American Federation of Government Employees, Local 3911 (Union) and United States Environmental Protection Agency (Agency)

[ v58 p101 ]

58 FLRA No. 20

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3911
(Union)

and

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
(Agency)

0-AR-3495

_____

DECISION

September 19, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert L. Douglas filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated provisions in the parties' collective bargaining agreement (CBA) and flexiplace agreement (FA) when it denied the grievant's request to work two days at an alternate work location (AWL).

      For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      The grievant, a Union official who is entitled to 100% official time, submitted an application to his supervisor for participation in flexiplace. The grievant sought to be placed on flexiplace two days per pay period to perform Union representational work at an AWL (his home) on official time. The Agency denied the request because: (1) the grievant had not specified in his application the amount of time he intended to spend on Agency work; (2) the grievant intended to perform Union activities essentially full time; and (3) there is no provision in the FA for conducting Union business at an AWL. The Union filed a grievance that was denied and the matter was submitted to arbitration on the following stipulated issue:

Did the [Agency] violate Article 5, Section 1; Article 6, Section 4; Article 6, Section 8, and/or Article 8, Section 1A of the [CBA] (dated September 1994) and/or Sections III, IV, VI and/or X of the Flexiplace Agreement (effective on November 13, 1998) by its treatment of the [g]rievant . . . . If so, what shall be the remedy?

Award at 1. [n1] 

      The Arbitrator stated that the case involved contract interpretation and the "parties stipulated that the Union has the burden to prove its case by a fair preponderance of the credible evidence." Id. at 15-16. The Arbitrator interpreted the relevant provisions in the parties' CBA and FA and found as follows:

A.     The CBA

      The Arbitrator found "no credible evidence exists that the [Agency] restrained, interfered with, coerced, or discriminated against the [g]rievant within the meaning" of Article 5, Section 1. Id. at 18. According to the Arbitrator, the grievant's status as a Union official, entitled to 100% official time, "did not automatically allow, entitle, or qualify [him] to continue to participate in the Flexiplace Program." Id. at 19. The Arbitrator determined that the grievant's continued participation depended on the FA.

      The Arbitrator next found the record established that the Agency's decision to deny the grievant's application "did not preclude [him] from leaving his work station for representational purposes[]" and, therefore, "no violation of Article 6, Section 4 occurred." Id. at 19 and 20. He also found that Section 8 of the same contract article "is completely silent about the effect, if any, of the Flexiplace Program on the use of official time by Union representatives." Id. at 20. According to the Arbitrator, the fact that local supervisors may have permitted the grievant to spend approximately 25% of his time on the previously authorized flexiplace to perform representational work, did not mean the Agency lacked the right to enforce the FA and the CBA when it learned of the grievant's gradual change in his use of flexiplace and the "dramatic shift" reflected by his request to devote 100% of his time to perform representational activities from his AWL. Id. at 20. The Arbitrator found, therefore, the Agency did not violate Article 6, Section 8 by denying the request. [ v58 p102 ]

      The Arbitrator determined that Article 8, Section 1(A) protects employees engaged in protected activities. He found that in the flexiplace negotiations, the parties failed to address the treatment of Union representatives on 100% official time to conduct representational activities. The Arbitrator determined that the Agency sought to "harmonize the [f]lexiplace [p]rogram with the [CBA] in a reasonable way." Id. at 21. Accordingly, he found there was no "credible evidence" that showed the Agency's action compromised the grievant's rights protected by Article 8, Section 1. Id. at 21.

B.     The FA

      The Arbitrator found that Section III of the FA concerning portable work sets forth factors for determining the suitability for work to be performed at an AWL. He found the record established the Agency "carefully considered these performance factors and concluded that the [g]rievant's request . . . did not constitute portable work." Id. at 21-22. According to the Arbitrator, the Agency found the lack of any information from the Union about the substance of the representational activities to be performed by the grievant at the AWL precluded the work from being "clearly defined and measurable [one of the enumerated factors]." Id. at 22. The Arbitrator found that in the absence of any reasonable alternative offered by the Union, there was no basis to find the Agency acted arbitrarily, capriciously, unreasonably, or in a discriminatory manner in applying the factor to the grievant. The Arbitrator also found that in the absence of portability the Agency did not violate Section VI, which lists portability as one of the criteria for approval of participation in flexiplace.

      The Arbitrator found that Section IV of the FA provides that an employee who participates in the program "must only perform EPA business while on a [f]lexiplace assignment." Id. He determined the words "EPA business" were "unclear and ambiguous;" the Union had the burden to prove its case by a preponderance of the evidence; and the absence of any persuasive evidence to resolve the ambiguity precluded a finding that the Agency violated Section IV by concluding that the performance of representational activities did not constitute EPA business under this section. Id.

      The Arbitrator found that Section X anticipates that a change in the work of an employee will require a reassessment of the suitability for an employee to continue flexiplace. He determined that the grievant's "new status as a Union official [entitled to 100%] official time . . . triggered Section X." Id. at 23. He found, therefore, that there was no credible evidence that the Agency acted improperly by conducting the reassessment of grievant's participation in flexiplace.

      Accordingly, he concluded the Union "failed to prove by a fair preponderance of the credible evidence that any violation of the [CBA] and/or the Flexiplace Program . . . occurred when the [Agency] declined to approve" the grievant's request. Id. In so concluding, he found that cases cited by the parties, including a regional director's letter dismissing an unfair labor practice (ULP) charge, were not relevant to this dispute. Therefore, he denied the grievance.

III.     Positions of the Parties

A.     Union Exceptions  [n2] 

1.     The FA

      The Union challenges the Arbitrator's finding that, based on the grievant's new status as a Union official on 100% official time, the Agency's reevaluation of his status was proper under Section X, and argues that this finding is based on a nonfact. The Union asserts that as the Agency has not issued the grievant a new position description or performance standards there was no change under Section X that required the Agency to reevaluate his status.

      The Union asserts that the Arbitrator exceeded his authority by modifying the "definition of portability found in Section III of the [FA] to add requirements that the work" at the AWL be not only clearly defined and measurable but also capable of review and evaluation. Exceptions at 6. The Union states there "is no dispute that Union work cannot be evaluated and appraised by the Agency, but that does not mean [such work] is not clearly defined and measurable[,]" as required by Section III. Id. at 5. In support, the Union claims that the Chief of the Agency's Human Resources Branch testified that Union work was "definable and measurable." Id. (emphasis omitted).

      With respect to Section VI. A.1. of the FA, which lists the portability of the work as one of the criteria for approval for flexiplace, the Union states that the Arbitrator found that in the absence of portability, the Agency had a right under the flexiplace program to decline to approve the grievant's request. The Union excepts to this finding contending that it "rests" on the [ v58 p103 ] Arbitrator's finding concerning the definition of portability in Section III of the FA. Id. at 7. The Union asserts, therefore, that this finding must be set aside if the exception to Section III is sustained. Id.

      The Union contends the Arbitrator's finding that "EPA business" in Section IV of the FA is "unclear and ambiguous" does not draw its essence from the FA. According to the Union, the Arbitrator's finding is implausible because it is inconsistent with his finding on Section X, that is, that Section X anticipates that a change in the work of an employee will require a reassessment of the employee's continued participation in flexiplace. The Union asserts that the Arbitrator found no ambiguity concerning Section X but found, based on his interpretation, that a change in the grievant's work occurred. The Union contends that this finding is inconsistent with his interpretation of Section IV.

2.     The CBA

      The Union contends the Arbitrator's finding that the Agency's decision disapproving the grievant's request "did not limit in any way [his] ability to leave his work station for representational purposes[,]" and thus did not violate Article 6, Section 4, was based on a non-fact. Id. at 9 (emphasis in original). According to the Union, the grievant's flexiplace application "shows he was limited in at least one way, i.e., he could not go to [his AWL] on Tuesdays and Thursdays to perform representational work . . . ." Id. The Union also asserts the Agency's explanation for denying the request did not identify a "pressing job related need" as required by Article 6, Section 4, that would preclude the grievant from performing representational work at his AWL. Id. Relying on a ULP charge involving the same grievant, as here, that was dismissed by the Boston Regional Office (WA-CA-00497), the Union asserts that this dismissal supports its contention that Article 5, Section 1, which concerns employees' rights, is the same as § 7102 of the Statute and, therefore, this provision must be interpreted consistent with the Statute. [n3]  The Union thus contends that the Arbitrator's determination that the evidence did not establish a violation of Article 5 is subject to review as contrary to law. In support, the Union cites, among other cases, United States Dep't of the Treasury, Customs Service, Southeast Region, 43 FLRA 921 (1992) (Customs Service). The Union asserts that the grievant "was discriminated against as a result of his protected activities." Id. at 11. The Union refers to certain evidence, including the Agency's denial of the request and asserts that as the "sole reason" provided by the Agency for discontinuing the grievant's participation in flexiplace "was that he intended to perform only Union representational work at his [AWL,]" it can be concluded the grievant suffered disparate treatment because of his Union activities. Id. at 14.

      For similar reasons, the Union argues the Arbitrator's finding that the record lacks any credible evidence that the Agency's action in implementing flexiplace compromised employees' rights under Article 8, Section 1.A. is contrary to § 7102.

      The Union contends the Arbitrator's finding, that the Agency did not violate Article 6, Section 8 because its denial of the grievant's request did not preclude him from using 100% official time, exceeds the Arbitrator's authority because the issue of grievant's use of 100% official time at his customary work station was not an issue before the Arbitrator. The Union also contends the Arbitrator's finding regarding Article 6, Section 4, that the AWL created a more complicated situation for the grievant to pursue representational obligations on a face-to-face basis with unit employees, also exceeded his authority because "[t]he means by which the Union chooses to conduct its representational activities was not an issue before the [A]rbitrator." Id. at 20.

      Finally, the Union filed a motion to strike the Agency's opposition arguing that in this submission the Agency refers to Case Nos. BN-CA-01-0505 and BN-CA-01-0528 that were dismissed by the Regional Director (RD) of the Boston Regional Office and included such letter as an attachment. The Union contends this document was not entered into evidence before the Arbitrator and, therefore, the document and any reference to it should not be considered by the Authority pursuant to § 2429.5 of the Authority's Regulations. Moreover, in the Union's view, the cases have no bearing on this case because they did not involve the grievant. Additionally, the Union contends the Agency's claim that the Union made a "misstatement of fact" concerning Case No. BN-CA-01-0505, is erroneous as it refers to Case No. WA-CA-00497 in its exceptions and not Case No. BN-CA-01-0505. Given this alleged misstatement, the Union asserts that the opposition should be stricken.

B.     Opposition

      According to the Agency, the "principle disagreement between the [parties] concerns . . . `portable work' as that term is defined in the [FA,] Section III.C." Opposition at 2. The Agency asserts that there is no [ v58 p104 ] merit to any argument that representational work meets the definition of portable work. The Agency contends that the Union "misrepresents the testimony" offered by its witness concerning whether Union representational work was portable. Id. According to the Agency, at no time did any Agency witness testify that such work constituted portable work and at no time during the arbitration did the Union offer any statement as to how such work is clearly defined and measured.

      The Agency also references Case No. BN-CA-01-0505, a ULP charge that was dismissed by the Boston Regional Office, and asserts that the Union misstates the grounds on which this case was dismissed. The Agency contends the Union asserted the charge was dismissed on the grounds that it raised the same issues as the grievance giving rise to this case. However, the Agency contends that, as it stated in its brief to the Arbitrator, the case was dismissed because the RD found the Agency was acting under a reasonable interpretation of the CBA and FA that are involved here.

      The Agency disputes the Union's contention that there is an inconsistency between the Arbitrator's conclusion that the words "EPA business" in Section IV. B.7. of the FA is unclear and ambiguous, and his conclusion that there was a change with respect to Section X. According to the Agency, a change from performing 25% to 100% official Union business constitutes a change under Section X whether EPA business includes Union work or not. The Agency further asserts that the performance of union representational activities does not constitute the work of an agency within the meaning of § 7106 of the Statute. The Agency asserts that the Arbitrator's findings were based on his interpretation of the FA and CBA, and the Union has not established that the award does not draw its essence from these agreements.

      Contrary to the Union, the Agency also contends the Arbitrator's decision concerning Article 6, Section 4 of the CBA, which concerns the Union's official right to leave his work station, was consistent with the stipulated facts.

      The Agency contends that the award is not contrary to § 7102 of the Statute.

      Responding to the Union's motion to strike, the Agency asserts that the Authority's Regulations do not provide for the filing of a reply to its opposition. The Agency further contends that the Union has failed to demonstrate why such document should be considered under § 2429.26(a) of the Authority's Regulations. As to the attached dismissal letter, the Agency asserts that this document is appropriate for the Authority to take official notice of pursuant to § 2429.5 of its Regulations. The Agency notes that in "[f]ootnote 1 in its [b]rief to the Arbitrator," it referred to this dismissal and described what it involved. Response at 1. The Agency contends that it never claimed the subject dismissal involved the grievant. Further, concerning the alleged misstatement, the Agency asserts that the essential point is that the dismissal included rulings on similar issues as presented here. The Agency asserts, therefore, that the motion should not be considered.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      The Union has moved to strike the attachment to the Agency's opposition, citing § 2429.5, and any reference to it because, according to the Union, the document was not entered into evidence before the Arbitrator.

      As the Agency points out, under § 2429.5 of the Authority's Regulations, the Authority may take official notice of issued decisions in other FLRA proceedings. See, e.g., Nat'l Guard Bureau, 57 FLRA 240, 244 (2001); United States Dep't of VA, 57 FLRA 515, 518 n.5. (2001). Accordingly, we deny the Union's motion to strike the regional director's dismissal letter attached to the Agency's opposition.

      In the same motion the Union also claims the opposition should be dismissed in its entirety because it contains a misstatement. Nothing in the Authority's Regulations provides for dismissal of a party's filing on the grounds that the filing contains inaccurate or false information. Accordingly, the Union's motion to strike is denied.

B.     The FA

1.     The Award as It Concerns the FA Is not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged [ v58 p105 ] as a nonfact." United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 57 FLRA 489, 493 (2001) (VA, Ralph H. Johnson, Medical Center).

      In this case, the Union asserts the Arbitrator's finding, that the Agency's reevaluation of the grievant's status under Section X of the FA was proper, is based on a nonfact. The Union's exception challenges the Arbitrator's interpretation of the FA. As previously stated, an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact. Hence, this exception provides no basis for finding the award deficient.

2.      The Arbitrator Did not Exceed his Authority as It Concerns the FA

      Arbitrators exceed their authority when they, as relevant here, disregard specific limitations on their authority. United States Dep't of Agric., Animal and Plant Health Inspection Serv., Plant Protection and Quarantine, 51 FLRA 1210, 1218 (1996).

      The Union contends that the Arbitrator exceeded his authority by modifying the definition of portability found in Section III of the FA. As relevant here, the stipulated issue before the Arbitrator was "[d]id the [Agency] violate . . . Section[] III . . . of the Flexiplace Agreement . . . by its treatment of the [g]rievant . . . ." Award at 1. In finding that the Agency did not violate this provision, the award is directly responsive to the issue as stipulated by the parties. As such, this contention does not provide a basis for finding that the Arbitrator exceeded his authority.

      As the above contention does not provide a basis for finding the award deficient, the Union's assertion that the Arbitrator's finding with respect to Section VI. A.1. of the FA, which is based on the same argument, does not provide a basis for finding the award deficient.

3.     The Award as It Concerns the FA Does not Fail to Draw Its Essence from the Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      In this case, the Union argues that the award does not draw its essence from Sections IV and X of the FA.

      Section IV of the FA lists an employee's responsibilities under the work agreement, including "Performing only official EPA business while on a Flexiplace assignment . . . ." The Arbitrator interpreted and applied the contractual provisions of the FA and determined that the "scope of the term `EPA business' is unclear and ambiguous . . . . EPA business could either include or exclude the performance of Union representational activities." Award at 22. The Arbitrator determined that the Union had the burden to prove its case by a fair preponderance of the evidence; that there was an absence of evidence to resolve the ambiguity; and the absence of such evidence precluded him from finding that the Agency violated this section by deciding that the performance of Union representational activities did not constitute EPA business.

      The Arbitrator interpreted Section X of the FA, which concerns changes under such agreement and provides, in pertinent part, "When any changes of the work agreement changes (e.g., position, work assignment . . . , etc.), the employee and supervisor will reassess the employee's work for Flexiplace suitability and continued approval." Interpreting this provision, he found that the grievant's "new status as a Union official who had a right under the [CBA] to be granted up to 100% use of official time [as compared to the previously 25% time reportedly used] certainly triggered Section X of the [FA]." Award at 23. Based on his findings, the Arbitrator found the record lacked any "credible basis" that the Agency acted inappropriately by conducting the reassessment of the grievant's participation in the flexiplace program. Id.

      As the above reflects, the Arbitrator interpreted and applied the wording of each section and, based on that interpretation and the evidence, determined that the Agency's application of the provisions did not violate the FA. Nothing in the wording of the FA or the Union's contentions demonstrates that the Arbitrator's interpretation and application of Section IV and X are implausible, irrational, or unconnected to the wording and purpose of the agreement. See, e.g., United States Dep't of the AF, Okla. City Air Logistics Ctr., Tinker [ v58 p106 ] AFB, Okla., 55 FLRA 805, 809-10 (1999); United States Dep't of Labor, Wash., D.C., 34 FLRA 757, 761 (1990). Accordingly, the Union has failed to establish that the award does not draw its essence from the FA.

C.     The CBA

1.     The Award As It Concerns the CBA Is not Based on a Nonfact

      The Union asserts that the Arbitrator's finding that the Agency's decision disapproving the grievant's request did not limit his ability to leave his work station for representational purposes and, therefore, did not violate Article 6, Section 4 of the CBA, was based on a nonfact. However, the matter raised by the Union was disputed by the parties at arbitration. See Award at 7 and 19-20. Additionally, to the extent that the Union is challenging the Arbitrator's interpretation of Article 6, Section 4, an interpretation of an agreement cannot be challenged as a nonfact. See, e.g., VA, Ralph H. Johnson, Medical Center, 57 FLRA at 493. Hence, and in accordance with the test discussed supra, the Union's exception, including the contention that the Arbitrator's application of the parties' agreements conflicts with § 7102, does not provide a basis for finding the award deficient based on a nonfact. See, e.g., Lowry AFB, 48 FLRA at 594.

2.     The Award as it Concerns the CBA Is not Contrary to Law

      Referencing certain contract provisions that it asserts are similar to § 7102 of the Statute, the Union contends the Agency improperly relied on the grievant's Union activities in denying his participation in the flexiplace program contrary to § 7102. The Authority reviews the question of law raised by the Union's assertion and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standards of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.

      Section 7102 of the Statute guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal. The Arbitrator found no evidence that established that the Agency "restrained, interfered with, coerced, or discriminated" against the grievant or that the grievant's rights were "compromised." Award at 18 and 21. The Arbitrator found the grievant's status as an official of the Union did not automatically allow, entitle, or qualify him to continue to participate in the flexiplace program. Rather, according to the Arbitrator, such participation depended on the provisions of the flexiplace program, set forth in the FA, that applied to all employees in the unit. The Arbitrator examined the CBA and the FA and found the Agency applied these agreements to the grievant in a reasonable way. It was on the basis of his examination of and application of the agreements that the grievance was denied.

      The Union has not demonstrated that the Arbitrator's determination is contrary to § 7102. As found by the Arbitrator, the grievant's participation in the flexiplace program depended on the provisions set forth in the FA, that applied to all employees in the unit. The Union has not established that the grievant's protected activity was the motivating factor in the Agency's denial of his request to participate in the flexiplace program. Instead, as noted previously, the Arbitrator examined and interpreted the parties' agreements in assessing the Union's claim that the Agency's action in denying the grievant's request discriminated against him and found that there was no evidence that established that the Agency "restrained, interfered with, coerced, or discriminated" against the grievant or that the grievant's rights were "compromised." Award at 18 and 21. Consistent with the Arbitrator's findings, which have not been shown to be erroneous, the exception, including the contention that the Arbitrator's application of the parties' agreements conflicts with § 7102, provides no basis for finding the award deficient. See, e.g., United States Dep't of the AF, Sacramento Air Logistics Ctr., McClellan AFB, Calif., 50 FLRA 96, 99-100 (1995); United States Dep't of HHS, SSA, Region VI, Dallas, Tex., 35_FLRA 1218, 1222 (1990).

3.     The Arbitrator Did not Exceed his Authority as It Concerns the CBA

      According to the Union, the issue of grievant's use of 100% official time at his customary work station was not an issue before the Arbitrator.

      The issue stipulated by the parties here was whether the Agency violated Article 6, Section 8 of the CBA by its treatment of the grievant. The Arbitrator considered the stipulated issue, the parties' arguments, and Article 6, Section 8 of the CBA, which provides:

Official time shall be granted in reasonable and necessary amounts(s) to Union representatives for representational purposes, except for the following: [ v58 p107 ]
The Council President and the Executive Vice President shall be granted up to 100% use of official time.

Award at 3.

      He found the decision by the Agency "to decline the [g]rievant's request for an [AWL] two days each week did not preclude the [g]rievant from receiving up to 100% official time." Id. at 20. In so finding, he considered the evidence and facts of the case and found the record did not establish that the Agency "would have in any way precluded the grievant from having up to 100% of official time for performing representational activities at the [g]rievant's traditional and customary work station." Id. He found Article 8, Section 6 is "completely silent about the effect, if any, of the Flexiplace Program on the use of official time by Union representatives." Id. The Arbitrator's finding concerning the grievant's use of 100% official time is directly responsive to the parties' stipulated issue of whether the Agency violated Article 6, Section 8. As such, the Arbitrator addressed the stipulated issue, and this exception provides no basis for concluding that the Arbitrator exceeded his authority by deciding an issue that was not before him.

      As to the Union's contention that the Arbitrator exceeded his authority with respect to his finding concerning the grievant's ability to pursue representational obligations on a face-to-face basis while at his AWL, the record establishes that this finding was directly related to the Arbitrator's resolution of the parties' stipulated issue concerning whether the Agency violated Article 6, Section 4. This provision sets forth a procedure for a Union representative to leave his or her work station for representational purposes, and the Arbitrator's finding concerns the grievant's right to pursue representational obligations under this provision. Consequently, even if one were to conclude that this arbitral finding addressed an "issue" rather than constituting only a discussion of relevant facts, the Union has not demonstrated that the Arbitrator exceeded his authority.

V.     Decision

      The Union's exceptions are denied.


APPENDIX

The pertinent provisions of the CBA are as follows:

ARTICLE 5
UNION RIGHTS AND DUTIES

Section 1.      Employees shall be protected from restraint, interference, coercion or discrimination in the legitimate exercise of their rights and responsibilities as designated representatives of the Union. Within the confines of laws, rules and this Agreement, the Union has the right to designate representatives of its own choosing.

ARTICLE 6
UNION ACTIVITIES

Section 4.      When it is necessary for a union representative to leave his/her work station for representational purposes, the employee will inform his/her immediate supervisor when and where he/she needs to go, and provide the supervisor with a telephone number where he/she may be reached when practicable. In the event that a pressing job-related need precludes the immediate excusal of the union representative, the supervisor will inform the employee of the earliest time he/she will be permitted to leave the work site. The employer will report to the supervisor upon his/her return to the work site.

Section 8.      Official time shall be granted in reasonable and necessary amounts(s) to Union representatives for representational purposes, except for the following:

      The Council President and the Executive Vice President shall be granted up to 100% use of official time.

ARTICLE 8
EMPLOYEE RIGHTS

Section 1.

A.     Each employee has the right, freely and without fear of penalty or reprisal, to form, join, and assist labor organizations or to refrain from any such activity, and each employee shall be protected in the exercise of this right. [ v58 p108 ]

AFGE/EPA Flexiplace Program

III.     Definitions

A.     Flexiplace. Flexiplace is the assignment to work at an alternate work location other than an employee's official work station. Participation is voluntary. Generally, any occupation/job involving portable work can be considered for inclusion. Management will approve participation based on such factors as mission accomplishment, costs, and benefits to the organization and employees. There are three forms of Flexiplace covered by this agreement:

      1. Regular. Under this type of Flexiplace arrangement, employees may request the performance of duties at an [AWL] on a regular and recurring basis. Normally, employees will be scheduled to work no more than two days per week at the [AWL]. . . . .

. . . .

C.     Portable Work. Work that is normally performed at the employee's official work site but which can be performed with equal effectiveness at another location with respect to quality, quantity, timeliness, customer service and other aspects of mission accomplishment. It is understood that this work is part of the employee's regular assignment and does not involve a change in duties or the way assignments are performed. In order to be portable, the work must be clearly defined and measurable.

IV.     Responsibilities

A.     Management is responsible for approving the use of Flexiplace in accordance with the terms of this agreement and in consideration of such factors as mission accomplishment, service to the public, and costs and benefits to the Agency and its employees.

. . . .

7.     Performing only official EPA business while on a Flexiplace assignment, including maintaining an AWL environment that is free from distractions and interruptions.

. . . .

VI.     Criteria for Approval/Disapproval

A.     Criteria for approval includes the following:

1.     Portability of the work.
2.     Reasonableness and practicality of the request with respect to such issues as complexity of administrative arrangements . . . .
3.     Additional cost to the Agency.
. . . .
6.     Needs of the employee.

B.     Generally, requests will not be approved if any of the following conditions apply:

[Seven conditions are listed.]

X.     Changes

A.     When any aspect of the work agreement changes (e.g., position, work assignment, supervisor, [AWL], etc.), the employee and supervisor will reassess the em