37:1096(93)AR - - Treasury, Office of Thrift Supervision, Washington, DC and AFGE Local 3295 - - 1990 FLRAdec AR - - v37 p1096



[ v37 p1096 ]
37:1096(93)AR
The decision of the Authority follows:


37 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

OFFICE OF THRIFT SUPERVISION

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3295

(Union)

0-AR-1909

DECISION

October 22, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the Award of Arbitrator Edward L. Merrigan 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 exception.

The Agency filed a grievance claiming that the Union violated the parties' agreement when it failed to request permission, from a designated Agency official, to use Agency space for Union meetings. The Arbitrator sustained the grievance, ruling that, under the agreement, the Agency had the right to designate the official to whom space requests were to be made and that the Union violated the agreement by directing its requests to a non-designated official.

For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

On October 25, 1988, the Agency sent a memorandum to the Union directing it to address its requests for space for Union meetings to the Director of Personnel. Award at 3. In the memorandum, the Agency stated that it was acting according to Article 9, Section 1 of the parties' agreement, which states:

If the [U]nion requests, the [E]mployer will permit the use of available space for [U]nion meetings. Upon request, available space may also be used by the [U]nion for meetings pertaining to representation.

Id. at 2. Prior to that date, the Union had made such arrangements "by simply contacting the employee in charge of utilization of the particular space . . . ." Id. The Union filed and subsequently withdrew an unfair labor practice charge alleging that the Agency had implemented a unilateral change "'without notice to the [U]nion[.]'" Id. at 3.

The Union continued to make arrangements for meetings in the Agency's official facilities without directing its requests to the Director of Personnel. When the Union failed to direct a request for space for a June 14, 1989, meeting to the designated official, the Agency filed a grievance.

The grievance asserted that the Union had accepted the designation of a new agency official when it failed to "notify the employer in a timely manner" of its wish to bargain over the change. Id. at 4. The Agency contended that as the Union had accepted the change, the Union was required to abide by the October 25, 1988, memorandum. According to the Agency, the Union's failure to request space from the Director of Personnel violated Article 9, Section 1 of the agreement. Id.

The grievance was not resolved and was submitted to arbitration. Absent an agreement by the parties, the Arbitrator formulated the following issues:

1. Does the Employer have the inherent management right under Article 9, Section 1, of the 1988-91 collective bargaining agreement to determine which of its officials should be designated to receive union requests for meeting space in its offices, and to direct the Union to present all such requests to that designated official?

2. After receiving the Employer's directive of October 25, 1988, did the Union violate Article 9, Section 1, of the . . . agreement by continuing to direct requests for meetings in the Employer's premises to a nondesignated employee?

Id. at 5.

The Arbitrator noted that Article 9, section 1 of the parties' agreement provides that "when the Union submits meeting 'requests,' the 'employer' is obliged to 'permit the use of available space for union meetings.'" Id. at 6. The Arbitrator noted also that, as the preamble to the parties' agreement defined the term "employer" as the "Federal Home Loan Bank Board, Headquarters, . . . clearly a management official must represent or act for the Employer when meeting requests are received from the Union." Id. (footnote omitted).

The Arbitrator ruled that "the Employer plainly has the inherent management right 'to assign work' and 'to determine the personnel by which agency operations shall be conducted'" under section 7106(a)(2)(B) of the Statute." Id. at 6. The Arbitrator held that this right "clearly includes the right to designate the management official to whom the Union must submit meeting requests under Article 9 . . . ." Id.

The Arbitrator concluded that the "Employer had the right, on October 25, 1988, to designate its Director of Personnel as the management official to whom union requests . . . must be directed, under Article 9, Section 1[.]" Id. at 9. The Arbitrator held that the Union violated Article 9, Section 1 "by thereafter conducting union meetings in the Employer's official facilities without first requesting and obtaining permission from that designated official." Id.

III. Positions of the Parties

A. The Union's Exception

The Union contends that the award violates Article 5, Section 2B of the collective bargaining agreement, which provides that "the Union may negotiate procedures which Bank Board management will observe in exercising any authority under this section." Exception at 1. The Union claims that under Article 5, Section 2B of the parties' agreement, which parallels 5 U.S.C. § 7106(b)(2), the Union has a right to negotiate procedures whenever a change of past practice occurs. Id.

The Union contends also that the obligation to negotiate over a change in past practice does not fall under Article 6, which addresses impact and implementation bargaining, because negotiations under this article concern only Agency or Government-wide changes. According to the Union, the Agency's change may be made only by reopening the contract for mid-term bargaining by mutual consent of the parties. As the Agency failed to request such mid-term bargaining, the Union argues that the award should be set aside.

B. The Agency's Opposition

The Agency contends that the Union's exception constitutes "nothing more than disagreement with the Arbitrator's reasoning and conclusion." Opposition at 2. The Agency also claims that bargaining under section 7106(b) of the Statute "is limited in application to those situations when, at the election of the agency, there may be negotiations with the Union as to those particular situations described in § 7106(b)(1)." Id. at 2-3 (footnote omitted). The Agency claims that negotiations are not required because "[n]one of the conditions described in § 7106(b)(1) are relevant to this dispute." Id. at 3.

IV. Analysis and Conclusions

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.

The Arbitrator found that the Agency had "the right . . . to designate its Director of Personnel as the management official to whom [U]nion requests for meeting space . . . must be directed, under Article 9, Section 1" of the parties' agreement. Award at 9. The Arbitrator concluded that the Union "violated Article 9, Section 1" of the agreement by failing to request space from the designated official. Id. The Arbitrator noted, in this regard, that although "[u]nder the collective bargaining agreement, the [Agency] has the unfettered management right to let the Director [of Personnel] act as its designee," the role of the designee was "simply to 'permit the use of available space for [U]nion meetings.'" Id. at 8.

In short, the Arbitrator interpreted the parties' agreement as enabling the Agency to designate the official to receive requests for use of Agency facilities. It is clear, in this regard, that the Arbitrator's interpretation of the parties' agreement was based, at least in part, on his interpretation of the Agency's rights under the Statute. It is also clear, however, that the issues before the Arbitrator, and the issues resolved by the Arbitrator, were grounded in the parties' dispute over the interpretation and application of Article 9 of their agreement. The issues before the Arbitrator were whether the Agency had the right "under Article 9, Section 1" to designate the Director of Personnel and whether the Union "violate[d] Article 9, Section 1[.]" Id. at 5. As noted above, the Arbitrator found a violation of the parties' agreement.

The Union asserts that the designation of the Director of Personnel was "a change in the negotiated agreement," which could be made only pursuant to mid-term negotiations. Exception at 2. The Union maintains, in this regard, that the Arbitrator "overlooked" Article 5, Section 2B, which "states that the Union may negotiate procedures which the Bank Board management will observe in exercising any authority under this section." Id. at 1. According to the Union, the Agency effected "a change in the negotiated agreement . . . ." Id. at 2.

The Union clearly disagrees with the Arbitrator's interpretation of Article 9 of the parties' agreement. The Union has not, however, demonstrated that the Arbitrator's interpretation is inconsistent with law, rule, or regulation so as to be deficient under section 7122(a)(1) of the Statute. We note, in this regard, that although the Arbitrator discussed the parties' rights and obligations under section 7106 of the Statute in the course of interpreting the parties' agreement, his award is confined to interpretation of Article 9, Section 1. Indeed, as the Arbitrator framed the issues, Article 9 was all that was before him. Consequently, we do not address whether, or to what extent, his award would be deficient if it were based solely on statutory provisions.

As the Arbitrator's award, by its terms, is confined to the parties' dispute over interpretation of their agreement, the Union's contention that the Arbitrator should have interpreted the agreement differently provides no basis for finding the award deficient. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 463 (1990) (IRS).

Moreover, to the extent that the Union's exception constitutes an allegation that the award fails to draw its essence from the parties' agreement, that exception also does not provide a basis for finding the award deficient. To demonstrate that an award fails to draw its essence from an agreement, it must be shown 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. See, for example, IRS, 36