47:0585(51)AR - - GSA Region 10, Auburn, WA and AFGE Council 236 - - 1993 FLRAdec AR - - v47 p585



[ v47 p585 ]
47:0585(51)AR
The decision of the Authority follows:


47 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

GENERAL SERVICES ADMINISTRATION

REGION 10

AUBURN, WASHINGTON

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2345

_____

DECISION

May 7, 1993

_____

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 Kenneth M. McCaffree filed by the Agency under section 7122(b) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

The Union filed a grievance contending that the Agency violated the parties' collective bargaining agreement by refusing to negotiate with the Union concerning portions of a license issued by the Agency to a private nonprofit organization to operate a child care center. The Arbitrator sustained the grievance and directed the Agency to negotiate with the Union over the matter.

For the following reasons, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The Willow Place Child Care Center (the Center) occupies a Government building under the Agency's jurisdiction. In 1988, the Auburn Christian Action Program (ACAP) became the provider of child care services at the Center. The Agency negotiated a license with ACAP governing the conditions under which ACAP was to operate. In late 1991, after some interim extensions of the license, the Agency renegotiated the license with ACAP.

As a result of the renegotiations between the Agency and ACAP, some changes were made in the section of the license entitled "special conditions." That section of the license contains, among other things, terms and conditions applicable to ACAP's provision of child care services at the Center. See Exceptions, Joint Exhibit 2 at 11-17.(1) Following the renegotiation between the Agency and ACAP, the Union was of the view that the child care facilities were under the exclusive control of the Agency and, pursuant to Article 8, Section 4C(10) of the parties' collective bargaining agreement, requested the Agency to negotiate over aspects of the special conditions in the license.(2) The Union's negotiation request raised issues concerning: "(1) priority for enrollment; (2) security checks for criminal history background; (3) role of the [Center's] Advisory Committee; (4) state and local licensing and day care requirements; and (5) discounts for enrollment of children of [the Agency's] employees." Award at 5 n.2.

The Agency acknowledged receipt of the Union's proposals and, after denying that any changes in unit employees' conditions of employment had been made, denied the Union's request for negotiations. The Union filed a grievance contending that the Agency violated the parties' agreement by refusing to negotiate concerning the special conditions of the license. The Agency denied the grievance and stated that under the specific terms of the license, the Center's operating policies are established by the licensee and reviewed by a parents' committee and that the Agency "'does not have the right to tell the licensee how to conduct its operations.'" Id. at 4 (quoting Joint Exhibit 2 at 5). The matter was subsequently submitted to arbitration.

The Arbitrator stated the issue before him as follows:

Did the Agency violate Article 8, Section 4C(10) or Article 4.1 of the negotiated agreement by denying the Union's request for negotiations concerning the "special conditions" applicable to the Willow Place Child Care Center? If so, what would be the proper remedy?

Id. at 2.

Before the Arbitrator, the Union asserted that the Agency was required to negotiate concerning the special conditions section in the license because: (1) the special conditions affected the conditions of employment of unit employees and, therefore, constituted a mandatory subject of bargaining under Article 4, Section 1 of the parties' collective bargaining agreement; and (2) the Agency has exclusive control of the child care facilities and, pursuant to Article 8, Section 4C(10) of the parties' agreement, must negotiate concerning this matter. The Agency contended that the special conditions section did not concern a working condition of bargaining unit employees. Relying on U.S. Department of Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point), the Agency asserted that the Union failed to establish that the special conditions section of the license vitally affects the working conditions of unit employees. The Agency also argued that this section of the license was not a matter over which the Agency was required to negotiate under Article 8, Section 4C(10) of the parties' agreement because the "Center is not under the exclusive control of the [Agency.]" Award at 7.

The Arbitrator found that under the language of the parties' agreement, the Agency "has obligated itself to negotiate with the Union on day care facilities[]" and, therefore, sustained the grievance. Id. at 8. The Arbitrator first noted that under Article 24 of the agreement, the parties had agreed "'to support quality child care services to meet the needs of working parents.'" Id. The Arbitrator further noted that: (1) ACAP was selected through the Agency's own solicitation procedure; (2) the Agency negotiated a license with ACAP and "completed a revised license with ACAP" effective in March 1992; and (3) although children of employees from other agencies attend the Center, only the Agency provides any support to the Center. Id.

The Arbitrator next examined the meaning of "day care facilities" and "exclusive control" in Article 8, Section 4C(10) of the parties' agreement. The Arbitrator found that the parties' intent as to the meaning of these terms was not indicated by their bargaining history or by the record. The Arbitrator relied, therefore, on the "plain and common meaning" of the terms and found that the term "facilities" represents "the space, building, equipment, and related materials." Id. at 9 and 10. The Arbitrator then determined that the term "exclusive control" meant "'sole control of child care facilities[,]' [that is,] the authority to regulate, direct, or guide the use of those facilities." Id. at 10.

The Arbitrator stated that the issue of "[w]hether [the Agency] has sole control over the Center['s] facilities was a question of fact." Id. In examining the facts, the Arbitrator found that: (1) the Agency received no support from any other agency and provided the facilities for the Center; (2) the nature of the provisions in the license was evidence of the Agency's control over the facilities; (3) as the facilities were provided rent-free, the licensee had to meet "statutory" or "regulat[ory]" requirements concerning "security, safety, use of facilities by children of [F]ederal employees . . . , and priority for children of [F]ederal employees[;]" and (4) the Agency had the right to terminate the license. Id. Under these circumstances, the Arbitrator determined that the Agency had exclusive control of the Center's facilities within the meaning of Article 8, Section 4C(10). The Arbitrator concluded, therefore, that the Agency's "refusal to negotiate regarding the 'special conditions' in the license of ACAP was a violation of the [a]greement." Id. at 11.

In so concluding, the Arbitrator stated that the alleged violation of Article 4, Section 1 "became irrelevant," because the issue presented by the grievance "resolved into [one] over the interpretation and application of Article 8, Section 4C(10)," rather than an "issue separate and apart on whether the 'Special Conditions' in the license per se concerned a mandatory subject of bargaining." Id. The Arbitrator also noted the Agency's argument that the special conditions section of the license did not vitally affect the conditions of employment of unit employees and, thus, did not constitute a mandatory subject of bargaining. The Arbitrator stated that the Agency's argument "was persuasive[,]" but determined that in the circumstances of this case the argument was not pertinent to the resolution of the grievance because he had found that the issue, as mentioned above, "resolved into" one concerning the application of Article 8, Section 4C(10). Id.

Accordingly, as his award, the Arbitrator determined that the Agency violated Article 8, Section 4C(10) of the parties' collective bargaining agreement by denying the Union's request for negotiations concerning the special conditions section of the license and, therefore, directed the Agency to negotiate with the Union on the special conditions in the ACAP license pursuant to this section. The Arbitrator further determined that the Agency did not violate Article 4, Section 1 of the agreement.

III. Agency's Exceptions

The Agency asserts that the award fails to draw its essence from the agreement. According to the Agency, the Arbitrator determined that the Agency had exclusive control over the day care facilities "by construing 'facilities' to mean strictly 'the building, equipment and space' and not the child-care service provided[.]" Exceptions at 2 (quoting Award at 9). The Agency argues that the Arbitrator "erred in reasoning that this construction rendered the Union's proposals negotiable." Id. Specifically, the Agency contends that the Arbitrator's "implicit conclusion that the second occurrence of the word 'facilities' in Article 8, Section 4C(10) means only 'building, space and equipment,'" but that the first occurrence of the word in that section "encompasses enrollment policies, criminal history checks for provider employees, the role of the Advisory Committee, and fee discounts[,]" fails to draw its essence from the parties' agreement. Id. The Agency asserts, therefore, that the award is "overbroad to the extent that it orders bargaining over matters other than 'building, space and equipment.'" Id. The Agency also argues that the Arbitrator's determination concerning Article 8, Section 4C(10) is unsupported by the record.

The Agency further contends that the award is contrary to law. In this connection, the Agency states that the Arbitrator found that the special conditions section of the license between the Agency and ACAP was not a mandatory subject of bargaining because the Union had failed to demonstrate that the license with ACAP "vitally affected the conditions of employment" of unit members. Id. at 1. In light of this finding, the Agency asserts that the Arbitrator should not have "concluded that [the Agency] was obligated to negotiate [over] the Union's proposals under Article 8, Section 4C(10) of the [parties'] agreement[.]" Id. at 2. The Agency contends, therefore, that the Arbitrator's directive that the Agency negotiate with the Union on the special conditions in the license "is contrary to law to the extent that it directs bargaining on matters found not to vitally affect the conditions of employment of bargaining unit members[.]" Id.

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 Draws Its Essence from the Parties'

Agreement

To demonstrate that an award fails to draw its essence from the parties' collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (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; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees Local 2608, 38 FLRA 28, 30 (1990) (SSA).

The Agency contends that the Arbitrator's award directing the Agency to negotiate on the special conditions in the license does not draw its essence from the parties' agreement because the license does not involve matters that "fall[] under the [A]rbitrator's definition of [day care] 'facilities[.]'" Exceptions at 2. We reject the Agency's contention.

After having examined the positions of the parties and provisions of the parties' agreement, the Arbitrator found that the issue before him was not whether the special conditions section of the license was a condition of employment of unit employees, but rather whether the Agency was required to negotiate over "day care facilities" issues under Article 8, Section 4C(10) of the parties' agreement. Based on the record in this case, the Arbitrator determined the meaning of "day care facilities" and "exclusive control" under Article 8, Section 4C(10) and found that the Agency had agreed to negotiate on "day care facilities" issues under this section. The Arbitrator further found that the special conditions of the license concerned issues relating to day care facilities that were under the Agency's control. The Arbitrator found that under these circumstances the Agency violated Article 8, Section 4C(10) of the parties' agreement and, therefore, directed the Agency to negotiate with the "Union on the 'special conditions' in the . . . license pursuant to [this section]." Award at 12. In so directing, the Arbitrator did not order the Agency to negotiate specifically on the Union's proposals, as the Agency states, but rather ordered the Agency to negotiate with the Union on matters covered pursuant to Article 8, Section 4C(10) of the parties' agreement. The Arbitrator's award, therefore, was based on his interpretation of the relevant provisions of the agreement.

The Agency has failed to demonstrate that the Arbitrator's interpretation cannot in any rational way be drawn from the agreement, is unfounded in reason and fact and unconnected to the wording of the agreement, or does not represent a plausible interpretation of the agreement. The Arbitrator's award directing the Agency to negotiate on special conditions in the license constituted his interpretation of what "day care facilities" and "exclusive control" encompass under Article 8, Section 4C(10) of the parties' agreement. Thus, we find that the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. That contention provides no basis for finding the award deficient under section 7122(a)(2) of the Statute. SSA, 38 FLRA at 31.

In connection with this exception, the Agency contends that the Arbitrator's determination concerning Article 8, Section 4C(10) is unsupported by the record. The Agency has not established that the award is deficient because it is not supported by the record evidence. Rather, the Agency's contention constitutes mere disagreement with the Arbitrator's findings and conclusions based on the evidence presented at arbitration. Disagreement with an arbitrator's evaluation of evidence and conclusions based thereon provides no basis for finding an award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 383 (1990). Accordingly, this contention provides no basis for finding the award deficient.

B. The Award Is Not Contrary to Law

The Agency asserts that the Arbitrator should not have concluded that the Agency was obligated to negotiate on the Union's proposals under Article 8, Section 4C(10) of the parties' agreement because the special conditions section of the license was not a condition of employment under Cherry Point. In support of its assertion, the Agency relies on the Arbitrator's finding that the Union had failed to demonstrate that the special conditions section of the license vitally affected the conditions of employment of unit employees. We find that the Agency's contention provides no basis for finding the award deficient.

In our view, the Arbitrator's award directing the Agency to negotiate with the Union over the special conditions section of the license was not based on his finding regarding whether the terms of the license vitally affected unit employees.(3) As previously mentioned, the Arbitrator found that the issue before him was not whether the special conditions of the license constituted a condition of employment of unit employees, but rather whether the Agency was required to negotiate over issues regarding day care facilities under Article 8, Section 4C(10) of the agreement.

In interpreting and applying Article 8, Section 4C(10), the Arbitrator found that the special conditions section of the license concerned matters relating to day care facilities that were under the Agency's control. Because the award is based on the Arbitrator's interpretation and application of the terms "day care facilities" and "exclusive control" under Article 8, Section 4C(10) of the parties' agreement, we find that the award is not contrary to law. Rather, the Agency's contention constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and his reasoning and conclusions. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union Chapter 137, 41 FLRA 394, 398 (1991). We note that the Authority has found that matters pertaining to day care facilities concern conditions of employment of unit employees. See, for example, American Federation of Government Employees, Local 1501 and U.S. Department of the Air Force, Airlift Military Command, McChord Air Force Base, Washington, 38 FLRA 1515, 1519 (1991); American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA 423, 424 (1983), aff'd, 706 F.2d 1229 (D.C. Cir. 1983); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 606 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 8, Section 4C(10) of the parties' agreement provides:

ARTICLE 8 - NEGOTIATIONS

Section 4. Regional Negotiations

C. The Parties agree that the Regional Parties may negotiate on the following issues at the election of either Party:

. . . .

10. Day care facilities to the extent such facilities are under the exclusive control of [the Agency].

Article 4.1 of the agreement provides:

ARTICLE 4 - UNION RIGHTS

Section 1. Obligations

In all matters relating to personnel policies, practices, and other conditions of employment, the Employer will have due regard for the obligations imposed by the [Statute] and this Agreement. This includes the obligation to notify the Union of any changes in conditions of employment and offer the Union the opportunity to negotiate concerning the procedures which Management will observe in exercising its authority in accordance with the [Statute].

Award at 2-3.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The renegotiated special conditions section of the license addressed, among other things: (1) the authority under which the license for the Center was granted; (2) priority for child care services at the Center to employees of contributing agencies; (3) criminal history background checks of the child care provider and its employees; (4) requirements for ACAP's occupancy of the Center, including hours of operation, compliance with building regulations and security arrangements, establishment of an advisory committee, and training of ACAP's employees; (5) Agency-furnished services and equipment; (6) terms for renewing the license; (7) the status of ACAP, including the extent of its responsibility with respect to the child care program; (8) insurance; (9) the Agency's and ACAP's rights to terminate the license; and (10) the Agency's appointment of an observer to act as a liaison between ACAP and the Agency. The Arbitrator did not identify the changes in the special conditions that resulted from the renegotiation.

2. Relevant provisions of the parties' collective bargaining agreement are set forth in an Appendix to this decision.

3. Although the Arbitrator's finding with respect to the "vitally affects" test was not the basis for his award, we note that the Arbitrator improperly applied the test. In applying the test, the Arbitrator stated that the Union "failed to demonstrate that the interests of non-bargaining unit members who used the Center vitally affected the conditions of employment of . . . unit employees." Award at 11 (emphasis in original). Under Cherry Point, the test is not whether the interests of "non-bargaining unit members" who use the Center vitally affect the conditions of employment of unit employees. Rather, the test is whether the matter sought to be bargained over by the Union "purports to regulate the working conditions of [non-employees or employees not included in any bargaining unit] and, if so, whether the matter vitally affects the conditions of employment of unit employees." American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 949 (