38:0221(24)AR - - Navy, Marine Corps, Finance Center, Kansas City, MO and AFGE Local 2094 - - 1990 FLRAdec AR - - v38 p221



[ v38 p221 ]
38:0221(24)AR
The decision of the Authority follows:


38 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

UNITED STATES MARINE CORPS

FINANCE CENTER

KANSAS CITY, MISSOURI

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2094

(Union)

0-AR-1745

DECISION

November 19, 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 Charles E. Clark filed by the Union and the Department of the Navy (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. Neither party filed an opposition to the other party's exceptions.

The Arbitrator's award resolved two grievances. The Arbitrator denied the first grievance because he found that the Agency did not fail to recognize the Union as the exclusive representative, did not deny the Union access to unit employees, and did not pressure an employee to resign from her position. Therefore, the Arbitrator concluded that the Agency did not violate the parties' agreement. The Arbitrator sustained the second grievance because he found that the parties' agreement did not prohibit the Activity from negotiating over preparation time for bargaining.

For the following reasons, we conclude that neither party has established that the award is deficient under section 7122 of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

A. First Grievance

The grievant, an employee in the Activity's Finance and Accounting Branch, met with her supervisor to discuss errors in the grievant's work. The grievant requested Union representation during the meeting but was told that representation was not needed. During the meeting, the supervisor cautioned the grievant about disturbing her co-workers by talking.

After the grievant sought the Union's assistance, the Union requested that the supervisor provide the Union with the name of the co-worker who had complained about the grievant's talking and copies of all work errors discussed during the meeting. The Union's letter also stated:

It is the Local's intent to conduct an investigation into the complaints of the employee on 5 August at 10:30 a.m. I request your office provide a confidential meeting place to confer with the bargaining unit employees. I request the employees be informed of the time, date and place of this meeting. . . .

Award at 2. The grievant's supervisor responded to the Union's letter as follows:

. . . I will assure that any employees . . . who request and obtain prior approval to seek the assistance of a [U]nion representative regarding a work-related matter will be allowed the approximate amount of time stated by the employee for this purpose. At that time I will provide a suitable place near the work area at a time agreeable to all involved parties.

2. As you[r] request for information/data pertaining to errors on a particular employee is confidential in nature, please advise me if the employee has authorized you to represent her.

3. Information will be furnished upon receipt of the requested documentation.

Id. at 3.

Approximately 2 weeks later, the grievant resigned from her position with the Activity. In her resignation letter, the grievant stated, in part that she had "never had or expected to receive a bad or negative performance appraisal [and that she would not] now give [the supervisor] the opportunity to put such an appraisal in [her] records." Id. at 5.

A Union-filed grievance regarding the matter was not resolved and was submitted to arbitration. The Arbitrator stated that the issues before him were:

Did [the Activity], in violation of the Agreement between the Parties:--

a) Fail to recognize [the] Union as exclusive representative of unit employees?

b) Deny [the] Union access to bargaining unit employees for the purpose of investigating the complaint of an employee?

c) Did [the] Agency's violations, and harassment, if any, pressure, coerce, intimidate and compel said employee to resign from employment with the Agency?

Id. at 1-2.

The Arbitrator noted that the grievant's competence was not an issue before him. He stated, in this regard, that "[t]he sole question is whether [the grievant's] resignation--unequivocal and unconditional upon its face--was voluntary, or forced by intimidation, threats, coercion or duress." Id. at 10.

The Arbitrator rejected the Union's arguments that the grievant had been "singled out" by her supervisor and that the grievant was not properly trained. Id. The Arbitrator found insufficient evidence to support the former argument, and, with respect to the latter argument, concluded that the errors in the grievant's work "appear[ed] indicative of [a] lack of attention on the part of the [grievant], rather than lack of any ability . . . which might be due to faults in training." Id. at 11-12. The Arbitrator concluded also that the evidence was "insufficient to show harassment, coercion or intimidation." Id. at 12.

The Arbitrator also rejected the Union's claim that the Activity had prevented the Union from investigating the grievant's case. The Arbitrator found that the Activity's response to the Union's request for a meeting was in "strict accord" with Article 8, section 8(b) of the parties' Master Labor Agreement (MLA), which provides:

The employee must obtain approval of his or her supervisor before meeting with a [U]nion representative. The [U]nion representative must assure that such arrangements have been made before the representative leaves his or her job site . . . .

Id. The Arbitrator found also that the Agency properly requested authorization from the grievant before disclosing the grievant's errors to the Union. The Arbitrator concluded that, as the evidence was "insufficient to support the allegations essential to [the] grievance[,]" there was no reason to set aside the grievant's resignation. Id. at 14.

B. Second Grievance

The second grievance resulted from negotiations over ground rules. During those negotiations, the parties reached agreement on all issues except the Union's proposal that Union representatives be provided official time to prepare for negotiations. The Activity asserted that providing official time to prepare for negotiations would violate the MLA.

The Union filed a grievance over the Activity's refusal to negotiate over the issue and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated that the issue before him was:

Does the Parties' Master Labor Agreement . . . prohibit an Activity (any Activity) from negotiating preparation time for negotiations in ground rules?

Id. at 2.

The Arbitrator noted the following provisions in the MLA:

Article 4: Bargaining During the

Term of the Agreement

. . . .

Section 3: Employee representatives of the council or a local union, as appropriate, will be on official time to the extent provided by [s]ection 7131(a) of the [S]tatute during negotiations . . . .

Article 8: Official Time and

Steward System

Section 1 Union officers and stewards . . . shall be designated by the union. These designated officers and stewards shall be recognized as employee representatives. Unless official time has been authorized by law or this MLA and approved according to the procedures of this Article, representational activity shall be performed on the nonduty time of the employees involved.

Id. at 31, 32; Attachment 1(b) to Agency's Exceptions at 5, 12.

The Arbitrator concluded that the contractual provisions were ambiguous. The Arbitrator found, in this regard, that Article 4, Section 3 addressed actual negotiations, or discussions, between the parties. In the Arbitrator's view, the Agency's argument concerning the bargaining history of that article concerned only the "occasion" of negotiations, not the actual discussions during negotiations. Award at 33 (emphasis in original).

As the Arbitrator concluded that the provisions were ambiguous, he examined the parties' past practice with respect to official time and found that the "evidence of past practice . . . [was] a clear and compelling illumination of the understanding between" the parties. Id. at 34. According to the Arbitrator, the Activity "routinely" notified the Union of proposed changes requiring bargaining and the Union's use of official time to do "whatever was necessary and appropriate to prepare the kind of response solicited" was approved. Id. The Arbitrator found that this practice was "mutually understood and consistently pursued until, after bargaining had in fact progressed through exchange of proposals . . . , [the Activity] repudiated the practice." Id.

Based on the ambiguity in the parties' contractual provisions and the past practice of granting Union officials official time to prepare for negotiations, the Arbitrator concluded that the MLA did "not prohibit an Activity (any activity) from negotiating preparation time for negotiations in ground rules." Id. at 37. The Arbitrator directed the Activity to "resume bargaining in good faith upon ground rules for negotiations." Id.

III. Exceptions

A. Union's Exceptions

The Union alleges that the Arbitrator's award concerning the first grievance is deficient because "it violates, through misinterpretation and misapplication, the negotiated Master Labor Agreement . . . ." Exceptions at 1. The Union contends that the Arbitrator erred in failing to find that the Agency denied the Union the right to conduct an investigation concerning the grievant's complaint. The Union also contends, in this regard, that the Arbitrator's award allows the Activity to "control the 'investigation' of a complaint," in violation of section 7116(a)(3) of the Statute. Id. at 3.

In addition, the Union alleges that the award is deficient because the Arbitrator failed to consider "the existing past practices concerning investigations." Id. at 4. According to the Union, the MLA does not establish procedures for the conduct of Union investigations. The Union states that it "established procedures, and the Agency complied with them." Id. at 5. The Union claims that by violating the parties' past practice, the Activity denied the grievant's rights, in violation of sections 7116(a)(8) and 7102 of the Statute.

B. Agency's Exceptions

The Agency contends that the Arbitrator's award concerning the second grievance is deficient because the Arbitrator's interpretation of the MLA is inconsistent with the wording of the MLA, a previous opinion of the General Counsel of the Authority, and section 7131(a) of the Statute. In addition, the Agency argues that the award is inconsistent with the Arbitrator's findings concerning the parties' intent in negotiating the MLA.

According to the Agency, neither Article 4 nor Article 8 of the MLA provides official time to prepare for negotiations. The Agency also notes that, in upholding the dismissal of an unfair labor practice charge, the General Counsel of the Authority found that the Union waived its right to negotiate over official time that would exceed that provided by section 7131(a) of the Statute. The Agency contends that the Arbitrator's "finding of ambiguity in these same provisions is insupportable and demonstrates a fundamental misunderstanding of the union's entitlement to official time under Sections 7131(a) and (d) of the Statute." Exceptions at 3 (emphasis in original). In this regard, the Agency notes that the Authority will reverse an arbitrator's award which does not draw its essence from a collective bargaining agreement.

The Agency also claims that the award is inconsistent with the Arbitrator's findings concerning the parties' intent in negotiating the MLA. The Agency claims that the Arbitrator "creat[ed] the very union entitlement we successfully avoided in . . . negotiations." Id. at 4-5.

IV. Analysis and Conclusions

A. First Grievance

The Union asserts that the Arbitrator's interpretation of the parties' agreement is inconsistent with the plain wording of the agreement and with the parties' past practice. We view the Union's exceptions as contentions that the Arbitrator's award fails to draw its essence from the parties' agreement.

For an award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact or so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement. Id. at 575-77.

The Union's exceptions do not demonstrate that the award is deficient under any of these tests. Based on his interpretation and application of Article 8 of the agreement, the Arbitrator found that the "Agency did not violate the Agreement . . . [or] fail to recognize [the] Union as exclusive representative of unit employees." Award at 37. Nothing in the Arbitrator's interpretation of the MLA is irrational, implausible, or unconnected to the wording of the agreement. In our view, the Union's contention that the Arbitrator misrepresented and misapplied the MLA constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement. This contention does not establish that the award fails to draw its essence from the agreement and provides no basis for finding the award deficient. See OSHA at 576.

Moreover, there is no basis on which to conclude that the award conflicts with section 7116(a)(3) of the Statute. That section makes it an unfair labor practice for an agency to "sponsor, control, or otherwise assist any labor organization . . . . " Nothing in the Arbitrator's award supports a conclusion that the Activity could, consistent with the award, violate section 7116(a)(3).

Similarly, there is no basis on which to conclude that the award interferes with the grievant's rights under section 7102 of the Statute. That provision provides, in relevant part, that employees have the right to "form, join, or assist any labor organization . . . ." The Union has not established that the award interferes with the grievant's rights under section 7102.

The Union has not demonstrated that the award concerning the first grievance is deficient. Accordingly, we will deny the Union's exception.

B. Second Grievance

The Agency contends that the award "manifestly disregards the language of the contract[]" and is inconsistent with the Arbitrator's findings concerning the parties' intent in negotiating the agreement. Exceptions at 1, 4-5. We construe these contentions as assertions that the award fails to draw its essence from the parties' agreement.

As noted above, an award draws its essence from an agreement unless the award represents an irrational or implausible interpretation of the agreement, or is unconnected to the wording of the agreement. See OSHA at 575-77. The Agency has not demonstrated that the award is deficient under any of these tests.

The Arbitrator concluded that the relevant provisions of the MLA were ambiguous and, accordingly, interpreted those provisions in light of the parties' past practice. In concluding that the MLA was ambiguous, the Arbitrator noted that although the Activity had "successfully barred repeated Union efforts to secure explicit approval of official time to prepare for negotiations[,]" that bargaining history related only to "the occasion of negotiation[.]" Award at 33. The Arbitrator found this evidence "inapposite" to the issue of official time to prepare for the "discussions, themselves, as clearly contemplated by . . . Article 4, section 3." Id.

We find nothing in the plain wording of the provisions which demonstrates that the Arbitrator's interpretation is irrational or implausible. In our view, the Agency's arguments that the award fails to draw its essence from the agreement, as well as its argument that the award is inconsistent with the Arbitrator's findings concerning the parties' intent in negotiating the agreement constitute nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement, and his reasoning and conclusions. These contentions do not establish that the award is deficient. See OSHA at 575. See also, for example, National Federation of Federal Employees , Local 1263 and U.S. Department of Defense, Defense Language Institute, Presidio of Monterey, 34 FLRA 697, 701-02 (1990).

It is also clear, in this regard, that the award does not conflict with section 7131(a) of the Statute. Section 7131(a) provides, in relevant part, that, in certain circumstances, employees representing a union "shall be authorized official time" for negotiations. Although section 7131(a) does not require an agency to provide official time to prepare for negotiations, it is well-established that the parties may negotiate over, and agree to provide, official time to prepare for negotiations under section 7131(d) of the Statute:

[T]he amount of official time to be used by union negotiators to prepare for collective bargaining negotiations is a matter which falls within the duty to bargain as provided in section 7131(d) of the Statute, as distinguished from the use of official time by employees . . . in the actual "negotiation of a collective bargaining agreement" which is expressly authorized by section 7131(a) of the Statute itself . . . .

American Federation of Government Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California, 3 FLRA 305, 308 (1980) (emphasis in original).

Finally, we reject the Agency's assertion that the award is deficient because it is inconsistent with a previous ruling by the General Counsel. That ruling involved an appeal of a regional director's refusal to issue an unfair labor practice complaint against the Marine Corps Base at Camp Lejeune, North Carolina, in Case No. 4-CA-80308. The charge in that case alleged that the activity violated the Statute by (1) refusing to bargain over a union proposal providing official time for two union representatives, and (2) authorizing official time for only one representative. In denying the union's request for reconsideration of the General Counsel's decision to uphold the regional director's action, the General Counsel stated, in pertinent part:

Article 4, Section 3 of the parties' . . . agreement provides that in midterm negotiations, . . . [u]nion representatives "will be on official time to the extent provided by section 7131(a) of the Statute." Section 7131(a) expressly provides, in relevant part, that "[t]he number of employees for whom official time is authorized . . . shall not exceed the number of individuals designated as representing the agency for such purposes." The parties have clearly and unmistakably agreed to apply this provision to their midterm negotiations. Thus, it is apparent that the [u]nion has waived its right under section 7131(d) to negotiate over official time for its representatives which would exceed that "provided by section 7131(a) of the Statute." In view of this waiver, the [a]ctivity's refusal to bargain over the [u]nion's proposal was not violative of the Statute.

Attachment 1(c) to Agency's Exceptions at 2.

It is apparent from the General Counsel's ruling that the issue involved in Case No. 4-CA-80308 involved the local activity's obligation to bargain over a proposal relating to the number of union negotiators. Nothing in the ruling relates, in any way, to the obligation to bargain over preparation time. There is no basis, therefore, on which to find that the Arbitrator's award is inconsistent with the ruling. Compare U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 981-86 (1990) (award remanded to parties to request the arbitrator to interpret and clarify award in light of subsequent Authority decision involving issue before the arbitrator).

Moreover, the Agency has cited no authority for its ar