35:1224(140)AR - - HUD, Los Angeles Area Office, Region IX, Los Angeles, CA and AFGE Local 2403 - - 1990 FLRAdec AR - - v35 p1224
[ v35 p1224 ]
The decision of the Authority follows:
35 FLRA No. 140
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
LOS ANGELES AREA OFFICE
LOS ANGELES, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2403, AFL-CIO
May 31, 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 Edna E. J. Francis 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 Arbitrator determined that the Agency violated the applicable collective bargaining agreements by failing to provide the Union with a private office and ordered the Agency to do so.
We conclude that the Agency has not established that the Arbitrator's award is deficient under section 7122 of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The parties in this case were covered by a National Agreement between the Department of Housing and Urban Development (HUD) and the American Federation of Government Employees (AFGE). As relevant here, that agreement provided that management would continue to provide AFGE with offices at those field locations which had them at the time the agreement was executed.
As found by the Arbitrator, the Union had been provided a private office with a lockable door prior to August 1985. In August 1985, however, the Agency relocated its offices within the Los Angeles area. During impact and implementation bargaining over the relocation, the parties bargained to impasse over the issue of Union office space at the Agency's new location. Following a meeting with the Federal Service Impasses Panel, the parties entered into a supplemental agreement on Union office space.
The agreement provided that the Union would be given private space on the first floor of the new building. The Union was allocated 70 square feet, to be enclosed by 7-foot acoustical screens for privacy. Further, the Agency agreed to provide the Union with a desk and chair, a file cabinet, a typewriter, a visitor's chair, a telephone, and a covering for the entry way. Finally, the agreement provided that should additional space be acquired, the Agency would consider alternative space for the Union's use.
Though the Arbitrator found conflicting evidence regarding the extent to which the Agency complied with the agreement, it was not disputed that the Agency never fully furnished the first-floor space as agreed. In any event, in April 1987 the Agency decided to remodel the first floor, and proposed to provide the Union with temporary space on the ninth floor. The ninth-floor space would be made permanent if it proved satisfactory to the Union. The Union, however, never discussed this proposal with the Agency. Subsequently, on May 12, 1987, the Agency notified the Union that it was going to implement its proposal regarding the ninth-floor space.
Sometime after the Agency implemented the relocation to the ninth floor, the parties entered into negotiations over the matter. In June 1988, however, the Union informed the Agency that it was withdrawing the issue of private office space from bargaining, choosing instead to take the issue to arbitration. The Union stated that it would rely on the existing contractual provisions on Union office space at arbitration.
The Arbitrator framed the issue as: "Has management violated provisions of the Agreement pertaining to Union Office space? If so, what is the appropriate remedy?" Award at 12.
The Arbitrator found that had the Agency not relocated in 1985, the Union would have been entitled to a private office because it had one at the time the National Agreement was executed, and the agreement provided that management would continue to provide offices where they existed at that time. Further, the Arbitrator concluded that the intent of the parties' supplemental agreement was to secure more suitable space for the Union if and when space became available. After inspecting the ninth-floor space provided the Union at the time of the hearing, the Arbitrator found that it did not satisfy the Union's need for privacy.
The Arbitrator then found that the Agency had failed to equip both the first floor and the ninth floor with the full complement of items called for in the parties' agreement and that the Agency had vacant rooms available. The Arbitrator also found that any one of these rooms, being unused for a substantial period of time, could have been used as a Union office. She concluded that the Agency's failure to make such space available to the Union, or to justify its failure to do so, constituted a "violation of both the letter and the spirit of [the National Agreement and the parties' supplemental agreement]." Award at 14-15. Accordingly, the Arbitrator ordered the Agency to provide the Union with a private office.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the award is deficient because: (1) it does not draw its essence from the applicable collective bargaining agreements; (2) it is based on a nonfact; and (3) the Arbitrator exceeded her authority by ordering the Agency to provide the Union a private office.
The Agency asserts that the National Agreement requires HUD to provide AFGE an office only at the Agency's headquarters in Washington, D.C. Further, the Agency contends that the National Agreement allows for private office space for the Union only as a last option. The
Agency argues, however, that even if the Union had been entitled to a private office, the subsequent supplemental agreement to provide the Union with private space, not an office, at the new location superseded any pre-existing obligation to provide a fully enclosed office.
The Agency claims that the Union did not have a private office prior to the Agency's relocation in August 1985. The Agency contends that, based on the alleged existence of the private office at the earlier location, the Arbitrator concluded that the Union would have been entitled to one at the new location. Accordingly, the Agency argues the award is based on a nonfact.
Finally, the Agency claims that by "telling the Agency when and how its space can/should be utilized[,]" the Arbitrator exceeded her authority. Exceptions at 4.
B. Union's Opposition
The Union disputes the Agency's contention that the award fails to draw its essence from the relevant collective bargaining agreements. The Union asserts that the Arbitrator's finding that the Union was entitled to a private office because the Agency had provided one when the National Agreement was executed is firmly grounded in the language of the agreement. Further, the Union contends that the language in the supplemental agreement, to the effect that the Agency will continue to review its facilities in order to find the Union alternative space, "reasonably includes the use of any one of a number of vacant rooms as a Union office." Opposition at 2.
The Union also contends that the Agency has offered no evidence that the Union did not have a private office at the Agency's first location. The Union contends that the Agency is simply excepting to a finding of fact by the Arbitrator.
IV. Analysis and Conclusion
We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122 of the Statute. The Agency has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
We conclude that the Agency has not shown that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In order for an award to be found deficient because it fails to draw its essence from the parties' collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of Labor, Washington D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).
The Arbitrator's finding that the Agency was obligated to provide the Union with a private office because the Union had been provided one in the past was a plausible interpretation of the parties' agreement. In that regard, we note that section 8.01 of the National Agreement states in relevant part:
Management will continue to provide the Union with one office in Headquarters and at those HUD field locations that currently provide office space for Union representatives.
Award at 11, emphasis added. To assert, as the Agency does, that the requirement to provide offices is limited to the Agency's headquarters ignores the conjunctive structure of the sentence. The Agency's contention constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the relevant provisions. It is well settled that such disagreement provides no basis for finding an award deficient. Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 35 FLRA 14 (1990).
The Agency's claim that the award is based on nonfact is similarly without merit. We will find an award deficient under the Statute because it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. For example, Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42, 45 (1990).
We need not reach the central nature of the alleged nonfact, because the Agency has not established that it is clearly erroneous. Based on the record evidence presented, the Arbitrator found that the Union had an office at the Agency's first location. In its exceptions, the Agency asserts that the Union did not have a private office, but points to nothing in the record to question, let alone refute, the Arbitrator's finding. Accordingly, we find that this exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and her findings of fact. This is not a basis for finding the award deficient. American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630 (1990).
Finally, the Agency has not substantiated its claim that an order that the Agency provide the Union with a private office is beyond the Arbitrator's authority. To the contrary, the issue, as framed by the Arbitrator, was whether the Agency violated the applicable collective bargaining agreements with respect to Union office space. As acknowledged by the Agency before the Arbitrator, office space for the Union was a negotiable matter. See American Federation of Government Employees, AFL-CIO, Local 1631 and Veterans Administration Medical Center, Chillicothe, Ohio, 25 FLRA 366 (1987) (Provision 1). Inasmuch as the central issue was whether the Union was entitled to a private office under the agreements, the Arbitrator's remedy was within her remedial discretion. See Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employe