47:0922(87)AR - - AFGE Local 96 and VA Medical Center, St. Louis, MO - - 1993 FLRAdec AR - - v47 p922
[ v47 p922 ]
The decision of the Authority follows:
47 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
ST. LOUIS, MISSOURI
June 16, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Gerard A. Fowler filed by the Union 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 filed an opposition to the Union's exceptions.
The Arbitrator sustained a grievance alleging that the Union violated the parties' collective bargaining agreement by distributing certain written material throughout Agency facilities. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Union published an article in its newsletter, which was distributed throughout the Agency and posted on Agency bulletin boards, which was critical of a particular Agency supervisor. The article stated, among other things, that, because the supervisor's subordinates "are temporary status and on probation, they have no rights . . . . " Award at 3. The article specifically referred to "a probationary employee who was terminated only recently," as well as another employee who was "on 90-day notice for going over [the supervisor's] head to express dissatisfaction." Id. at 3, 4. (1) The article also discussed an employee who had "been forced to resign." Id. at 3.
When Agency officials became aware of the newsletter, they sought a retraction from the Union. The Union refused to retract the article and the Agency filed a grievance on behalf of the supervisor (the grievant) alleging that, by distributing the article, the Union violated Article 6 of the parties' collective bargaining agreement.(2) When the grievance was not resolved, it was submitted to arbitration, and the Arbitrator framed the issue as follows:
Has [the Union] violated Article 6, Section 7, of the [parties' agreement], and if so, what is the appropriate remedy?
Award at 1.
Before the Arbitrator, the Agency argued that the article was libelous and defamatory, within the meaning of Article 6, Section 7 of the parties' agreement. The Agency presented witnesses who testified that the grievant was a respected and competent supervisor. Agency witnesses also testified that the termination of the probationary employee discussed in the article was justified and that the employee who had allegedly been forced to resign had informed Agency officials that she resigned because of her desire to return to school.
The Union presented witnesses who testified about problems they had experienced with the grievant. Among others, the employee "who [had] been forced to resign" testified that, although she had written a letter stating that she was resigning to return to school, the "real reasons" she resigned were those contained in the newsletter article. Award at 3, 10. In addition, the employee who had allegedly been given a "90-day notice" testified that, although the grievant informed her that she was to receive such notice, she had not received it. Id. at 4. The Union also argued to the Arbitrator that, based on Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974) (Old Dominion), the disputed statements were privileged. The Union asserted that the Agency was required to demonstrate that the Union clearly and unmistakably waived its rights "to make the kind of statements presented in the article . . . ." Award at 12.
The Arbitrator concluded that the Agency's witnesses were more credible than the Union's. The Arbitrator also concluded that the article contained several inaccuracies and that the Union failed to adequately research the information contained in the newsletter. Among other things, the Arbitrator noted that the Union failed to verify whether the "90-day notice" referenced in the newsletter had been issued. Id. at 15. The Arbitrator also noted that the probationary employee discussed in the article had been terminated 5 months prior to publication of the article, and that the newsletter editors had adequate time to investigate the reason for the termination. The Arbitrator found that "there was a great deal of factual basis for the termination" and that such termination "did not appear to be . . . arbitrary . . . ." Id. at 16. Moreover, the Arbitrator found that the employee was actually a "permanent employee subject to a one-year trial period." Id. The Arbitrator concluded that "the article erroneously stated that '. . . these employees are temporary status and on probation[.]'" Id.
Citing Old Dominion, the Arbitrator found that "false statements were made in the Union's newsletter." Id. at 17. The Arbitrator also found that the newsletter editors were "reckless in the fashion in which they validated the information for the article [and] . . . testimony by [Union witnesses] reflected malice toward [the grievant]." Id. The Arbitrator concluded that "the Union newsletter was libelous by ordinary standards." Id. With regard to the Union's argument concerning the effect of a lawsuit which had been initiated, and withdrawn, by the grievant, the Arbitrator stated the following:
The standard of proof and rules of law vary considerable [sic] between civil litigation and arbitration. An arbitrator must base the essence of his/her decision upon the agreement between the parties. In the instant arbitration, the parties deliberately negotiated and included Article 6, Section 7 which precludes the use of [Agency] facilities for the 'distribution of vulgar, libelous or defamatory material directed at Agency officials' . . . . Accordingly, any rights that the Union might have had to distribute such material is severely limited by the explicit language of the contract. In fact, this appears to be the precise type of case which the language was meant to address.
Id. at 17-18. As his award, the Arbitrator sustained the grievance and ordered the Union to "publish a retraction" of the article. Id. at 20.
III. Positions of the Parties
The Union argues that the award violates the Union's rights under section 7102 of the Statute to publicize matters affecting unit employees' conditions of employment.(3) In this regard, the Union argues that the Arbitrator failed to apply the "appropriate standard for libel under Federal law[.]" Exceptions at 12. According to the Union, unless the disputed statements were made with "'actual malice,'" as defined in New York Times Company. v. L.B. Sullivan, 376 U.S. 254 (1964) (New York Times), they are privileged. Exceptions at 5. The Union maintains that, "[b]y nullifying the Union's fundamental statutory right to comment on employment matters, the Arbitrator's award is contrary to public policy." Id. at 14.
The Union also argues that the award is based on nonfacts. In this regard, the Union contends that, contrary to the Arbitrator's findings, the grievant supervised employees who were serving probationary or temporary periods, and that this fact was corroborated by the evidence presented at the arbitration hearing. The Union further contends that the Arbitrator erred in discussing the reasons for the probationary employee's termination because such reasons were not mentioned in the article.
The Agency argues that the Union's exceptions constitute mere disagreement with the findings of the Arbitrator and, as such, provide no basis on which to find the award deficient.
IV. Analysis and Conclusions
A. Award Is Not Contrary to Law or Public Policy
The right to publicize matters affecting unit employees' terms and conditions of employment is encompassed within section 7102 of the Statute. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129, 1135 (1990) (Scott Air Force Base). This right extends to the distribution of material in nonwork areas of an agency's property. Id. at 1135. However, a union does not have a right under the Statute to post material on agency bulletin boards. Id. at 1135-36 (citing Federal Election Commission, 20 FLRA 20, 21 (1985)). Such right may be established by contract, however. See id. at 1136. See also United States Department of Health and Human Services, Social Security Administration v. FLRA, 976 F.2d 229, 231 (4th Cir. 1992) ("In the absence of [a] collective bargaining agreement, statutory protection for the distribution of union materials would normally be limited to distribution of materials in non-work areas during non-duty hours.").
In this case, the award is based, in part, on the Union's posting of the disputed newsletter article on Agency bulletin boards. As the Statute does not provide the Union a right to such use of bulletin boards, the Union's reliance on section 7102 of the Statute in support of its exception that this portion of the award is deficient is misplaced. Put simply, any Union rights to use Agency bulletin boards were established by contract. As such, at least insofar as it relates to use of the Agency's bulletin board, the award, which interprets and enforces the parties' agreement, cannot conflict with section 7102.
The grievance also is based, in part, on the Union's distribution of the disputed newsletter in nonwork areas of the Agency's property. As noted previously, section 7102 of the Statute encompasses such distribution. Nevertheless, for the following reasons, we conclude that the award, in this respect, does not conflict with section 7102.
The Arbitrator concluded that the parties "deliberately negotiated" a contract provision precluding the use of Agency facilities for the "'distribution of vulgar, libelous or defamatory material directed at Agency officials . . . . '" Award at 17. The Union does not dispute this conclusion. That is, the Union does not contend that the contract provision does not pertain to the distribution of the newsletter or, for any other reason, does not apply in this case. Accordingly, the issue before us, as it relates to section 7102, is whether the contract provision, as interpreted and applied by the Arbitrator, is enforceable in arbitration.
Other contract provisions addressing and limiting union rights to distribute materials have been found enforceable in arbitration. For example, in Department of Health and Human Services, Social Security Administration, Jersey City, New Jersey and American Federation of Government Employees, AFL-CIO, Local 2369, 27 FLRA 104 (1987), the Authority denied a union exception that an arbitrator's award, which found that the union violated the parties' agreement by distributing a bulletin maligning an employee and ordered the union to publish a retraction, violated law and public policy. Similarly, in Social Security Administration, New York Regional Office and American Federation of Government Employees, Local 3369, AFL-CIO, 27 FLRA 28 (1987), the Authority denied union exceptions to an award finding that the union violated the parties' agreement by distributing certain material. The Authority noted that the union had "agreed to a limitation on its rights to publish and distribute materials in exchange for access to agency bulletin boards and facilities." Id. at 31.
The provision in this case prevents the Union from using Agency facilities for the distribution of vulgar, libelous, or defamatory material. The provision does not prevent the Union from posting and distributing any other type of material or from communicating with unit employees in ways which do not involve Agency facilities. Moreover, the provision does not address individual employee rights under section 7102. See NLRB v. Magnavox Company of Tennessee, 415 U.S. 322, 325 (1974) ("The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative . . . . So long as the distribution is by employees to employees and so long as the . . . solicitation is on nonworking time, banning of that solicitation might seriously dilute [protected] rights."). As such, we find no basis on which to conclude that the contract provision is contrary to the Statute or is otherwise unenforceable. See Scott Air Force Base, 34 FLRA at 1136. Accordingly, we will deny the Union's exception that the award violates section 7102 of the Statute.(4)
The Union's exception that the award is contrary to public policy is based on its assertion that the award "nullif[ies] the Union's . . . statutory right to comment on employment matters[.]" Exceptions at 14. Accordingly, for the reasons discussed above in connection with the Union's claim that the award conflicts with its rights under section 7102, we also will deny this exception.(5)
Finally, the Union has not demonstrated that the award is deficient because the Arbitrator failed to apply the "appropriate standard for libel under Federal law[.]" Exceptions at 12. In this connection, the Agency did not argue, and the Arbitrator did not find, that the Union committed libel under Federal law. Instead, as noted previously, the Arbitrator concluded only that, by distributing the newsletter, the Union violated the parties' collective bargaining agreement. That is, the Arbitrator concluded, based on his interpretation and application of the agreement, including judicial decisions, that the newsletter was "libelous" within the meaning of the agreement. Indeed, the Arbitrator specifically stated that, with respect to this issue, "[t]he standard of proof and rules of law vary considerabl[y] between civil litigation and arbitration." Award at 17. In these circumstances, we have no basis on which to conclude that the award is deficient as in conflict with law. However, having concluded that the contract provision is enforceable and governs disposition of this case, we will address the Union's argument as a contention that the award fails to draw its essence from the parties' agreement.
B. Award Is Not Based on Nonfacts
To establish that an award is based on nonfacts, the party making the allegation must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California and National Federation of Federal Employees, Local 2096, 46 FLRA 1625, 1628 (1993) (Naval Facilities Engineering Command).
The Arbitrator found that the employee identified in the article as a probationary employee was, instead, "a permanent employee subject to a -year trial period." Award at 16. Even if the Arbitrator's finding with respect to the employee's probationary status was erroneous, the Union has not established that the finding was central to the award. Thus, the Union has failed to establish that the Arbitrator's finding regarding the disputed employee was the central fact underlying the award. In our view, the Union's exception constitutes disagreement with the Arbitrator's findings and, as such, is an attempt to relitigate the merits of the grievance. Such disagreement provides no basis on which to find the award deficient. See Naval Facilities Engineering Command, 46 FLRA at 1629. Accordingly, we will deny this exception.
C. Award Does Not Fail to Draw Its Essence From the Agreement