United States, Department of Health and Human Services, National Institutes of Health, Bethesda, Maryland (Agency) and American Federation of Government Employees, Local 2419 (Union)

[ v60 p184 ]

60 FLRA No. 41

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
NATIONAL INSTITUTES OF HEALTH
BETHESDA, MARYLAND
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2419
(Union)

0-AR-3820

_____

DECISION

August 25, 2004

_____

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 M. David Vaughn filed by the Agency under § 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 denied the grievance and found that the Agency had not violated Article 37 of the parties' agreement when it refused to broadcast a Union announcement. For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Union, pursuant to Article 37, Section 5 of the parties' agreement, sought permission to present an announcement from the Union's President over the intercom at the National Institutes of Health campus. [n1]  The announcement read:

[AFGE] is the Federal government's largest labor union, representing over 600,000 employees of the Federal government. AFGE Local 2419 has been established on the NIH campus representing employees since 1962. We represent and assist employees in every area of employee labor relations, negotiations, grievances, appeals, hearings, partnerships, A-76 reviews. AFGE Local 2419, a union of employees, by employees, for employees, join us today. The future is ours! AFGE 2419 may be reached at 496-0594 or at their web site www.afge2419.org. Richard Laubach, President.

Award at 6.

      The Agency, referring to an unwritten policy on minimizing patient disturbances, denied the Union's request because the announcement could possibly disturb patients and contained information that patients would have no interest in. Id. at 8-9. The Union filed a grievance, which was subsequently submitted to arbitration. The issue before the Arbitrator was:

Did the Agency violate Article 37, Section 5 of the Negotiated Agreement when it refused to broadcast a message requested by the Union? If so what shall be the remedy?

Id. at 2.

      In the award, the Arbitrator determined that the message requested by the Union could be restricted "in accordance with existing policies and procedures." Id. at 10. The Arbitrator found that the Agency had an unwritten policy that in general terms would prohibit intercom announcements that were of no interest to patients.

      However, the Arbitrator also found that the Agency had allowed announcements over the intercom that have been "explicitly directed to employees" such as a vendor expo announcement and an employee's group "[t]own meeting[]" announcement. Id. at 11. In this respect, the Arbitrator determined that the Agency's own actions had undermined its policy and, accordingly, that the policy would not preclude the Union from transmitting [ v60 p185 ] messages geared primarily to employees because "there is no proof that interest in Union-related activities would be of less interest to patients than a vendors fair or vacation package presentation." Id. As such, the Arbitrator found that the only portion of the Union's announcement that was improper under the policy was the Union's solicitation for membership. In arriving at this conclusion, the Arbitrator found that patients would have no interest in joining the Union but noted that they may have an interest in "learning about it [the Union]." Id. at 12. Accordingly, the Arbitrator found that the Agency did not violate Article 37 of the parties' agreement, but based his finding on a "narrower ground" than argued by the Agency. Id. at 13.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency alleges that the "Arbitrator exceeded his authority when he based his decision on a hypothetical issue that was not submitted to arbitration[.]" Exceptions at 6. In this regard, the Agency claims that the Arbitrator should have concluded his analysis once he determined that Article 37 of the parties' agreement was not violated. Id. at 6-7. Instead, it argues that the Arbitrator found that the Agency could not "unilaterally deny the Union access to the PA system to broadcast a general informational announcement" and, in so doing, the "Arbitrator based his award on a hypothetical scenario, i.e., whether the Agency could properly deny the Union access to the PA system if the Union had submitted a modified announcement." Id. at 2-3.

      Moreover, the Agency argues that the Arbitrator's award is based on a non-fact in that the Arbitrator found that patients may be interested in learning about the Union. Exceptions at 7. It contends that the parties never disputed whether patients were interested in learning about the Union and that the Arbitrator failed to differentiate between employee directed announcements that concerned scheduled activities or benefits that are open to patients and the Union's announcement which "does not concern an activity or benefit available to patients." Id. at 8. As such, it contends that if not for this erroneous finding the award would have resulted in a different outcome.

B.     Union's Opposition

      The Union states that "the Arbitrator . . . did not exceed his authority[.]" Opposition at 2. It argues that the Arbitrator can craft his decision and remedy as he deems appropriate and that his decision is responsive to the patient policy issue raised by the Agency. Id. at 3.

      Additionally, the Union argues that the Arbitrator "made his ruling based on the facts presented before him at the hearing." Opposition at 2. The Union argues that patients can join the Union as associate members and that its activities are open to patients along with access to its website. Id. at 4. As such, it contends that the Authority should dismiss the Agency's exceptions in their entirety. [n2]  Id. at 5.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issue to be resolved in a grievance. [n3]  See United States Dep't of Transp., Fed. Aviation Admin., Wash., D.C., 55 FLRA 322, 325 (1999). Moreover, the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. Id.

      The Agency claims that the Arbitrator exceeded his authority by addressing whether the Agency would be required to approve a modified announcement. Exceptions at 6-7. We disagree for the reasons below. [ v60 p186 ]

      First, the Arbitrator never actually ordered the Agency to approve a modified announcement from the Union or to play such a modified announcement over the intercom as claimed by the Agency. Award at 14. While it is true that the Arbitrator found that the only valid reasons for rejecting the announcement were based on the Union's inclusion of membership solicitation, the Arbitrator, nonet