cast the sum total of management into doubt." Id. at 3.

The Agency contends that the Union's exception does not provide a basis for finding the award deficient.

B. Analysis and Conclusions

An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA No. 89 (1990). Where the parties do not stipulate the issue(s) for resolution, however, an arbitrator's formulation of the issues to be resolved is accorded substantial deference. See id.

There is no indication in the record before us that the parties stipulated the issue to be resolved by the Arbitrator. Accordingly, the Arbitrator framed the issues for arbitration, including the first issue: "Whether the Employer granted the Union thirty minutes official time to conduct a meeting." Award at 5. The Arbitrator sustained the grievance and, as part of the remedy, ordered that the employees who had attended the meeting be offered the alternative of using annual leave or being put in a non-pay status for the time they spent at the meeting. We conclude that the Arbitrator's award concerning the use of official time is directly responsive to and properly confined to the issue as the Arbitrator framed it. Consequently, the Union's exception provides no basis for finding the award deficient. See id.

Similarly, the Union's contentions that the Arbitrator exceeded his authority by (1) requiring the Union to post a notice containing statements which are inconsistent with facts developed at the arbitration hearing, and (2) ignoring conflicting testimony at the hearing, provide no basis for finding the award deficient. Instead, we conclude that these contentions constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony presented at the hearing. As such, these contentions do not demonstrate that the award is deficient under section 7122(a) of the Statute. See Department of the Army, 7th Infantry Division (Light), Fort Ord, California and American Federation of Government Employees, Local 2082, 34 FLRA 916 (1990).

Finally, we note the Union's assertion that the Arbitrator's decision "reeked of pro-management bias." Exceptions at 3. To the extent that the Union is asserting that the award is deficient because the Arbitrator was biased, its assertion fails to demonstrate that the award is deficient.

To show that an arbitrator was biased against a party to a proceeding, the party must substantiate that: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of any party were prejudiced. Veterans Administration Winston-Salem, N.C. and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987). The Union has failed to demonstrate that the Arbitrator was biased under any of these criteria. Accordingly, the Union's assertion provides no basis for finding the award deficient.

IV. The Second Exception

A. Positions of the Parties

The Union asserts that the Arbitrator's award is deficient because the Arbitrator decided the case "on the wrong issues." Exceptions at 4. In support of its assertion, the Union contends that testimony and evidence presented at the arbitration hearing "clearly established" that the Union did not violate the parties' collective bargaining agreement. Id.

The Agency asserts that this exception provides no basis for finding the award deficient.

B. Analysis and Conclusion

As noted previously, the Union has not demonstrated that the award is deficient because the Arbitrator exceeded his authority by resolving an issue which was not presented to him. To the extent that the Union is asserting here that the award is based on nonfacts, the Union also has failed to demonstrate that the award is deficient.

In order to show that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See U.S. Department of Labor, Washington