39:0383(27)AR - - Red River Army Depot, Texarkana, TX and NAGE, Local R14-152 - - 1991 FLRAdec AR - - v39 p383
[ v39 p383 ]
The decision of the Authority follows:
39 FLRA No. 27
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
RED RIVER ARMY DEPOT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
February 4, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to the award of Arbitrator Paula Ann Hughes filed by the Union pursuant to 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 did not file an opposition to the Union's exception.
The Arbitrator denied the grievance of an employee who was disciplined for being absent without leave (AWOL). The Union filed an exception to that part of the award in which the Arbitrator ruled that the Agency acted properly when it did not permit the grievant and the Union to use a conference
room or a private telephone to make a telephone call. For the reasons stated below, we deny the Union's exception.
II. Background and Arbitrator's Award
On December 6, 1989, the grievant requested annual leave to take her son to the doctor's office on the afternoon of December 7. On December 7, the grievant's supervisor denied the request for annual leave, citing workload considerations. On that day, the grievant left without permission at 2:45 p.m. to take her son to the doctor's office. The grievant was given a written reprimand for being absent without leave (AWOL) for 3 hours. She filed a grievance which was submitted to arbitration on the issue of whether the written reprimand was for just cause and, if not, what should be the remedy.
The Arbitrator found that there was no emergency and the Agency's action in denying the request for leave was not unreasonable in view of the absence of several employees, including the office manager, and the evidence regarding workload. The Arbitrator stated that if the grievant felt that the decision denying her leave was unfair, "she should have called the [U]nion official at that time to get a reading on what to do." Award at 5.
The Arbitrator also noted that another issue in the grievance concerned the Union's contention that it was denied the opportunity to use a conference room in which to meet with the grievant to discuss the problem of leave. The grievant also claimed that she was denied the opportunity to use a telephone in privacy. The Arbitrator stated:
[The grievant] says she didn't have privacy, but it wasn't clear in her testimony why she didn't contact her union representative. Article X does not give a right to private phones, but does give a right to phone utilization.
. . . .
The conference room issue is an appendage to this discussion. The union feels it was denied access to the conference room. The room was in use at the time and Article X, Section 1 does say 'space available basis'. There was not evidence that regular denial of the conference room to the union was a common practice by the agency which would put it in violation of the contract.
Award at 5.
The Arbitrator concluded that the grievant improperly left her job after being denied permission to do so for a situation that was not an emergency, and further found that the written reprimand and loss of 3 hours of pay was appropriate. Accordingly, the Arbitrator denied the grievance.
The Union contends that the Arbitrator's award is an erroneous interpretation of law, rules and regulations. The Union asserts that the Arbitrator "erroneously failed to find the Agency improperly denied the Union use of the union office or other space to make a private telephone call." Exception at 1. The Union contends that "[a]s a separate issue in the same grievance [concerning the denial of sick leave], the Union grieved the [A]gency's interference with the employee's right to union representation by denying the employee use of the Union 'office space' or another location to make a private telephone call." Id. The Union asserts that when the grievant realized that she was not going to be allowed to take annual leave to take her son to the doctor, she requested use of the telephone to contact her union representative.
According to the Union, the grievant was not able to use the telephone normally available to the Union in the privacy of the conference room and the Agency refused to allow her to use any other location to make a private telephone call. The Union asserts that the Agency instead suggested that the grievant use telephones "out in the open where other employees were working and where any conversation could be readily overheard. Such conduct clearly exerts a chilling effect on the employee's ability to seek union representation, and consult freely and candidly with his/her union representatives." Id. at 2.
The Union claims that the Arbitrator erred in viewing the matter strictly as a contractual interpretation issue and failing to find that this conduct constituted a violation of the employee's exercise of protected rights under section 7116(a)(1) of the Statute. The Union contends that management's conduct not only violated the Union's right to use Agency facilities, but also violated the employee's right to union representation. According to the Union, "[i]t is an established principle that the presence of management can inhibit the exercise of protected rights under the [S]tatute and the willingness of employees to ask questions and discuss their concerns with the Union." Id. at 3. The Union asserts that in this case, "management could clearly overhear whatever the grievant sought to discuss with her union representative." Id. In sum, the Union contends that management's conduct in this case violated the Statute and the Arbitrator erred as a matter of law in failing to find that the Agency had violated the Statute.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is contrary to law, rule, or regulation, particularly section 7116(a)(1) of the Statute. The Union has not shown that it was improperly deprived of the right to use office space in order to meet with the grievant or that the grievant was deprived of Union representation by the Agency's failure to allow the grievant to make a private telephone call. The Union has not shown that the Arbitrator failed to recognize any improper Agency action which could be found "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter[.]" 5 U.S.C. º 7116(a)(1).
The Arbitrator fully addressed the Union's concerns regarding the use of the conference room. The Arbitrator noted that Article X, Section 1 of the parties' collective bargaining agreement provides that facilities are made available to the Union on a "space available basis." Award at 5; see also Exception, Attachment (Article X, USE OF FACILITIES). The Arbitrator found that at the time that the grievant and the Union requested use of the conference room, "[t]he room was in use." Id. Further, the Arbitrator found that there was no evidence that the Agency regularly denied the Union use of the conference room in violation of the agreement.
The Union's exception that the Arbitrator improperly considered the issue of the use of the conference room to be a matter of contract interpretation instead of a statutory violation merely constitutes disagreement with the Arbitrator's finding of fact, her conclusion that the Union was not entitled to use the conference room at the time in question because the room was in use at that time, and with the Arbitrator's interpretation of the collective bargaining agreement to determine that the Union was only entitled to use a facility, such as the conference room, on a space-available basis. Such disagreement does not provide a basis for finding an award deficient. See U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362 (1990) (disagreement with arbitrator's interpretation and application of agreement provides no basis for finding an award deficient); U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1228 (1990) (arbitrator's interpretation of agreement provision concerning private office space for union was plausible and agency's exception constituted nothing more than disagreement with that interpretation); American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1111 (1990) (disagreement with arbitrator's findings of fact provides no basis for finding an award deficient under the Statute).
Further, we conclude that the Union has not established that the Arbitrator erroneously failed to find that the Agency deprived the grievant of any rights, including the right to union representation, in violation of section 7116(a)(1) of the Statute. The Arbitrator found that there was no right to use private telephones under the collective bargaining agreement, although there was a right to use telephones. The Union has not shown that the grievant was deprived of any right to consult with the Union and is merely disagreeing with the Arbitrator's findings and conclusions. See Social Security Administration and American Federa