42:1034(73)AR - - Treasury, IRS, Ogden Service Center, Ogden, UT and NTEU Chapter 67 - - 1991 FLRAdec AR - - v42 p1034



[ v42 p1034 ]
42:1034(73)AR
The decision of the Authority follows:


42 FLRA No. 73

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

OGDEN SERVICE CENTER

OGDEN, UTAH

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 67

(Union)

0-AR-2076

DECISION

October 24, 1991

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 John Phillip Linn 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 Union filed a grievance alleging that the Agency violated the parties' agreement by prohibiting the Union from holding fundraising activities on Agency property. The Arbitrator sustained the grievance and ordered the Agency to cease its ban on Union fundraising and to permit the Union to engage in fundraising activities consistent with the fundraising activities conducted by other employee organizations.

For the following reasons, we find that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

For the period from August 1988, through December 1989, the Union planned to conduct at least two fundraising events per month on the premises of the Agency's Ogden Service Center (OSC). During August 1988, the Union held a used book sale and a brownie sale on OSC's premises. During a bake sale on OSC premises on September 6, 1988, the Agency's Resources Management Division Chief informed the Union president that there might be a problem with the Union's fundraising activities because "it might violate the IRS Rules of Conduct." Arbitrator's Award at 3. "Until that time, management had not challenged the Union's fund raisers in any way." Id.

Thereafter, the Union did not conduct its next four proposed fundraising events, but did advertise a raffle scheduled for November 1988. Sometime prior to Thanksgiving, the OSC Director met with the Union president and steward "to tell them that he felt it was 'inappropriate' for the Union to be conducting fund raisers" and he asked them to "hold off on any further fund raisers until he and [the Union president] reached a decision on whether it was a prohibited activity." Id.

By letter dated January 5, 1989, the Union president stated to the OSC Director that she had found nothing prohibiting the Union from conducting fundraising activities on Agency property when the Union participants were on their own time. The Union president indicated that such Union fundraising activity was being conducted at other Agency service centers and that "until the problem was solved at the national level, [the Union] would proceed with its sales activities as before." Id. at 4. Following a meeting with the Union president, the OSC Director stated in a letter to the Union president dated January 18, 1989 that "it was his position that it was inappropriate for [the Union] to conduct fund raising activities on government property" and requested that the Union "please refrain from conducting fund raising activities on government property." Id.

In a letter to the OSC Director dated January 24, 1989, the Union president stated that the OSC Director's January 18 letter was contrary to "a long-standing practice of having fund raising sales at OSC" and that "the Union's next bake sale would be held as scheduled on 2-8-89." Id. By letter dated January 31, 1989, the OSC Director restated his position and suggested that the Union:

might challenge his decision by filing a ULP [unfair labor practice], and warned, "If you conduct a bake sale as you stated in your letter, it will be considered an act of insubordination. As such, appropriate disciplinary action may be taken against anyone involved with the bake sale."

Id. The Union president responded to the letter, stating that the Union "believed it was being subjected to disparate treatment" because the Employees' Association (EA) and the Child Care Center regularly conducted fundraising sales on Agency property. Id.

On February 15, 1989, the Union filed a grievance alleging that management violated various provisions of the parties' contract and section 7116(a)(1), (2), (3), and (5) of the Statute by refusing to permit the Union to conduct fundraising activities on the Agency's premises. The grievance requested that the Agency provide the Union with the bylaws, regulations, financial status and financial reports, and other documents governing the EA before a Step 1 grievance meeting was to be held. As a remedy, the grievance requested removal of the restraint of sales by the Union, posting of a cease and desist notice, payment of money that the Union would have received had the sales been allowed, an acknowledgment of public wrongdoing by the Agency, and any other appropriate relief.

By memorandum delivered to the Union on February 22, 1989, the Agency's Personnel Branch Chief provided the Union with pages from the Treasury Department Personnel Management Manual (TPMM) regulation concerning recreation associations and a copy of the EA bylaws. The Personnel Chief "did not provide the requested EA financial status and financial reports[,]" stating that he did "'not see the relevancy of the financial status and financial reports of the Employee's Association in relationship to [the Union] conducting fund raisers at Ogden Service Center.'" Id. At the conclusion of his memorandum, the Personnel Chief requested the Union president to "call to schedule a meeting on this matter when you are ready to proceed." Id. at 5.

In a letter dated March 8, 1989, the Union's National Field Representative explained to the Personnel Chief the relevance of the financial status records and reports to the grievance in this case and asked that the information be provided within 5 workdays from the Agency's receipt of the letter "so that the grievance could be processed as soon as possible." Id. By letter to the Union steward dated March 23, 1989, the Personnel Chief stated that "he still failed to see the relevance of the financial reports in relationship to the grievance" and asked the Union steward to "call to schedule a meeting on this matter." Id. (1) The Union steward understood that the Personnel Chief was requesting that a Step 1 grievance meeting be scheduled. The Union steward and the Personnel Chief "orally agreed to delay setting a date for the Step 1 grievance meeting until [the Union president and the OSC Director] had completed their discussions of the Union fund raisers." Id.

During the correspondence between the Union president and the OSC Director, the Union president indicated that all but one of the Agency's service centers "have fund raising sales in their buildings." Id. The Union president stated that it was "most peculiar that [the OSC Director] would disallow such sales at OSC and consider such sales as acts of insubordination." Id. Further, the Union president requested the Agency to provide any case or other document which permits the Agency to charge the Union with insubordination for conducting such fundraising activities.

On March 31, 1989, the OSC Director responded to the Union's request for supporting authority by stating that, in his view, the issue is not whether other organizations can conduct fundraising activities on Government property but whether the Union can legally conduct such activities on Government property. The OSC Director concluded that "it is [his] position that it is inappropriate for [the Union] to conduct fund raising activities on [G]overnment property." Id.

By memorandum dated April 18, 1989, the Union steward requested that the Personnel Chief schedule a meeting on the grievance and noted that, under the parties' agreement, "the meeting at your level must be held within seven days from this date." Id. The meeting was conducted on April 27, 1989. During the meeting, the Personnel Chief raised the issue of whether the grievance was prosecuted in a timely manner.

Following the meeting, the Personnel Chief issued the Agency's Step 1 response to the Union steward denying the grievance. The response stated that the Agency: (1) "found no discrimination because other organizations conducting fund raising activities at OSC were different from [the Union]"; (2) could find no authority allowing the Union to conduct fundraising activities on government property; and (3) questioned whether the grievance was timely. Id. at 6.

The Step 2 meeting was conducted on May 23, 1989, and "there was no discussion of untimely prosecution of the grievance." Id. Following the Step 2 meeting, the Agency issued a response to the grievance "which in no significant way differed from [the] Step 1 response." Id. The Step 3 meeting was held on June 14, 1989, and, after that meeting, the Agency issued a response "in essentially the same language as had appeared in the earlier responses." Id. The parties were unable to resolve the grievance and the matter was submitted to arbitration.

The parties did not stipulate the issues before the Arbitrator. The Arbitrator addressed the following issues: (1) whether the grievance was timely filed; (2) whether the Agency violated section 7116(a)(1) and (2) of the Statute; (3) whether the Agency violated section 7116(a)(1) and (5) of the Statute; and (4) whether the Agency "was arbitrary and capricious in disallowing [the Union] to hold fund raisers[.]" Arbitrator's Award at 22.

A. Whether the Grievance Was Timely Filed

The Agency argued before the Arbitrator that the Union failed to timely pursue the grievance when it did not file the grievance within the 15-day deadline and again when the Union did not pursue the Step 1 grievance meeting within the 7-day period mandated by the parties' agreement. The Agency maintained that measuring the date of the grievance from either the time that the Union was first put on notice of the OSC Director's policy against Union fundraising (October/November 1988) or the time when the OSC Director wrote to the Union president to "reiterate[] his ban against [Union] fund raisers" (January 12 or 18, 1989), the grievance would be untimely. Moreover, the Agency argued that there was no oral agreement between the parties to postpone the Step 1 grievance meeting and that, therefore, the fact that the Union scheduled the meeting 2 months after the grievance was filed showed that the grievance was not pursued in a timely manner.

The Union argued that the February 15, 1989, grievance was timely filed within 15 workdays from January 31, 1989, the date when the OSC Director first threatened to charge participants in the Union's fundraising activities with insubordination. The Union further argued that the time for the Step 1 grievance meeting had been extended pending the Agency's response to the Union's information request and again by oral agreement between the Union steward and the Agency's Personnel Chief. Further, the Union noted that "at no time did the Agency declare the grievance null and void under [the parties' agreement], which was the Agency's procedure in past cases in which management believed there was a clear failure to timely process the grievance." Id. at 10.

The Arbitrator found that the grievance was timely filed. The Arbitrator rejected the Agency's argument as to when the Union first learned of the Agency's decision to prohibit Union fundraising activities. According to the Arbitrator, it was not until the OSC Director advised the Union that "his position constituted a decision that was final in nature and would be the basis for imposition of disciplinary action for insubordination if the Union conducted a fund raising activity on OSC" that the OSC Director clearly expressed that his position "had solidified to a decision that was to govern Union conduct[.]" Id. at 11. At that point, the Arbitrator found that the Union was "required to recognize that management was effecting a decision that affected rights and benefits" of bargaining unit employees. Id. As the Arbitrator found that the OSC Director did not make his decision clear until January 31, 1989, and as the grievance was filed on February 15, 1989, the Arbitrator concluded that the grievance was filed in a timely manner.

As to the scheduling of the Step 1 grievance meeting, the Arbitrator found that the parties regularly have extended the 7-day time limit orally. The Arbitrator noted that the meeting was delayed because the Union waited for the Agency to respond to the Union's information request and because the Union steward and the Agency Personnel Chief waited to see the results of the correspondence between the Union president and the OSC Director. The Arbitrator further noted that "there was never any suggestion that any extension be placed in writing, and there was never any suggestion that the grievance would be null and void for lack of timely prosecution." Id. at 12-13. In these circumstances, the Arbitrator found that it was "plain by words and actions that there was agreement between the parties to extend the time for holding the Step 1 meeting" and that, therefore, the grievance was properly before him. Id. at 12.

B. Whether the Agency Violated Section 7116(a)(1) and (2) of the Statute

With respect to whether the Agency violated section 7116(a)(1) and (2) of the Statute, the Union argued before the Arbitrator that the Agency committed an independent section 7116(a)(1) violation by restraining employees who wished to assist the Union with its fundraising activities. Additionally, the Union argued that the Agency violated section 7116(a)(1) and (2) by prohibiting the Union from conducting fundraising activities while at the same time permitting similar organizations, such as the EA and the Child Care Center, to raise funds on Agency property. The Union alleged that the Agency "denied the use of its facilities to the Union for fund raisers because of [the Union's] status as a labor organization." Id. at 14. The Union maintained that the discriminatory treatment has "effectively given the Union inferior status in the eyes of unit employees, thereby discouraging them from joining the Union[.]" Id. at 15.

The Agency argued before the Arbitrator that the Union did not establish that the Agency violated any right under the Statute. Addressing the Union's claim that the Agency improperly discriminated against the Union, the Agency asserted that the Union did not show any disparate treatment because it did not prove that the EA and the Union are comparable entities. According to the Agency, the organizations are distinguishable because the purpose of the EA and its related organizations is to "engage in beneficial welfare activities for all IRS employees" whereas the Union's purpose is to represent employees in grievances, disciplinary actions, adverse actions, unfair labor practice cases, and contract negotiations. Id. To support its position that an agency may treat a union differently from other organizations with respect to access to agency facilities, the Agency cited U.S. Department of Housing and Urban Development, Region VIII, Denver, Colorado, Case No. 7-CA-923 (1981), ALJ Decision Reports, No. 9 (April 30, 1982) (HUD).

The Arbitrator found that the Agency's conduct in denying the Union and employees the use of Agency facilities for fundraising activities on the employees' own time "constitute[d] both a [s]ection 7116(a)(1) and (a)(2) ULP." Id. at 20.

The Arbitrator examined the functions and purposes of the Union and the Employees' Association and its "offshoots." Id. at 18. The Arbitrator found that the EA and other employee organizations "are customarily, routinely and with great frequency permitted to use the Agency's facilities for fund raising activities." Id. The Arbitrator also found that, based on their public expenditures, the EA and other employee organizations "do not have as their primary purpose the serving of employees' recreational needs[.]" Id. Consequently, the Arbitrator stated that he "does not find that the EA and its offshoot organizations are entitled to special privileges" under the Agency's regulation on recreation associations. Id.

As to the Union's functions and purposes, the Arbitrator noted that, like the EA, the Union "is concerned with the general welfare of unit employees, who make up the great majority of OSC employees." Id. at 19. The Arbitrator found that "[t]here is a continuing need for [the Union] to solicit by both direct and indirect means the assistance and membership of unit employees." Id. The Arbitrator noted that the Union seeks to "obtain and retain significant status in the minds of [u]nit employees" by engaging in fundraising "that will assist it to show its interest in all unit employees[.]" Id. Moreover, the Arbitrator noted that fundraising enables the Union "to obtain supplies, equipment and Union steward training to more effectively represent all unit members . . . in [the] administration of the collective bargaining agreement" and that such efforts "run[] to everyone's benefit[.]" Id.

As "conditions of employment must be read broadly under the Statute[,]" the Arbitrator concluded that the Agency discriminated against those employees desiring to assist the Union by threatening them with disciplinary action for insubordination, while at the same time permitting other employees to assist the EA and its "offshoots." Id. at 20. According to the Arbitrator, the Union "is detrimentally affected . . . when the Union is disallowed use of the Agency's facilities to engage in fund raisers[.]" Id. at 19. Accordingly, the Arbitrator found that the Agency violated section 7116(a)(1) and (2) of the Statute.

The Arbitrator rejected the Agency's reliance on HUD. The Arbitrator noted that HUD was a decision of an administrative law judge which was "without precedential significance." Id. at 17. The Arbitrator further noted that the judge "neither reached nor decided the question" of whether the "disparate denial of a union's request to use agency facilities to raise funds" could violate the Statute. Id. at 18.

The Arbitrator also found that section 7116(a)(3) of the Statute did not apply because the circumstances in this case "do not present a situation in which there need be any concern for partial conduct by the Agency as between labor organizations having equivalent status." Id. at 19. Therefore, the Arbitrator concluded that section 7116(a)(3) does "not constitute an excuse for the Agency to avoid permitting [the Union] from using its facilities to conduct fund raisers." Id.

C. Whether the Agency Violated Section 7116(a)(1) and (5) of the Statute

The Union argued before the Arbitrator that the Agency violated section 7116(a)(1) and (5) of the Statute when the Agency withdrew use of its facilities for Union fundraising activities without providing adequate notice to the Union and an opportunity to bargain. The Union maintained that there was a "past practice of the Union's conducting fund raisers over a four-year period before [the OSC Director's] 1-31-89 directive prohibiting such activity." Id. at 20. According to the Union, management had knowledge of and acquiesced in those activities because: (1) management participated in and communicated with the Union about the Union's fundraising activities; (2) the OSC Chief of Employee-Management Relations purchased a book at one of the Union's book sales; and (3) the fundraising activities were announced over the Agency's public address system and were conducted at the entrance to the only cafeteria.

The Agency argued before the Arbitrator that the Union failed to prove the existence of a past practice regarding Union fundraising activities at OSC. The Agency asserted that the Union's evidence of five fundraisers over a 5-year period was insufficient to establish a practice over a lengthy period of time. The Agency further asserted that the Union's alleged sales took place in the immediate area in which the EA fundraisers were held and that it "would have been easy for management to have confused [Union] sales with those sponsored by the EA." Id. at 21.

The Arbitrator found that "there was no past practice of Union fund raising which was knowingly acquiesced in by OSC management" and that, therefore, the Union has not shown that the Agency violated section 7116(a)(1) and (5) of the Statute by unilaterally prohibiting the Union from conducting fundraising activities on Agency property. The Arbitrator found that the number of Union sales and length of time over which they occurred was insufficient to establish a past practice. The Arbitrator also found that there was no evidence that the management official who purchased the book "knew that it was [a Union] book sale." Id. at 22. Accordingly, the Arbitrator found that "the Union's evidence does not meet its burden of proof regarding [the] establishment of a past practice or condition of employment about which the Employer had a duty to bargain." Id.

D. Whether the Agency's Action Was Arbitrary and Capricious

The Union argued before the Arbitrator that the Agency's action was arbitrary and capricious. The Union asserted that the Agency "did not articulate any competent evidence for its decision" and that it gave "four flimsy, pretextual reasons for its disparate treatment of the Union[.]" Id. The Union noted in particular the Agency's assertion that allowing the Union to hold fundraising activities would unlawfully aid the Union. The Union rejected this assertion and maintained that the Agency "refused to recognize that denying the Union fund raising opportunities that were provided to other employee groups and individuals looked as though management 'opposed' the Union." Id. at 23. Further, the Union noted that many of the Agency's other service centers have permitted the Union to hold fundraising activities on their premises and that "there is no evidence that an accusation of unlawful 'assistance' has ever been made against those service centers." Id.

The Agency contended before the Arbitrator that the Agency did not act arbitrarily or capriciously in distinguishing between the functions of the EA and those of the Union because the "distinction between the EA and its offshoots and the Union constitute[s] a factual basis for administering a rule regarding fund raisers on IRS premises." Id. at 24. The Agency further contended that "[n]othing in the contract gives the Union the right to conduct fund raising activities on the Employer's premises" and that the Union was "unable to cite any law, regulation, or case decision that authorized Union fund raisers on IRS property." Id.

The Arbitrator found that the Agency's refusal to allow the Union to hold fundraising activities on OSC property while allowing other employee organizations to do so was "based on personal predilection and opinions rather than upon any explication of law, rule or regulation." Id. The Arbitrator noted that the OSC Director expressed concern about Union fundraising activities as a legal issue but decided to ban Union fundraising and subject violators of his decision to discipline without first seeking a legal opinion from the Agency's legal staff. According to the Arbitrator, "[s]uch conduct appears arbitrary and capricious because the situation required legal analysis, not mere personal judgment." Id. at 25.

The Arbitrator also found that the Union was not limited to collective bargaining to obtain the privilege of conducting fundraising activities under the circumstances of this case. As "[n]o reason in fact or law existed for treating the Union differently from the EA and other [employee] organizations" with respect to fundraising activities and as other Agency service centers permitted Union fundraising events on Government premises, the Arbitrator concluded that the "discriminatory treatment of the Union was arbitrary conduct and an abuse of managerial discretion." Id.

E. The Remedy

Having found that the Agency violated section 7116(a)(1) and (2) of the Statute and acted in an arbitrary and capricious manner, the Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered the Agency to cease its ban on Union fundraising activities and to permit the Union to engage in fundraising activities consistent with the fundraising activity that is conducted by the other employee organizations. However, the Arbitrator denied the Union's request for money damages because he found that such damages were too speculative in the circumstances of this case.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator's award is deficient because: (1) Union fundraisers do not concern conditions of employment within the meaning of the Statute and, therefore, the Arbitrator's finding that the Agency violated section 7116(a)(1) and (2) of the Statute is contrary to law; (2) the Arbitrator exceeded his authority in ruling that the EA "is not entitled to facility privileges" under the Agency's regulation covering recreation associations; and (3) the Arbitrator misapplied the "arbitrary and capricious" standard of review. Agency's Exceptions at 2.

With respect to the Agency's first exception, the Agency asserts that the Union's fundraising activities do not concern collective bargaining or conditions of employment and, therefore, fall outside of the scope of section 7116(a)(1) of the Statute. In support of its position, the Agency notes the Arbitrator's finding that "the Union's evidence does not meet its burden of proof regarding [the] establishment of [a] past practice or condition of employment about which the Employer had a duty to bargain." Id. at 8 (emphasis omitted). Citing Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129 (1990) (Scott Air Force Base), the Agency argues that the Union did not have a right under section 7102 of the Statute to use Government property for fundraising activities because section 7102 "does not per se grant the Union a right to use the Agency's property." Agency's Exceptions at 14. Further, the Agency maintains that "absent an entitlement to utilize Agency facilities, either by contract or past practice, the Union could not possibly prove a violation of 5 U.S.C. § 7116(a)(1)" as section 7116(a)(1) violations are "integrally predicated on conditions of employment." Id. at 9.

With respect to the Arbitrator's conclusion that the Agency violated section 7116(a)(2) of the Statute, the Agency argues that "[t]here is no evidence in the record" that the Agency discouraged membership in the Union or that "any employee had ever refused to join the Union, or terminated their Union membership, because of the Union's inability to hold Union fund raisers on Government property." Id. at 9, 10 (emphasis in original). According to the Agency, the Union did not present "a scintilla of credible evidence" in this regard, and the "Arbitrator based his (a)(2) finding on self-serving statements of Union representatives[.]" Id. The Agency further claims that there was no evidence that management ever advised employees at large that Union fundraising activities were prohibited but that "to the extent that employees were ever even aware of management's prohibition, it was solely through [the Union]." Id. at 10.

Moreover, the Agency contends that even if the Union had established that the Agency discouraged Union membership, the Union "failed to carry its burden of pro[ving]" that such discouragement occurred in connection with hiring, tenure, promotion or other conditions of employment within the meaning of section 7116(a)(2) of the Statute. Id. at 11. The Agency maintains that, as the record does not support the Arbitrator's conclusion that the Agency discouraged Union membership in connection with conditions of employment, the Authority should reverse the Arbitrator's conclusion that the Agency violated section 7116(a)(2).

With respect to the Agency's second exception, the Agency asserts that the Arbitrator exceeded his authority when he "strip[ped] the Employee[s'] Association of its privileged status" and held that the EA did not qualify for the special privileges afforded organizations under the Agency's regulations. Id. at 14. The Agency contends that "only the [Agency] is authorized to interpret its regulations and determine what organizations, if any, qualify for the special privileges it chooses to bestow therein." Id. at 22. Accordingly, the Agency contends that the Arbitrator lacked the authority to conclude that whatever benefits, such as use of facilities, are afforded to the EA must likewise be afforded to the Union.

In view of the EA's bylaws and the testimony at the hearing, the Agency argues that "the Union failed to carry [its] burden of proof" that the EA and the Union are, "in fact, comparable or similar in terms of membership, nature and scope." Id. at 16. Rather, the Agency argues that this case presents "nearly identical facts" to Department of Agriculture, Farmers Home Administration, Case No. 4-CA-60155 (1987), ALJ Decision Reports, No. 68 (June 26, 1987), where an administrative law judge found that the agency did not violate the Statute when it denied the union access to the agency's internal mail system even though the agency permitted its employees' association free access to the system. Id. at 18.

The Agency notes that its regulations provide that an organization must meet six requirements to obtain various privileges, including the privilege of using Government facilities, and that the EA and its offshoot organizations met these requirements. The Agency further notes that its regulations state that employee recreation associations "are not entitled to rights and privileges granted to employee organizations under the provisions of TPMM, Chapter, 711, Labor-Management Relations[.]" Id. at 20 (emphasis in original). Therefore, the Agency maintains that Agency regulations distinguish between labor organizations and employee recreational associations and that the Arbitrator "totally disregarded this distinction in his finding of disparate treatment." Id. at 20-21.

Moreover, the Agency challenges the Arbitrator's reliance on an "isolated, unofficial half-page summary of Employee[s'] Association expenditures" to conclude that the EA spent less than twenty percent of its funds for recreational activities and, therefore, did not meet the requirement in the regulations that the organization have as its primary purpose the serving of the recreational and social needs of employees. Id. at 21. The Agency argues that the Arbitrator's conclusion "is not supported by the record" and notes that the Arbitrator "made this determination without access to or consideration of any official Employees['] Association financial records or reports." Id. at 22 n.29.

With respect to the Agency's third exception, the Agency argues that the Arbitrator misapplied the arbitrary and capricious standard when he concluded that the OSC Director acted arbitrarily and capriciously in prohibiting the Union from conducting fundraising activities on OSC property. The Agency maintains that the "evidence does not support such a conclusion in this case." Id. at 23. Further, the Agency contends that the Arbitrator "misplaced the burden of proof" when he found that the OSC Director "was in error because he did not provide a statute, regulation or case decision . . . in support of his prohibition." Id. at 24. According to the Agency, "the burden here was on [the Union] to prove some entitlement to utilize the Agency's premises for fund raising purposes" and "[t]he Union never did." Id. at 27. The Agency notes that management relied on HUD in formulating its position and states that this reliance was "[w]rong--maybe, but [was] not arbitrary and capricious." Id. at 25.

Moreover, the Agency challenges the Arbitrator's reliance on "irrelevant, surprise affidavit/declaration evidence from Union officials at other [Agency] Centers which claimed longstanding practices of Union fund raisers." Id. at 28. In any event, the Agency argues that the Union's "proffered statements were rebutted . . . by management witnesses." Id.

The Agency also disputes the Arbitrator's finding that the OSC Director failed to articulate a basis for his position or made up his reasons after the fact. According to the Agency, the Union and management engaged in protracted discussions and correspondence on this matter and, thus, "[t]he record totally refutes these allegations and conclusions." Id. at 29. Finally, the Agency maintains that management's actions cannot be considered as arbitrary and capricious because management repeatedly asked the Union to provide legal support for its position and the "record clearly shows [that] the first time the Union ever provided any alleged legal precedent" to support its position was in its Post-Hearing Brief to the Arbitrator. Id. at 32.

B. The Union

The Union asserts that the Arbitrator did not err in finding that the Agency violated section 7116(a)(1) and (2) of the Statute and maintains that the Agency is merely disagreeing with the Arbitrator's decision. The Union disputes the Agency's contention that access to Agency facilities does not constitute a condition of employment and argues that the Agency "misreads the Arbitrator's award and interprets 'conditions of employment' too narrowly." Union's Opposition at 6. The Union maintains that when the Arbitrator found that there was no past practice of permitting Union fundraising activities at Agency facilities, the Arbitrator "did not reach the question of whether such facilities were a condition of employment." Id. at 9. According to the Union, the Arbitrator's finding that the evidence was insufficient to establish a past practice or "condition of employment about which the Agency had a duty to bargain should it change the practice" is a "distinct issue from whether the Agency committed an independent (a)(1) and (a)(2) violation." Id. (emphasis in original). In support of its position, the Union notes that elsewhere in his decision, "the Arbitrator clearly finds that facilities used for fund raisers is a condition of employment[.]" Id.

The Union asserts that the Arbitrator properly found an independent violation of section 7116(a)(1) of the Statute because "employees were prohibited from assisting the labor organization by raising funds needed for viability and visibility, in violation of their [s]ection 7102 rights." Id. at 13. The Union challenges the Agency's argument that the Agency's actions did not discourage membership in the Union within the meaning of section 7116(a)(2) of the Statute and rejects the Agency's assertion that the Union needed to "produc[e] actual individuals who failed to join the Union because of the Agency's prohibition against fund raiser[s]." Id. at 11. Rather, the Union argues that the Arbitrator properly found that the Union proved discrimination because the "differing treatment was specifically premised on [the Union's] status as a labor organization." Id. at 14, citing the Agency's Post-Hearing Brief at 35. Further, the Union maintains that the Arbitrator appropriately concluded that the discriminatory treatment "had the effect of discouraging Union activity, including Union membership[.]" Id. at 12-13.

With respect to the Agency's second exception, the Union argues that the Arbitrator did not exceed his authority when he interpreted the Agency's regulation on recreation associations. The Union notes that the Agency specifically cited the regulation to support its argument that "the Employees['] Association was entitled to superior treatment to [the Union] in its use of Agency facilities." Id. at 17. Therefore, the Union argues that "[h]aving made [the regulation] part of the record in the arbitration, the Agency cannot now fault the Arbitrator for ruling on it." Id.

The Union notes further that the Agency "appears to be arguing that the award conflicts with the [Agency] regulation." Id. However, the Union rejects this argument and asserts that "based on the evidence before him, the Arbitrator properly determined that the cited regulation did not require or authorize beneficial treatment of the [Employees'] Association." Id. at 18. The Union notes the Agency's claim that the Arbitrator did not rely on official EA financial reports when he concluded that the EA was not covered by the regulation. The Union states that "the Arbitrator was forced to rely on the only document provided to the Union on the EA's financial picture" because "repeated requests . . . for more information on the EA's financial status were denied by the Agency." Id.

With respect to the Agency's third exception, the Union argues that the Arbitrator did not misapply the arbitrary and capricious standard of review. The Union states that the "standard generally requires that an Agency have some reasonable justifiable basis for its action." Id. at 19. The Union notes that "the arbitrary and capricious finding was not based on the Agency's mere refusal to permit Union fund raising activities but its complete inability to explain why fund raising by others was simultaneously permitted." Id. at 25. The Union maintains that the "factual record more than supports the Arbitrator's finding" and asserts that the "Agency cannot refute the Arbitrator's determination that its conduct was arbitrary and capricious by claiming that it relied on irrelevant case law and incorrect [s]tatutory citations." Id. at 20, 22.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency's exceptions provide no basis for finding the award deficient.

A. The Award Is Not Contrary to Law

1. Section 7116(a)(1) of the Statute

Section 7102 of the Statute provides that employees shall have the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal. The right to assist a union under section 7102 includes the right to solicit membership on behalf of the union during non-work time in non-work areas or in work areas where there is no disruption of work. See U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 712 (1990), petition for review filed as to other matters sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991); and General Services Administration, 27 FLRA 643, 646 (1987). Management's interference with this right violates section 7116(a)(1) of the Statute. See Department of Commerce, Bureau of the Census, 26 FLRA 719, 728 (1987) (Bureau of the Census) (management violated the employee's section 7102 right to solicit membership on behalf of the union by preventing the employee from showing a union film during non-work time in non-work areas); Department of Commerce, Bureau of the Census, 26 FLRA 311 (1987) (management violated the employees' right to solicit membership on behalf of a union during non-work time in work areas where there was no disruption of work).

The Arbitrator found that "[t]here is a continuing need for [the Union] to solicit by both direct and indirect means the assistance and membership of unit employees" and that the Union wished to engage in fundraising to "obtain and retain significant status in the minds of unit employees[.]" Arbitrator's Award at 19. The Arbitrator further found that the Agency threatened to discipline employees who participated in Union fundraising activities. As the Arbitrator found that the Agency threatened to discipline employees who exercised their section 7102 right to engage in solicitation activities for the Union, we conclude that the Arbitrator's ruling that the Agency violated section 7116(a)(1) of the Statute is not contrary to law. See Bureau of Census.

Citing Scott Air Force Base, the Agency argues that the award is contrary to law because the matter at issue is not protected by section 7102 of the Statute. In Scott Air Force Base, the Authority found that the right of the union to advertise in the agency's newspaper was not a protected right under section 7102 because providing the union with access to agency-controlled newspapers "require[d] the agency to provide the means for the communication" as opposed to the site of communication. Scott Air Force Base, 34 FLRA at 1136. Moreover, the Authority noted that "placing an advertisement in an agency-controlled newspaper is analogous to posting material on agency property" and that because a union does not have a statutory right to post material on an agency's property, the "union d[id] not have a statutory right under section 7102 to advertise in [the] agency's newspaper." Id.

Unlike the matter at issue in Scott Air Force Base, we find that the Union's fundraising activity in this case is protected activity within the meaning of section 7102 of the Statute. As we noted previously, the Arbitrator found that the Union engaged in fundraising activities as a means of soliciting the assistance and membership of unit employees. Moreover, the record indicates that the Union's fundraising activities were conducted during non-work time at the entrance to the cafeteria, a non-work area. Therefore, we find that employees who participated in the Union's fundraising activities were exercising their right under section 7102 to solicit on behalf of the Union and we reject the Agency's argument that the matter at issue in this case is not protected by section 7102 of the Statute.

We also note the Agency's claim that the Arbitrator should not have found that the Agency violated section 7116(a)(1) of the Statute because the matter at issue in this case did not concern a condition of employment. In support of its claim, the Agency relies on the Arbitrator's finding that, with respect to whether the Agency violated section 7116(a)(5) of the Statute, "the Union's evidence does not meet its burden of proof regarding [the] establishment of [a] past practice or condition of employment about which the Employer had a duty to bargain." Agency's Exceptions at 8 (emphasis omitted). We find, however, that the Agency misinterprets the Arbitrator's finding. In our view, the Arbitrator's finding does not address whether Union fundraising in this case was a condition of employment, but whether there was a change in the Agency's practice regarding Union fundraising that required the Agency to bargain. As the Arbitrator found that the Union had not established that there was a change over which the Agency had a duty to bargain, the Arbitrator concluded that the Agency did not violate section 7116(a)(5) of the Statute by failing to bargain.(2)

Contrary to the Agency's assertion, the Arbitrator found that, with respect to whether the Agency violated section 7116(a)(1), "conditions of employment must be read broadly under the Statute" and that the Union's fundraising activities in this case involved the section 7102 rights of employees to "solicit by both direct and indirect means the assistance and membership of unit employees." Arbitrator's Award at 19, 20. As the Arbitrator found that the Union's fundraising involved employees' rights under section 7102 of the Statute and as employees' section 7102 rights concern conditions of employment, we reject the Agency's assertion that the matter at issue in this case did not concern a condition of employment.

2. Section 7116(a)(2) of the Statute

Section 7116(a)(2) of the Statute provides that it is an unfair labor practice for an agency to encourage or discourage membership in a union by discrimination in connection with hiring, tenure, promotion, or other conditions of employment. The Authority has stated that the framework in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) will be applied to all cases of alleged discrimination under section 7116(a)(2). In Letterkenny, we reaffirmed that, in unfair labor practice cases:

[i]n all cases of alleged discrimination, . . . the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment.

Letterkenny, 35 FLRA at 118.

If the General Counsel makes the required prima facie showing, a respondent may seek to rebut that showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. Id. at 122-23. This analysis, we noted, is consistent with the framework applied in the private sector by the National Labor Relations Board. Letterkenny, 35 FLRA at 122. See also National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 507 (1990) (Family Support Administration).

Although the Arbitrator did not specifically apply the Letterkenny framework in making his determinations, we find that the Arbitrator's determinations are consistent with the requirements of Letterkenny. As to the first element noted in Letterkenny, the Arbitrator found that the OSC Director's action in prohibiting employees from assisting the Union in raising funds, while at the same time permitting employees to raise funds for other employee organizations, constituted discriminatory conduct which "detrimentally affected" and discouraged membership in the Union. Arbitrator's Award at 19. The Arbitrator further found that employees who participated in Union fundraising activities were engaged in solicitation activity protected by section 7102 of the Statute. As the Arbitrator found that employees who were subject to discriminatory action were engaged in protected activity, we conclude that the Arbitrator's findings satisfy the first element of Letterkenny.

As to the second element, the Arbitrator found that the reason that the OSC Director prohibited employees from engaging in fundraising activities in this case was that the fundraising was on behalf of the Union. As we noted previously, the Union's fundraising activity is protected activity within the meaning of section 7102 of the Statute. Because the Arbitrator found that protected activity was the reason that the OSC Director prohibited fundraising in this case, we conclude that the Arbitrator's finding satisfies the second element in Letterkenny that the protected activity was a motivating factor in the Agency's treatment of the employees. Accordingly, the Arbitrator's findings demonstrate that the Union presented a prima facie case of discrimination.

With respect to whether there was a legitimate justification for the Agency's action, the Agency presented no evidence or argument that it would have taken the same action if the employees had not been raising funds for the Union. Although the Agency argued that its regulation on recreation associations justified treating the Union differently from the other employee organizations, that argument was rejected by the Arbitrator. Accordingly, we conclude that the Arbitrator's ruling that the Agency violated section 7116(a)(2) of the Statute is not contrary to law. See United States Department of Transportation, Federal Aviation Administration, El Paso, Texas, 39 FLRA 1542 (1991); and Family Support Administration.

The Agency argues that "[t]here is no evidence in the record" that its action discouraged membership in the Union.  Agency's Exceptions at 9. This argument provides no basis for finding the award deficient. An arbitrator is not required to find that employees were actually discouraged from joining a union in order to find that the agency violated section 7116(a)(2) of the Statute. Rather, as noted above, whether an agency's action violates section 7116(a)(2) of the Statute is determined by application of the factors set forth in Letterkenny. We concluded above that the Arbitrator's determinations in this case are consistent with the requirements of Letterkenny. Accordingly, we reject the Agency's argument.

We also reject the Agency's contention that the Union "failed to carry its burden of pro[ving]" that any discouragement occurred in connection with conditions of employment. Id. at 11. We noted in our discussion of section 7116(a)(1) of the Statute that the Arbitrator found that employees who participated in fundraising activities on behalf of the Union were engaged in solicitation activity protected by section 7102 of the Statute. Further, we noted above that employees' access to OSC property for solicitation activities within the meaning of section 7102 of the Statute is a matter that concerns conditions of employment. As the employees' Union fundraising activity is a matter that concerns conditions of employment, we reject the Agency's contention to the contrary.

The Agency has failed to establish that the award is contrary to law. Accordingly, we will deny the Agency's first exception.

B. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 40 FLRA 644, 649 (1991); and U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160, 168 (1991). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues. For example, U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991) (Federal Aviation Administration).

One of the issues before the Arbitrator was whether the Agency violated section 7116(a)(2) of the Statute by prohibiting the Union from conducting fundraising activities on Agency property while at the same time permitting other employee organizations to conduct such activities. The Agency argued before the Arbitrator that the other employee organizations and the Union were not comparable entities and, therefore, there was no disparate treatment in its prohibition against Union fundraising activities. In support of this argument, the Agency noted the differing functions of the organizations and the fact that the fundraising activities of the Employees' Association "have been specifically approved by the Director in accordance with applicable rules and regulations." Agency's Post-Hearing Brief at 33.

To determine whether the Union was subject to disparate treatment in violation of section 7116(a)(2) of the Statute, the Arbitrator analyzed the relevant documents of record, including the Agency's regulation on recreation associations (Arbitrator's Award, Joint Exhibit 11C-1). The Arbitrator found that based on the information in the record on the EA's public expenditures, the EA and the other employee organizations "do not have as their primary purpose the serving of employees' recreational needs" and, therefore, the Arbitrator stated that he "does not find that the EA and its offshoot organizations are entitled to special privileges" under the Agency's regulation on recreation associations. Arbitrator's Award at 18.

We reject the Agency's contention that the Arbitrator exceeded his authority when he found that the EA did not qualify for the special privileges afforded employee recreation associations under the Agency's applicable regulation. The Arbitrator's finding is directly responsive to the issue of whether the Union and the other employee associations were comparable entities and, thus, whether the differing treatment received by the Union amounted to disparate treatment in violation of section 7116(a)(2) of the Statute. We note the Agency's claim that "only the [Agency] is authorized to interpret its regulations[.]" Agency's Exceptions at 22. However, the Agency regulation interpreted by the Arbitrator was part of the record submitted to the Arbitrator and directly related to the issue before him. Therefore, as the Arbitrator's discussion of the regulation is directly related to and responsive to an issue framed by him in the absence of a stipulation, we find that the Arbitrator did not exceed his authority. See Federal Aviation Administration.

Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990). To the extent that the Agency claims that the Arbitrator's finding is contrary to the Agency's regulation, we find that the Agency has not supported such a claim.

The Agency's regulation on recreation associations provides that organizations must meet six requirements to obtain various privileges, such as the use of Agency facilities. The first of these requirements is that the organization "must have as its primary purpose the serving of recreation and social needs of [Agency] employees." Arbitrator's Award, Joint Exhibit 11C-1. The Arbitrator examined the record evidence of the EA's financial status for 1988-89 and determined that the EA spent less than twenty percent of its funds for recreational activities and, therefore, did not meet the requirement in the regulation that the organization serve to primarily benefit the employees' recreational and social needs.

The Agency argues that the Arbitrator's conclusion "is not supported by the record" and that the Arbitrator "made this determination without access to or consideration of any official Employees['] Association financial records or reports." Agency's Exceptions at 22 n.29. As we noted previously, the Union requested copies of the EA's financial reports from the Agency, but the Agency argued that the information was not relevant to the grievance and refused to release more than a summary report of the EA's financial status that was published in the Agency's newsletter. The record contains only articles from the Agency's newsletter summarizing the EA's financial expenditures for 1987-88 and 1988-89. Accordingly, the Arbitrator relied on the only information in the record regarding the EA's financial status during the relevant time frame. The Agency's contention that the Arbitrator's reliance on this "unofficial" information was improper constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence in the record and provides no basis for finding the award deficient. Id. at 21. See, for example, U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 40 FLRA 88, 93 (1991) (Oklahoma City Air Logistics Center).

We find that the Agency has not shown that the Arbitrator's conclusion that an organization spending less than twenty percent of its funds on recreational activities does not serve to primarily benefit the employees' recreational needs is inconsistent with the plain wording of the regulation or is otherwise impermissible. Therefore, we find that the Agency has not shown that the Arbitrator's conclusion is contrary to the Agency's regulation. See, for example, U.S. Department of Defense, Dependent Schools and Overseas Education Association, 37 FLRA 226, 233 (1990), affirmed mem. sub nom. Mary E. Hartmann v. FLRA, No. 90-2699 (D.D.C. April 10, 1991). Having found that the Agency has not shown that the award conflicts with the Agency's regulation, we need not determine whether the regulation at issue in this case is a "governing" Agency regulation.

Accordingly, we will deny the Agency's second exception.

C. The Arbitrator's Finding that the Agency's Conduct Was Arbitrary and Capricious Is Not Deficient

The Arbitrator ruled that "[n]o reason in fact or law existed for treating the Union differently from the EA and other [employee] organizations" with respect to fundraising on Agency premises. Arbitrator's Award at 25. The Arbitrator found that the Agency's decision to ban Union fundraising and to subject violators of that decision to discipline was "based on personal predilection and opinions rather than upon any explication of law, rule or regulation." Id. at 24. The Arbitrator concluded that the OSC Director's decision was arbitrary and capricious because "the situation required legal analysis, not mere personal judgment." Id. at 25.

The Agency argues that the Arbitrator improperly relied on "irrelevant, surprise affidavit/declaration evidence from Union officials at other [Agency] Centers" and that the "evidence does not support" the Arbitrator's conclusion that the OSC Director acted arbitrarily and capriciously. Agency's Exceptions at 23, 28. We find that the Agency's argument constitutes disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, Oklahoma City Air Logistics Center.

The Agency further contends that the Arbitrator misapplied the arbitrary and capricious standard and "misplaced the burden of proof" because the burden was on the Union to provide legal support for its position. Agency's Exceptions