48:1348(140)AR - - GSA, Region 9 and AFGE, Council 236 - - 1994 FLRAdec AR - - v48 p1348



[ v48 p1348 ]
48:1348(140)AR
The decision of the Authority follows:


48 FLRA No. 140

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

GENERAL SERVICES ADMINISTRATION

REGION 9

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2481

_____

DECISION

January 5, 1994

_____

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 Charles A. Askin 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 found that the Agency was not obligated to notify the Union about settlement negotiations between the Agency and an employee and her attorney resulting in the reinstatement of an employee and that the settlement agreement did not violate the parties' collective bargaining agreement. The Arbitrator also found that the Agency was required to notify the Union of a meeting with unit employees concerning the return to work of the reinstated employee, but that the Union's claims that the meeting violated the Rehabilitation Act and the Privacy Act were not properly before him.

We find that the Union fails to establish that the award is deficient to the extent that the Arbitrator determined that the settlement agreement did not violate the collective bargaining agreement. However, we find that the Arbitrator's determination that the Union was not entitled to notification of the settlement discussions conflicts with the Statute. In addition, we cannot determine whether the Arbitrator would have reached the same result regarding the Union's Rehabilitation Act and Privacy Act claims had he not misapprehended a fact that was not in dispute. Accordingly, we will remand these matters for further proceedings.

II. Background and Arbitrator's Award

In September 1992, the Agency removed an employee for being under the influence of alcohol while on duty. The employee retained a private attorney and filed an appeal of the removal with the Merit Systems Protection Board (MSPB), instead of filing a grievance. In October 1992, the Agency and the employee executed a last chance agreement reinstating the employee in settlement of her MSPB appeal. The last chance agreement provided, among other things, that she would be subject to leave restrictions for a period of 2 years after her reinstatement. In late October or early November 1992, two agency supervisors held meetings with unit employees and discussed the return to work of the reinstated employee.

The Union filed a grievance and claimed that it had not been given the opportunity to attend any of the discussions that resulted in the execution of the last chance settlement agreement, and that the leave restriction portion of the settlement agreement violated the parties' collective bargaining agreement. The Union also claimed that it was not given the opportunity to be represented at the meetings conducted by the two agency supervisors concerning the return to work of the reinstated employee and that those meetings violated the Rehabilitation Act and the Privacy Act. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Union argued that it had a right to notification of and an opportunity for representation at the discussions and negotiations, which resulted in the execution of the last chance agreement in settlement of the reinstated employee's MSPB appeal. The Union further argued that the settlement agreement violated the collective bargaining agreement because under the collective bargaining agreement leave restrictions may be used only in cases of abuse of sick leave and the restrictions must be removed if there is no sick leave abuse for a period of 3 months. In addition, the Union asserted that the settlement agreement was a rule or regulation and that section 7116(a)(7) of the Statute prevented its enforcement because the settlement conflicted with the collective bargaining agreement. The Union also claimed that the meetings with employees were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute and that the meetings violated the Privacy Act and the Rehabilitation Act because management described the reinstated employee as an alcoholic when, under 29 C.F.R. § 1614.203(e)(4), information pertaining to a handicapping condition must be kept confidential.

Before the Arbitrator, the Agency argued that the Union had no right to representation at the settlement discussions because the employee had elected to be represented by a private attorney, rather than by the Union. The Agency further argued that the claim that the settlement violated the collective bargaining agreement was not arbitrable, but that, in any event, nothing in the collective bargaining agreement prevented the reinstated employee from voluntarily waiving any limitation in the collective bargaining agreement on leave restrictions as part of her last chance settlement agreement. The Agency also argued that the meetings with employees were not formal discussions. In addition, the Agency asserted that the Rehabilitation Act and Privacy Act claims should be barred because the Union had failed to properly specify the basis for these claims as required by the collective bargaining agreement.

The Arbitrator first determined that the Agency had no obligation to notify the Union about the settlement negotiations with the removed employee. The Arbitrator explained that, in his view, the settlement negotiations did not constitute a change in conditions of employment. He ruled that under the Statute and the parties' agreement, the Union had no right to participate in MSPB proceedings when the employee had not chosen to be represented by the Union.

The Arbitrator further determined that the Union's claim that the settlement agreement violated the collective bargaining agreement was arbitrable, but he rejected the claim as without merit. He noted that Article 27 of the collective bargaining agreement "does not expressly state that leave restrictions can be imposed only in the circumstances of sick leave abuse." Award at 12 (emphasis by the Arbitrator). He further noted that "to the extent that a leave restriction may be imposed for a valid reason other than sick leave abuse, an action which is not prohibited by the Agreement, there is no contractual limitation upon the length of time that type of leave restriction could be imposed." Id. However, apart from whether the restrictions were inconsistent with the collective bargaining agreement, the Arbitrator ruled that an employee was not precluded from voluntarily waiving such rights or benefits in order to obtain something else of value. He found that to the extent the employee voluntarily waived a right she had under the collective bargaining agreement so that she could retain her job, she had every right to agree to such a waiver. Accordingly, the Arbitrator held that the settlement agreement did not constitute a violation of the collective bargaining agreement.

The Arbitrator ruled that the Union's Rehabilitation Act and Privacy Act claims were not properly before him. In finding that the claims were barred, the Arbitrator relied on Article 34, Section 6 of the parties' collective bargaining agreement, which provides, in pertinent part, as follows:

All [institutional] grievances MUST set forth the following . . . when filed . . . .

. . . .

B. If appropriate, the provision(s) of law, regulation, or this Agreement which allegedly have been misinterpreted, misapplied, or violated.

. . . .

Any information (e.g. the provision(s) of law, regulations, or this Agreement) not contained in the final step of the grievance procedure must be presented to the other party prior to the arbitration hearing.

Id. at 3 (quoting the agreement). The Arbitrator noted that "[i]n its brief, the Union cited CFR 1614.203 in support of its legal position concerning this issue, which appears to be the first specific citation of the regulation upon which it relied." Id. at 13. The Arbitrator further noted that the Agency objected to the Union withholding "the legal authority upon which it is proceeding until its post-hearing written brief." Id. at 14. The Arbitrator ruled that the Union's general reference to "EEOC regulations; Privacy Act regulations . . . and the Statute" when it filed its grievance did not comply with the procedural requirements of Article 34, Section 6 and that as a result, the claims were not properly before him. Id.

With respect to the meetings with unit employees, the Arbitrator determined that, under the Statute and the collective bargaining agreement, the Union had the right to notification of and an opportunity for representation at the meetings and that the Agency's failure to grant those rights violated the Statute and the parties' agreement. The Arbitrator ordered the Agency to post a notice advising department employees that it will cease and desist from engaging in such conduct.

III. First Exception

A. Positions of the Parties

The Union contends that the award is deficient because the settlement agreement violated the parties' collective bargaining agreement. The Union argues that, contrary to the determination of the Arbitrator, the collective bargaining agreement limits leave restrictions to cases of abuse of sick leave and requires removal of a restriction if there is no sick leave abuse for 3 months. The Union also contends that the Agency violated section 7116(a)(7) of the Statute. The Union argues that the settlement agreement constituted a rule, within the meaning of section 7116(a)(7), and that the Agency's enforcement of the settlement in conflict with the collective bargaining agreement constituted an unfair labor practice.

The Agency contends that the Arbitrator expressly found that the settlement did not conflict with the collective bargaining agreement and that the Union's restatement of its arguments to the contrary in its exception constitutes nothing more than disagreement with the Arbitrator's determination. The Agency also contends that there is no support for the Union's contention that the settlement agreement constitutes a rule within the meaning of section 7116(a)(7) of the Statute.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient on these grounds.

We view the Union's contention that, contrary to the determination of the Arbitrator, the settlement agreement violates the collective bargaining agreement as a contention that the award fails to draw its essence from the collective bargaining agreement. In order for the award to be found deficient because it does not draw its essence from the collective bargaining agreement, the Union must establish one of the following: (1) the award cannot in any rational way be derived from the collective bargaining agreement; (2) the award is so unfounded in reason or in fact, so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the Arbitrator; (3) the award evidences a manifest disregard of the collective bargaining agreement; or (4) the award does not represent a plausible interpretation of the collective bargaining agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 100-01 (1993). We conclude that the Union fails to establish that the award does not draw its essence from the parties' collective bargaining agreement.

In rejecting the same arguments the Union submits in support of its exception, the Arbitrator found that Article 27 of the collective bargaining agreement does not prohibit imposing leave restrictions for a valid reason other than sick leave abuse. But the primary basis for the Arbitrator's decision, which the Union does not address in its exception, was that any limitation in the collective bargaining agreement on restricting the leave of unit employees is an employee benefit, which the employee can voluntarily waive. Thus, he interpreted and applied the collective bargaining agreement as permitting the reinstated employee to voluntarily waive any benefit involving leave restriction limitations contained in the collective bargaining agreement in order to settle her appeal of her removal. On this basis, the Arbitrator held that the settlement agreement did not constitute a violation of the collective bargaining agreement, even if the collective bargaining agreement limited leave restrictions to sick leave abuse, as asserted by the Union.

In our view, the Union fails to establish that the Arbitrator's interpretation and application of the collective bargaining agreement disregards the collective bargaining agreement or is implausible, irrational, or unfounded. In addition, we find nothing in the Statute that would preclude the Arbitrator from interpreting and applying the collective bargaining agreement as he did in this case. See Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991) (indicating that it is permissible for an employee to waive appeal rights under the applicable collective bargaining agreement, including the right to file a grievance, as part of a last chance agreement). Moreover, the Arbitrator's approach to waiver is consistent with the approach of the MSPB and the U.S. Court of Appeals for the Federal Circuit to last chance agreements in settlement of MSPB appeals. See, for example, McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988) (court affirmed a finding of the MSPB that the employee could waive his right to an MSPB appeal as part of a last chance agreement settling his appeal of his removal). We can perceive of no reason for a different result in this case.

Furthermore, because no basis is provided for finding deficient the Arbitrator's determination that the settlement did not conflict with the collective bargaining agreement, we reject the Union's contention that enforcement of the settlement violates section 7116(a)(7) of the Statute. Accordingly, we deny the Union's exception.

IV. Second Exception

A. Positions of the Parties

The Union contends that it had a right to be notified of and to be represented at settlement negotiations and that the Arbitrator's determination to the contrary conflicts with the Statute.

The Agency contends that the Arbitrator correctly concluded that the Union had no representational rights with respect to the negotiations and discussions because the employee had elected to appeal her removal to the MSPB and chose to be represented by a private attorney.

B. Analysis and Conclusions

We find that the award conflicts with the Statute to the extent that the Arbitrator ruled that the Union was not entitled under the Statute to notification of and an opportunity for representation at settlement negotiations and discussions. Accordingly, we set aside that determination.

Section 7114(a)(2)(A) of the Statute provides:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]

Section 7103(a)(9) of the Statute pertinently defines "grievance" as "any complaint . . . by any employee concerning any matter relating to the employment of the employee[.]"

In order for a union to have a right to representation under the Statute, all the elements of section 7114(a)(2)(A) must exist. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. For example, American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 329-30 (1990) aff'd, 949 F.2d 475 (D.C. Cir 1991) (Wright-Patterson AFB). In determining whether the elements of section 7114(a)(2)(A) exist in a particular case, we are guided by the intent and purpose of the section to provide the union with an opportunity to safeguard its interests and the interests of unit employees viewed in the context of the union's full range of responsibilities under the Statute. Id. at 330. In deciding whether the Union had a right under the Statute to notification of and an opportunity for representation at the settlement discussions and negotiations, the Arbitrator did not address these elements of section 7114(a)(2)(A). Examining the totality of the circumstances in this case, we conclude that all the elements of the Statute were present with respect to the discussions and negotiations.

It is clear that the negotiations and discussions were between one or more agency representatives and the unit employee and her representative. It is also clear that the discussions concerned a grievance within the meaning of section 7114(a)(2)(A), notwithstanding that the discussions related to the employee's appeal to the MSPB. The Authority does not limit the term "grievance" in section 7114(a)(2)(A) to a complaint under the negotiated grievance procedure. We apply the term broadly to encompass complaints under statutory appeal procedures, such as appeals to the MSPB. See, for example, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA 170, 183-84 (1993) (and cases cited in the decision).

In addition, we find that, by their very nature, negotiations between an agency representative or representatives and the employee and her private attorney, resulting in a last chance agreement reinstating the employee in settlement of her appeal to the MSPB of her removal constitute formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. In determining whether a discussion is formal within the meaning of section 7114(a)(2)(A), we have advised that the totality of the circumstances presented must be examined, but that a number of factors are relevant: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. For example, Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1398-99 (1991), petition for review filed, No. 91-70640 (9th Cir. Oct. 23, 1991). Although the Arbitrator did not address the element of formality, we can perceive of no informal aspects of the negotiations and discussions in this case that could possibly predominate over their obviously formal aspects: An agency representative or representatives authorized to settle a removal case on appeal to the MSPB on the behalf of the Agency discussed with an employee and her private attorney the terms of a last chance agreement, which would settle the removal case and result in the reinstatement of the employee. Applying the purposes of section 7114(a)(2)(A), we conclude that such negotiations and discussions by their very nature could not have the predominant aspects of informality that have characterized the Authority's decisions as to what discussions are informal. For example, Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335-36 (1992) (a spontaneous and unplanned meeting of short duration on the shop floor); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 29 FLRA 1205, 1216 (1987) (a short, spontaneous meeting with the first-level supervisor at the employees' work place with no formal agenda); Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021, 1033-34 (1984) (a meeting, at which the attendance of employee complainants was voluntary, conducted by a "facilitator," who did not act as a representative of management, to attempt to settle EEO complaints).

Accordingly, we find, contrary to the Arbitrator, that the Union was entitled to notification of and an opportunity for representation at the settlement negotiations and discussions. However, we will not order a remedy. In choosing to file a grievance, the Union chose the judgment and discretion of the Arbitrator, and we will not disturb that choice. Cf. American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 715 (1992) (arbitrator properly retained jurisdiction to decide statutory remedial issues because the union had exercised its statutory option as to the procedures under which it could raise such matters when it filed the grievance). Therefore, we will remand this portion of the award to the parties for resubmission to the Arbitrator to fashion a remedy.

V. Third Exception

A. Positions of the Parties

The Union contends that the award is based on a nonfact. The Union maintains that the Arbitrator refused to consider its Rehabilitation Act and Privacy Act claims because he found that the specific citation for the claimed violations was not provided until its post-hearing brief. The Union asserts that, to the contrary, the specific citation was provided to the Agency before the arbitration hearing in a letter dated March 2, 1993. Thus, the Union argues that the central fact underlying the Arbitrator's refusal to consider its claims was clearly erroneous, but for which the Arbitrator would have reached a different result.

The Agency agrees with the Union that the Union's reference to 29 C.F.R. § 1614.203 was first provided in its March letter and not in its post-hearing brief. However, the Agency claims that the Arbitrator's result would not have been any different, but for the Arbitrator's misapprehension of when the citation was first provided, because, in the Agency's view, the Union was required under the specific language of Article 34, Section 6 to provide the citation when it filed its institutional grievance. Thus, the Agency asserts that whether the information was 4 months late or 6 months late is immaterial for purposes of barring the claims. The Agency further argues that the mere citation to 29 C.F.R. § 1614.203 was insufficient to satisfy the specificity requirements of Article 34, Section 6. The Agency maintains that it was not until the Union's post-hearing brief that the Union cited subsection (e)(4) and explained the basis for the claims. The Agency also asserts that the Union fails to establish that the result would have been any different because by its own terms section 1614.203(e)(4) addresses only the confidentiality of information obtained through pre-employment inquiries and the information at issue in this case did not relate to pre-employment inquiries.

B. Analysis and Conclusions

We will find an arbitration award deficient because it is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Army, Army Natick Research Development and Engineering Center, Natick, Massachusetts and National Association of Government Employees, Local R1-34, 44 FLRA 1251, 1254 (1992) (Natick Center). In Natick Center, the arbitrator misapprehended the undisputed meaning of the term "offense" for purposes of the agency's table of penalties. However, we could not ascertain whether the award was deficient because it was not clear whether the arbitrator would have reached a different result if he had not misapprehended that the sustained charge was the grievant's second offense for disciplinary purposes. Accordingly, we remanded the award to the parties to have them obtain a clarification and interpretation of the award from the arbitrator. 44 FLRA at 1254-55.

In this case, we conclude that the Arbitrator misapprehended a fact that was not in dispute between the parties. The Agency concedes that the Union's first reference to 29 C.F.R. § 1614.203 was before the arbitration hearing in its March 2, 1993, letter, not in its post-hearing brief, as found by the Arbitrator. However, we are unable to ascertain whether the award is deficient because it is not clear whether the Arbitrator would have found the Union's claims properly before him if he had understood that the citation was provided before the arbitration hearing. Although the Agency argues that the Arbitrator would still have found that the claims were barred because Article 34, Section 6 requires that the citation must have been provided when the Union filed its institutional grievance, we note that Section 6, as quoted by the Arbitrator, also provides that "[a]ny information (e.g. the provision(s) of law, regulations, or this Agreement) not contained in the final step of the grievance procedure must be presented to the other party prior to the arbitration hearing." Award at 3. Without the Arbitrator's interpretation and application of this language, we are not persuaded that the result necessarily would have been the same. Moreover, as the Arbitrator did not consider what specificity is required under Section 6 to satisfy the requirement to specify the provisions of law or regulation that have allegedly been violated, we are not persuaded, as asserted by the Agency, that the Arbitrator necessarily would have reached the same result because the Union did not specify subsection (e)(4) of 29 C.F.R. § 1614.203 until its post-hearing brief.

We also find misplaced the Agency's argument that, in any event, the Arbitrator would have denied the claims for lack of merit. We emphasize in this regard that the Arbitrator found that the Union's claims were procedurally deficient and that he could not reach their merits. If we are to find that the award is not based on a nonfact, we must find that the Arbitrator would have reached the same result despite his misapprehension. The Agency's argument based on the merits of the claims is irrelevant to such a finding.

Accordingly, in order to provide a record on which to determine whether the award is deficient in this respect, we will remand the issue of the Union's Rehabilitation Act and Privacy Act claims to the parties to have them obtain a clarification of the award from the Arbitrator. See Natick Center, 44 FLRA at 1254.

VI. Decision

We will remand portions of the award to the parties for resubmission to the Arbitrator for further proceedings. Consistent with this decision, the Arbitrator should determine an appropriate remedy for the Agency's failure to provide the Union with notification of and an opportunity for representation at the disputed settlement negotiations and discussions. The Arbitrator should also determine whether the Union's Rehabilitation Act and Privacy Act claims comply with the procedural requirements of Article 34, Section 6 of the parties' collective bargaining agreement. Either party may timely file exceptions with the Authority to the award of the Arbitrator on remand.




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