54:0600(63)AR - - SSA, Baltimore MD and AFGE [ SSA = Social Security Administration ] - - 1998 FLRAdec AR - - v54 p600
[ v54 p600 ]
The decision of the Authority follows:
54 FLRA No. 63
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 27, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert E. Nagle 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained in part, and denied in part, a grievance challenging the Agency's denial of official time to union officials for the purpose of attending two separate legislative conferences. As relevant here, the Arbitrator ordered the Agency to adjust the leave records and to provide backpay to any of those employees who were charged leave without pay.
For the following reasons, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievants are union representatives at several of the Agency's regional offices. In both 1996 and 1997, the Union sponsored national political and legislative conferences. Prior to the conferences, the grievants requested, and the Agency denied, official time and "no-cost travel orders."(1) Award at 3. In denying the requests, the Agency stated that the information supplied by the Union did not support the authorization of official time and no-cost travel orders. According to the Arbitrator, the Agency denied the 1996 request because the conference agenda outlined "more detail regarding the breakfasts, receptions[,] and parties that were to be held than for the workshops." Award at 5.
The Union filed several grievances. Because the parties were unable to resolve the grievances, the grievances were consolidated and the matter proceeded to arbitration. In the absence of a stipulation by the parties, the Arbitrator framed the issue as follows:
Did the Social Security Administration violate the National Agreement by denying official time and no-cost travel orders to Union officials to attend the 1996 AFGE Political and Legislative Conference and the 1997 AFGE Legislative Conference? If so, what shall be the remedy?
Id. at 2.
Relying on Authority precedent, the Arbitrator found that "lobbying activities may be representational in nature and thus qualify for official time." Id. at 20 (citing U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920 (1997) (Corps of Engineers) (Member Armendariz dissenting in part)). The Arbitrator also found that the Agency did not contend that official time for "lobbying is not mentioned in the [parties'] [n]ational [a]greement," but rather contended only that "official time . . . is contingent upon a showing that the lobbying is for appropriate representational purposes." Id. In this regard, the Arbitrator noted that "official time could be available for convention activities . . . but only to the extent that they involve labor relations or representational matters, rather than internal union matters." Id. See also id. at 21.
With respect to the 1996 conference, the Arbitrator determined that the "basic purpose . . . was to have . . . [union representatives] lobby members of Congress with respect to legislative issues that directly affect the working conditions of the Federal employees." Id. at 22. The Arbitrator decided that the Union's lobbying and related training constituted "representative functions which should qualify for official time." Id. However, the Arbitrator stated that the Political Action Committee(PAC)-related activities, as well as the time spent endorsing the President and Vice President for reelection, did not qualify for official time. The Arbitrator concluded that four working days, "plus necessary travel time during normal working hours," less 2 hours for the non-representational activities that occurred during working hours should qualify for official time. Id. at 23.
With respect to the 1997 conference, the Arbitrator also determined that the purpose was to prepare the union representatives to lobby Congress on representational issues. The Arbitrator found that all of the PAC-related activities and all of the Union's internal business was conducted outside of normal working hours. As such, the Arbitrator concluded that the grievants were entitled to 3 days of official time plus necessary travel time.
Based on the foregoing, the Arbitrator awarded the grievants official time to attend the conferences. However, noting that the Union could "have been more helpful in justifying" its requests for official time, the Arbitrator denied the Union's request for additional costs incurred as a result of the Agency's refusal to issue no-cost travel orders. Id. at 25.
III. Positions of the Parties
The Agency challenges the Arbitrator's award on four grounds. First, the Agency claims that the Arbitrator "exceeded his jurisdiction and went beyond what should have been decided, and/or considered, based on [his] framing of the issue." Exceptions at 1-2. According to the Agency, the Arbitrator based his award on an evaluation of information that was not available to management at the time it denied the Union's request for official time. The Agency argues that "the inquiry inappropriately moved from the question of management violating the agreement based upon what it knew at the time of the requests, to a question of what actually took place at these conferences." Id. at 3.
Second, the Agency contends that the Arbitrator's award is based on a nonfact. In this regard, the Agency challenges the Arbitrator's conclusion that the Union adequately justified its request for official time. The Agency maintains that the Arbitrator "in effect admitt[ed]" that the Union did not adequately justify its request for official time at the time the Agency denied the request and, therefore, "[a]ny other basis for" the Arbitrator's conclusion that the Agency "violat[ed] . . . the National Agreement [is] a nonfact." Id. at 5.
Third, the Agency asserts that the award "violates the National Agreement [A]rticle 25, section 6."(2) Id. at 2. In the Agency's view, the Arbitrator "went beyond the contractual requirements" by determining that the grievants were entitled to official time, even though they had not adequately justified their request to the Agency. Id. at 5.
Finally, the Agency states that "it is clear from the evidence that lobbying was being intertwined with partisan political activities" based on the "political overtones of PAC meetings, PAC breakfasts, rallies, reelection speeches, and political action workshops" during the legislative conferences. Id. at 5-6. In this regard, the Agency argues that, by authorizing official time for all but 2 hours of the conferences, the award violates the Hatch Act and 18 U.S.C. § 1913.
The Union asserts that "the Agency's appeal is merely a disagreement with the arbitrator's findings in this case." Opposition at 2. The Union claims that the Agency has "no basis for asserting that [the Arbitrator] was limited by what management knew at the time it originally denied the official time." Id. In this regard, the Union maintains that the Arbitrator "had the authority to decide de novo," based on the evidence presented during arbitration, whether the Agency properly denied the official time request. Id. at 3. Moreover, the Union contends that the Arbitrator's award is consistent with the Authority's decision in Corps of Engineers in which the Authority concluded that certain lobbying activities are permissible under the Hatch Act and 18 U.S.C. § 1913.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed His Authority
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, An Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation is accorded substantial deference. See Corps of Engineers, 52 FLRA at 924.
The record shows that the parties did not stipulate the issue to be resolved, and the Arbitrator framed the issue as whether the Agency violated the parties' agreement by denying official time to the Union representatives for the purpose of attending the legislative conferences. There is no dispute that the grievance concerned the subject of whether the Union representatives were entitled to official time under the parties' collective bargaining agreement. In addition, the award is directly responsive to the issue as framed by the Arbitrator. Therefore, the Agency has failed to demonstrate that the Arbitrator exceeded his authority. See U.S. Department of Health and Human Services, Social Security Administration, Region X, Office of Hearings and Appeals and American Federation of Government Employees, Local 3937, 49 FLRA 691 (1994). Accordingly, we deny this exception.
B. The Award is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). In addition, an arbitrator's conclusion that is based on an interpretation of the parties' collective bargaining agreement does not constitute a fact that can be challenged as a nonfact. See National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995).
The Agency asserts that the Arbitrator's conclusion that the Agency was not justified in denying the Union's request for official time is a nonfact because the Arbitrator based his conclusion on facts other than those known to the Agency at the time the requests for official time were denied. The Arbitrator's conclusion that the Union was entitled to official time resulted from the Arbitrator's interpretation of the parties' agreement. Therefore, it does not constitute a fact that can be challenged as a nonfact. See id.; see also U.S. Department of the Navy, Naval Training Center, Orlando, Florida and International Union of Operating Engineers, Local 673, 53 FLRA 103, 106 (1997); U.S. Department of the Air Force, San Antonio Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 51 FLRA 1624, 1630 (1996). As such, the Agency's assertion provides no basis for finding the award deficient as based on a nonfact. Accordingly, we deny this exception.
C. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
Article 25, Section 6 of the parties' agreement states that "[t]he arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any terms of this agreement." Exceptions, Attachment 2 at 127. The Agency asserts that, in finding that the Union was entitled to official time under the parties' agreement, see Exceptions at 5, the Arbitrator modified the parties' agreement.
The Agency has not shown that the Arbitrator's determination with regard to whether the grievants were entitled to official time under the parties' agreement was irrational, implausible, unfounded, or evidenced a manifest disregard of the agreement. See U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990). In addition, the Agency's argument assumes that the Union did not adequately justify its request for official time under the parties' agreement. To the extent that the Agency's argument is premised on its disagreement with the Arbitrator's factual findings, the argument does not demonstrate that the award is deficient because the Authority defers to arbitral findings of fact. See Federal Aviation Administration, SEATAC Airport, Seattle, Washington, 52 FLRA 701, 709 (1996) (where an agency disagrees with an arbitrator's factual findings, the Authority defers to the arbitrator's findings of fact); see also, Lowry, 48 FLRA at 593-94 (the Authority will accord deference to an arbitrator's factual findings). Accordingly, we deny this exception.
D. The Award is Not Contrary to Law
In circumstances where an agency's exceptions challenge an award's consistency with law, we review the questions of law raised by the agency's exceptions and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).
1. The Award is Not Contrary to the Hatch Act
The Hatch Act prohibits Federal employees' participation in certain political activities. See 5 U.S.C. § 7321 et seq. Relevant legislative history indicates that Congress' underlying rationale in enacting the Hatch Act was to establish a nonpartisan civil service. See S. Rep. No. 57, 103d Cong., 1st Sess. 3 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1803. Consistent with Congress' intent, and as pertinent here, 5 U.S.C. § 7324(a)(1) provides that Federal employees "may not engage in political activity" while on duty. The Hatch Act's implementing regulations define "political activity" as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." 5 C.F.R. § 734.101 (emphasis added).
As noted above, the Hatch Act prohibits only Federal employees' participation in political activities while on duty. In this regard, the Arbitrator made factual findings that the 1996 conference encompassed representational lobbying and training during duty hours, a political endorsement by the Union and reelection speech by the Vice-President during duty hours, and various PAC activities during non-duty hours. See Award at 22-23. With regard to the 1997 conference, the Arbitrator made factual findings that lobbying and training on representational matters took place during duty hours, a "[PAC] function was scheduled outside normal working hours," and "there is no indication of any time being devoted to political endorsements." Id. at 23-24. The Arbitrator awarded official time only for the duty hours that he found constituted lobbying and training on representational matters. See id. at 23-24.
Although the Agency challenges the findings underlying the Arbitrator's award, the Authority accords deference to an arbitrator's factual findings because the parties bargained for the facts to be found by an arbitrator chosen by them. See Lowry, 48 FLRA at 593-94. In view of the Arbitrator's factual findings, to which the Authority defers, the Agency has not established that the activities for which official time was awarded by the Arbitrator were "directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." 5 C.F.R. § 734.101. As such, the Agency has not demonstrated that any of the official time awarded by the Arbitrator encompassed activities falling within the definition of "political activity" set forth in the Hatch Act's implementing regulations. Accordingly, we conclude that the award is not inconsistent with the Hatch Act and, therefore, we deny this exception. See Corps of Engineers, 52 FLRA at 926-27.
2. The Award is Not Contrary to 18 U.S.C. § 1913
In Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983), the Authority rejected an agency argument that 18 U.S.C. § 1913 prohibits Union representatives from conducting lobbying activities on official time. More recently, in Corps of Engineers, 52 FLRA 920, the Authority once again examined whether 18 U.S.C. § 1913 prohibits the use of official time for union officials to lobby Congress. After considering the plain wording of the statute, its legislative history, relevant court decisions, and the administrative opinions of the Department of Justice and the General Accounting Office, the Authority concluded that authorizing official time for union officials to lobby on representational issues does not violate 18 U.S.C. § 1913. Specifically, the Authority determined that section 7131(d) of the Statute constitutes an express authorization to grant official time for representational lobbying and, therefore, section 7131(d) is an exception to the prohibition against lobbying contained in 18 U.S.C. § 1913. In Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301, 307 (1998) (New Hampshire National Guard), the Authority affirmed its holding, regarding the use of official time for representational lobbying under 18 U.S.C. § 1913, in Corps of Engineers.
In this case, the Agency has not provided any new arguments supporting a conclusion that the granti