42:0775(50)AR - - DOD, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v42 p775
[ v42 p775 ]
The decision of the Authority follows:
42 FLRA No. 50
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mathew W. Jewett. The Arbitrator determined that the Agency did not violate the parties' collective bargaining agreement, pertinent law or Government-wide regulation by denying the grievant official time to accompany Occupational Safety and Health Administration (OSHA) inspectors on inspections of the Agency's premises. Accordingly, the Arbitrator denied the grievance.
The Union filed exceptions to the Arbitrator's award 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 did not file an opposition to the Union's exceptions.
For the reasons discussed below, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievance in this matter arose when the Agency denied the grievant, a Union steward, 32 hours of official time for the purpose of accompanying safety and health inspectors from OSHA (inspectors) on inspections of the Agency's work site. The inspections were conducted pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. § 668 et seq., Executive Order 12196, and 29 C.F.R. §§ 1960.1-1960.90, which delineate the Federal Employee Occupational Safety and Health Program.(*) When the parties were unable to resolve this dispute, the matter was submitted to arbitration.
After finding that the parties were unable to agree on the issue, the Arbitrator formulated the issue as follows:
Did the denial of 32 hours of official time to Union steward [the grievant] to accompany OSHA inspectors during the period 20 through 23 September 1988 violate Articles II and XXII of the Contract Agreement, 29 CFR 1960 or Executive Order 12196? If so, what is the remedy?
Award at 2.
According to the Arbitrator, the inspectors conducted their inspections of the Agency's work site during the period September 13-23, 1988. While the safety inspections were being conducted, the grievant requested official time for the purpose of accompanying the inspectors. During the week of September 12, 1988, the grievant received the official time she had requested. For the week of September 19, 1988, the grievant requested 40 hours of official time, but was granted only 8 hours and denied the remaining 32 hours. The grievant was on official time on September 19, worked 8 hours on September 20 and was on sick leave September 21-23.
The Arbitrator found that in denying a portion of the official time requested by the grievant, the Agency also informed the Union that "it was free to select another representative" to accompany the inspector. Id. at 3. The Arbitrator found, however, that the Union did not select another representative in the grievant's absence.
The Arbitrator then examined the pertinent provisions of law and regulation and found that the regulatory and statutory sources for the inspection program "do not specify that the [Union's] representative must be the same one for the entire period of the inspection." Id. at 6. Rather, the Arbitrator found that OSHA regulations specify that different union representatives, as well as employer representatives, may accompany inspectors during the various phases of the inspections. The Arbitrator also noted that the parties' collective bargaining agreement was silent with regard to the designation of a representative. He stated that the agreement provides only that "[t]he Union will be permitted to have a representative accompany agency Safety [i]nspectors during their inspections . . . ." Id. Finally, the Arbitrator noted that the grievant "'had no safety training'" and concluded that the Union's insistence on the grievant as its representative to accompany the inspectors is "a moot point." Id. at 7.
The Arbitrator then observed that the parties had previously litigated the issue of official time in a proceeding before the Federal Service Impasses Panel (Panel). Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and Local 1770, American Federation of Government Employees, AFL-CIO, 88 FSIP 37 (Feb. 25, 1988) (Fort Bragg). The Arbitrator first took note of the Panel's finding that the parties could agree to "cap the total amount of official time available to Union representatives." Award at 7. The Arbitrator then found, as to the dispute before him, that "Union testimony confirmed that the Agreement between these two parties provides 'stewards were given up to 10 hours in a two-week period[,]'" for representational purposes. Award at 8. The Arbitrator rejected the Union's contention that the grievant had the "right to remain with the inspectors for the entire time of their visit because she had been the [Union's] selected representative." Id. The Arbitrator found that this was an erroneous interpretation of the agreement and failed to take account of the fact that the grievant's work group faced an "unusually heavy load . . ." at the time of the inspections because it was the "'end-of-year close-out of all of [the Agency's] records[.]'" Id.
The Arbitrator determined that the grievant was not "the proper choice . . ." as the Union's representative to accompany the OSHA inspectors for the entire time of the inspection, essentially for two reasons. Id. at 9. First, the Arbitrator found that, as a Union steward, the grievant was limited by the parties' agreement to 10 hours of official time for each bi-weekly period. Second, the Arbitrator found that the grievant did not have "any unusual qualification . . ." as a safety representative. Id. Finally, the Arbitrator determined that due to the unusually heavy load that the grievant's work group was faced with at the time, the Union's demand that the grievant be the representative failed to take into account Article III of the parties' collective bargaining agreement, under which management has the right to direct employees and, thus, to require the grievant's presence at the work site.
Consequently, based on his interpretation of applicable law, the Panel decision, the parties' agreement, and the practices between the parties, the Arbitrator found that the grievant's use of official time was properly restricted. The Arbitrator found that the grievant's selection to accompany the OSHA inspectors did not entitle her to "unlimited time away from the job." Id. Accordingly, as his award, the Arbitrator concluded the following:
The denial of 32 hours of official time to Union steward [the grievant] to accompany OSHA inspectors during the period 20 through 23 September 1988 did not violate Articles II and XXII of the Contract Agreement, 29 CFR 1960 or Executive Order 12196. The grievance is, therefore, denied.
Id. at 10.
III. The Union's First Exception
A. The Union's Position
In support of its first exception, the Union asserts that the award is contrary to sections 7102(1) and 7116(a)(1) of the Statute by interfering with and restraining the right of employees to act for a labor organization in a representative capacity. The Union argues that OSHA regulations entitle the union representative to accompany OSHA inspectors "without any arbitrary Official Time cap." Exceptions at 4.
The Union also argues that the award contravenes sections 1-201(f) and (i) and 1-701 of Executive Order 12196. According to the Union, these provisions require the head of the Agency to establish procedures to ensure that employee participation in the OSHA program is not restrained or interfered with, and that employee representatives may accompany inspectors on safety inspections of agency work places on official time.
The Union also contends that the award is contrary to 29 C.F.R. §§ 1960.1(d) and (e), 1960.10(d), and 1960.27(a). The Union asserts that these regulations "require specific unrestricted opportunity for employee participation" in the OSHA program that precludes the imposition of "an arbitrary cap by the Employer or an arbitrary cap as imposed by the [Panel] . . . ." Id. at 4 (emphasis in original). The Union also notes that these regulations are designed to be consistent with the Statute, which authorizes the Union to designate an employee representative to accompany OSHA inspectors and to negotiate limits on the use of official time, which has not occurred here. Finally, the Union asserts that the purpose of having an employee representative accompany inspectors is to apprise the representative of any existing or potentially unsafe or unhealthy working conditions and that the Arbitrator was mistaken in concluding that there was a requirement that its representative should "acquire any level of expertise prior to serving in that capacity." Id. at 5 (emphasis in original).
B. Analysis and Conclusions
We conclude that the Union's exception fails to establish that the award is deficient. Essentially, the Union argues that it has the right to designate the representative who will accompany safety inspectors and that Executive Order 12196 and OSHA regulations allow an unlimited amount of official time for this purpose. The Union argues that in denying the grievance, the Arbitrator failed properly to apply law, including the Statute, and regulation. The Union's position cannot be sustained.
First, the Arbitrator found that the Union's right to designate its representative was not denied. With regard to the availability of an unlimited amount of official time, the Arbitrator found that the parties had agreed to limit the amount of time available to each Union steward to 10 hours per 2-week period for the performance of representational duties. Notwithstanding the agreed-upon limitation, however, the Arbitrator found that the Union was free to designate another representative to accompany the inspectors. In making these findings, the Arbitrator examined the relevant statutory and regulatory provisions governing OSHA safety inspections and found that they permitted the designation of different representatives during the inspection process. The Arbitrator also examined the parties' collective bargaining agreement and found that it did not require a specific representative. It was on the basis of the Arbitrator's examination and application of these authorities that the grievance was denied.
The Union has failed to establish that the award is inconsistent with the Statute, law, or regulation. As noted, the Arbitrator examined relevant law and regulation in assessing the Union's claim that the grievant was entitled to an unlimited amount of official time to accompany inspectors. Nothing contained in the Union's arguments in support of its exception demonstrates that the Arbitrator misapplied the relevant authorities. Rather, the Union is expressing disagreement with the Arbitrator's reasoning and conclusions and is attempting to relitigate the merits of the dispute. This exception does not constitute a basis on which to find the award deficient. See, for example, U.S. Department of the Air Force, Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 88 (1991).
IV. The Union's Second Exception
A. The Union's Position
In its second exception, the Union argues that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases. Specifically, the Union contends that the award is deficient because: (1) it fails to draw its essence from the parties' agreement; (2) it is premised on irrelevant or unavailable evidence; and (3) it is based on contradictory findings and analysis.
In support of its argument that the award fails to draw its essence from the agreement, the Union simply states that the Arbitrator ignored Article II, Section 1 of the agreement, which provides that all matters covered by the parties' agreement are governed by existing or future laws and regulations of appropriate authorities, namely, Government-wide regulations. As we understand the Union's argument, the Arbitrator failed to "read into" the collective bargaining agreement the unlimited availability of official time set forth in OSHA regulations.
B. Analysis and Conclusions
We conclude that the award is not deficient on grounds similar to those applied by Federal courts in private sector labor-management relations. First, we address the Union's contention that the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient on this basis, 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 the 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, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 771 (1990) (Social Security Administration).
Here, the Arbitrator was presented with the pertinent provisions of the parties' collective bargaining agreement and the regulatory and statutory provisions regarding the use of official time by union representatives while accompanying inspectors. The Arbitrator found that the parties had agreed to limit the amount of time available to union stewards for representational purposes and, on this basis, found that the restrictions imposed on the grievant's use of official time did not violate the collective bargaining agreement. There is no basis on which to conclude that the arbitrator's interpretation is irrational, unfounded in reason and fact, manifestly disregards the agreement or is implausible. Accordingly, we find that the award did not fail to draw its essence from the agreement.
The Union's second contention in support of this exception, that irrelevant or unavailable evidence was used, relates to the Arbitrator's examination of the Panel's decision in Fort Bragg. The Union states that "[t]he important issue when reviewing the Impasse Decision is the impact of the Decision on Government[-]wide Regulation and Presidential Order." Exceptions at 6. The Union also advances several arguments concerning the merits of the Panel decision. The Arbitrator looked to the decision in Fort Bragg to find that the parties could place a cap on the amount of official time that would be available for representational purposes. The Arbitrator then reached the independent finding, based on the Union's testimony, that the parties had in fact agreed to limitations on the amount of official time available for use by stewards. We find that the Union is merely disagreeing with the Arbitrator's examination and evaluation of the evidence. Such a contention does not provide a basis for finding an award deficient. See Social Security Administration, 37 FLRA at 774. Additionally, to the extent the Union is attempting to argue the merits of the Panel decision, such arguments are not properly before the Authority in this proceeding.
Finally, the Union's contention that the award is deficient because it is based on findings of fact and analysis that "are contradictory and non-supportive of the Award[,]" Exceptions at 6, is premised on the following points: (1) the Arbitrator's finding that the Union chose not to designate another representative after the grievant was denied official time when, in fact, the Union designated other representatives for parts of the inspection; (2) the Arbitrator's finding that the grievant was denied 32 hours of official time and his statement that her right to official time had not been denied; and (3) the Arbitrator's agreement with the Union that regulations establish the Union's right to choose a representative and the Arbitrator's subsequent finding that the collective bargaining agreement does not reference a specific representative.
We interpret the first point as a contention that the award is based on nonfact. To demonstrate that an award is based on a nonfact, the party making such a claim must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630, 633 (1990). The Union's contention fails to establish that the central fact underlying the Arbitrator's award is clearly erroneous, but for which a different result would have been reached. The Arbitrator's statement that the Union did not choose another representative, even if clearly erroneous, was not central to his finding that the Agency's restriction on the amount of official time available to the grievant did not violate the parties' collective bargaining agreement.
As to the other statements made by the Arbitrator that the Union claims are contradictory and not supported by the award, we find that the Union is merely disagreeing with the Arbitrator's interpretation and evaluation of the evidence. Specifically, we find that the Arbitrator's statement that the grievant was denied 32 hours of official time and his statement that the right to official time was not denied are not contradictory. In the first of these statements, the Arbitrator obviously was referencing the amount of time requested by the grievant that was in excess of the time the parties agreed would be available for use by the steward. This is not inconsistent with the second statement, which reflected the Arbitrator's finding that under the relevant authorities, the Union had the right to designate different representatives to accompany inspectors. It was this latter right that the Arbitrator found was not denied.
The additional statements that are alleged to be contradictory and not supported by the award relate to the Arbitrator's finding that the Union had a right to designate its representative to accompany inspectors and his finding that there was no right to designate a specific representative. We find that these statements are not inconsistent. The Arbitrator found that the relevant statutory and regulatory authorities did not specify the particular representative who would accompany inspectors, not that the Union was prevented from designating a particular representative. Rather, consistent with those authorities, the Arbitrator found that the Union could designate its representative.
As we stated above, the Union's claims merely express disagreement with the Arbitrator's interpretation and evaluation of the evidence. The Union's exception provides no basis for finding the award deficient.
The Union's exceptions are denied.
1-2. Heads of Agencies.
1-201. The head of each agency shall:
(a) Furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.
. . . .
(f) Establish procedures to assure that no employee is subject to restraint, interference, coercion, discrimination or reprisal for filing a report of an unsafe or unhealthy working condition, or other participation in agency occupational safety and health program activities.
(i) Assure that employee representatives accompany inspections of agency workplaces.
1-7. General Provisions.
1-701. Employees shall be authorized official time to participate in the activities provided for by this order.
§ 1960.1 Purpose and scope.
. . . .
(d) Section 19 of the [Occupational Safety and Health Act] Act and the Executive Order  require specific opportunities for employee participation in the operation of agency safety and health programs. The manner of fulfilling these requirements is set forth in part in these program elements. These requirements are separate from but consistent with the Federal Service Labor Management Relations Statute (5 U.S.C. 71) and regulations dealing with labor-management relations within the Federal Government.
(e) Executive Order 12196 and these basic program elements apply to all agencies of the Executive Branch. They apply to all Federal employees. They apply to all working conditions of Federal employees except those involving uniquely military equipment, systems, and operations.
§ 1960.10 Employee responsibilities and rights.
. . . .
(d) Employees shall be authorized official time to participate in the activities provided for in section 19 of the Act, Executive Order 12196, this part, and the agency occupational safety and health program.
§ 1960.27 Representatives of officials in charge and representatives of employees.
(a) Safety and health inspectors shall be in charge of inspections and may interview any employee in private if the inspector deems it necessary. A representative of the official in charge of a workplace and a representative of employees shall be given an opportunity to accompany Safety and Health Inspectors during the physical inspection of any workplace, both to aid the inspection and to provide such representatives with more detailed knowledge of any existing or potential unsafe or unhealthful working conditions. The representative of employees shall be selected by the employees. Additional representatives of the official in charge and additional representatives of employees may accompany the Safety and Health Inspectors if it is determined by the inspector that such additional representatives will further aid the inspection. Different representatives of the employer and employees may be allowed to accompany the Inspector during each different phase of an inspection.
(If blank, the decision does not have footnotes.)
*/ The pertinent sections of Executive Order No. 12196 and the Code of Federal Regulations are set forth in an Appendix to this decision.