United States Department of Labor (Agency) and American Federation of Government Employees, Local 12 (Union)

[ v62 p153 ]

62 FLRA No. 40

UNITED STATES DEPARTMENT OF LABOR
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

0-AR-4105

_____

DECISION

September 13, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Arline Pacht filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R., Part 2425. The Union did not file an opposition to the Agency's exceptions.

II.     Background and Arbitrator's Award

      Beginning in March 2002, due to a medical condition, the affected employee began receiving a temporary reasonable accommodation that permitted her to work from home. Exceptions Attachment, Union's Post-hearing Brief (Union Brief) at 1. The temporary reasonable accommodation was scheduled to end August 2, 2004. Id. In April 2004, the affected employee began working with a new supervisor. Award at 2. In May 2004, the new supervisor notified the affected employee that she would have until August 2, 2004, to submit information about her medical condition directly from the doctor who examined her, or the reasonable accommodation would come to an end on that date. Id. On August 6, 2004, the affected employee's Union representative attempted to hand-deliver the requested medical information to the affected employee's supervisor. Id. at 3. The supervisor believed that the delivery of the medical certificate by a third party implicated the affected employee's privacy rights, and informed the Union representative that he would not accept the medical certificate. Id. After refusing to accept the delivery of the medical information, the supervisor e-mailed the Union representative, and requested that any medical information submitted by the affected employee through the Union representative or any third party be accompanied by a valid signed waiver by the affected employee. Id.

      The Union filed two grievances stemming from the August 6 exchange between the Union representative and the supervisor. The first grievance, dated August 10, asserted that the supervisor's refusal to meet with the Union representative constituted an unfair labor practice (ULP) because the Union representative was acting in his representational capacity when he attempted to meet with the supervisor and the supervisor's refusal to meet interfered with the Union's right to represent the affected employee. [n2]  Union Brief at 15-17. The second grievance, dated August 13, contended that the supervisor's refusal to accept the medical documentation from the Union representative without a waiver constituted a ULP because: (1) a waiver was not necessary since the Privacy Act was not implicated; and (2) if a waiver was required, then the affected employee had already submitted a waiver in July 2004. [n3]  Id. at 4, 16. When the grievances were not resolved, they were submitted to separate arbitrations before different arbitrators. This case considers the August 13 grievance.

      [ v62 p154 ] The Arbitrator defined the issue to be arbitrated as: "Whether the Agency violated the Union's right to represent members of the bargaining unit by refusing to accept a medical certificate from a Union representative tendered on behalf of a bargaining unit member, and by issuing a letter imposing a restriction on the Union's right to provide information on behalf of an employee." Award at 5.

      The Arbitrator found that the Agency interfered with the rights of the Union, "[t]o represent and engage in protected activities on behalf of bargaining unit members and refused to meet and consult with designated representatives of AFGE Local 12 regarding receipt of information affecting the protected interests of unit employees[.]" Id. at 10.

      Specifically, the Arbitrator concluded that the Agency violated § 7116(a)(1) of the Statute when the supervisor chose not to meet with the Union representative because the Union representative was acting in his official representative capacity and engaged in protected activity when he attempted to deliver the affected employee's medical certificate to the supervisor on August 6. Award at 6, 9. The Arbitrator also concluded that the supervisor should have accepted the medical information, stating that the supervisor's belief that a waiver was needed to receive medical information was not credible, and pointing out that the Privacy Act prohibits Agencies from releasing, not receiving, confidential information. Id. at 9 (citing 5 U.S.C. § 552(a)). In addition, according to the Arbitrator, the Agency violated § 7116(a)(1) and (5) by refusing to "consult with or receive medical information from any Union agent without a release from the affected employee[.]" Id. at 10.

      Having found that the Agency violated § 7116(a)(1) and (5) of the Statute, the Arbitrator ordered the Employee Benefits Security Administration (EBSA) to post copies of a notice signed by the EBSA director advising employees that the EBSA management or its designated agents: (1) will not interfere with the right of the Union to represent and engage in protected activities on behalf of bargaining unit members; and (2) will not fail or refuse to meet and consult with representatives of the Union about matters affecting the protected interests of unit employees. Id. at 10-11.

      The Arbitrator dismissed the Union's § 7116(a)(2) claim.

III.     Positions of the Parties

A.      Agency

      The Agency requests that the award be set aside because the Arbitrator exceeded her authority by: (1) failing to resolve what the parties agreed was the underlying issue at arbitration; (2) improperly basing her decision as to the August 13 grievance on facts pertaining to the August 10 grievance; and (3) deciding issues contained in the August 10 grievance, which was not at issue in the arbitration. Exceptions at 5, 10. The Agency argues that the Arbitrator made it clear at the arbitration that "the key issue was whether [the supervisor] was provided with `a valid signed waiver' that allowed the Agency to receive [the affected employee's] medical information from a third party." Id. at 8-9.

      The Agency maintains that the Arbitrator incorrectly found that the Agency violated § 7116(a)(1) both because she applied the wrong legal framework in her analysis and erroneously found that the Union representative was engaged in protected activity. Id. at 13-16. The Agency claims that because the Union representative was not acting in his official capacity when delivering the medical certificate to the supervisor, neither the affected employee nor the Union representative's rights were implicated under § 7116(a)(1). Id.

      Additionally, the Agency contends that the Arbitrator incorrectly found that the Agency violated § 7116(a)(5), which, the Agency argues, requires agencies to consult or negotiate in good faith with a labor organization. Id. at 18. The Agency maintains that there was no allegation in the grievance that the Agency refused to bargain in good faith or that any national consultation rights were involved. Id.

      The Agency asks that the Arbitrator's conclusions with regard to the August 10 grievance be vacated because issues in that grievance were not before her. Id. at 10. The Agency also asks that the Arbitrator's conclusions with regard to the August 13 grievance be vacated because: (1) she did not resolve the underlying issue before her, namely, whether the supervisor's refusal to accept the affected employee's medical information without a signed waiver constituted an unfair labor practice; and (2) her findings with regard to that grievance are inextricably linked to the August 10 grievance. Id. at 6, 10-11. The Agency asks that if the Authority chooses not to set aside the award, then it remand the case to the Arbitrator for her to issue a new award that is based only on the allegations in the August 13 grievance. Id. at 11. [ v62 p155 ]

B.      Union

      As noted above, the Union did not file an opposition to the Agency's exceptions.

IV.      Analysis and Conclusions

A.      The Arbitrator exceeded her authority with respect to one of the three claims made by the Agency.

      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. SSA, Headquarters, Balt., Md., 57 FLRA 459, 461 (2001) (SSA). An arbitrator does not exceed her authority when addressing issues included in the stipulated issue even though those matters may be related to issues addressed by another arbitrator. Gen. Serv. Admin., 47 FLRA 1326, 1331 (1993) (Authority found agency's contention that arbitrator exceeded authority by considering March 1992 performance evaluation that had been submitted to another arbitrator without merit because arbitrator addressed an issue that was integrally related to the stipulated issue before him) (GSA); see also, United States Dep't of Defense Dependents Schools, Germany Region, 39 FLRA 13, 18-19 (1991)). The Authority will find an award deficient when it is established that the arbitrator determined an issue not included in the subject matter submitted to arbitration. Veterans Admin., 24 FLRA 447, 450 (1986)).

      The Agency claims that the Arbitrator exceeded her authority in three respects: (1) by failing to decide what the parties agreed at arbitration was the underlying issue to be resolved, namely whether the supervisor insisted upon and received a medical waiver from the affected employee; (2) by improperly basing her award regarding the August 13 grievance on facts pertaining to the August 10 grievance; and (3) by deciding issues contained in the August 10 grievance.

      In its August 13 grievance, the Union claimed that the supervisor committed a ULP by not giving effect to a medical waiver allegedly submitted by the affected employee. Subsequently, at arbitration the parties identified the issue to be resolved as whether the supervisor had required a waiver and whether that waiver had already been supplied to the Agency. Exceptions at 7-8. In its post-hearing brief, however, the Union acknowledged that whether that waiver was submitted or received was essentially irrelevant. Union Brief at 16. Likewise, in the award, the Arbitrator noted that whether the medical waiver was submitted had no bearing on the issue, as the Privacy Act of 1974 prohibits an Agency from releasing, not receiving, confidential information without the consent of the individual involved. [n4]  Award at 5, 9 n.13 (emphasis added). Moreover, while the Agency argues in its exceptions that the Arbitrator exceeded her authority by not deciding whether the medical waiver was required and submitted, the Agency does not dispute that this issue is irrelevant in this case. Exceptions at 8.

      Consistent with the foregoing, both parties agree that the correct issue to be resolved is not whether the waiver had been required, submitted and received, but whether the supervisor committed a ULP by requesting a medical waiver and refusing to accept the medical documentation without knowledge of whether such a waiver existed. Thus, the Arbitrator did not exceed her authority by not deciding whether the medical waiver was actually submitted to the Agency.

      The Arbitrator also did not exceed her authority by considering facts that were common to both grievances. Both the August 10 and August 13 grievances stem from the same incident in which the Union representative attempted to drop off the affected employee's medical information at the supervisor's office. The Agency claims that the Arbitrator's award as to the August 13 grievance must be vacated because the Arbitrator's finding as to whether the supervisor's refusal of the medical documentation and demand for a waiver constitutes a ULP is "inextricably intertwined with her conclusion regarding the August 10 grievance." Exceptions at 10-11. Contrary to the Agency's claim however, in rendering an award, an Arbitrator is permitted to address matters in the stipulated issue relating to issues to be addressed by another arbitrator where those matters are integrally related to the stipulated issue. GSA, 47 FLRA at 1331. The circumstances surrounding the attempted delivery of the medical certificate are integrally related to the Union representative's attempt to meet with the supervisor and thus, when deciding whether the supervisor committed a ULP by refusing the medical documentation, the Arbitrator did not exceed her authority by considering issues involved in the Union representative's attempt to meet with the supervisor.

      Finally, the parties do not dispute that only the August 13 grievance was before the Arbitrator. The August 13 grievance alleges that the supervisor committed a ULP by refusing to accept the affected employee's medical documentation. The August 10 grievance alleging that the supervisor committed a ULP by refusing [ v62 p156 ] to meet with the Union representative was submitted to arbitration before a different arbitrator and thus was not before the Arbitrator in this case. While the Arbitrator properly addressed and resolved the issue of the August 13 grievance, she went on to decide the issue of the August 10 grievance, as well, concluding that the Agency interfered with the rights of the Union by refusing "to meet and consult with designated representatives of AFGE Local 12 regarding receipt of information affecting the protected interests of unit employees[.]" Award at 10. As only the August 13 grievance was before the Arbitrator, and as the stipulated issue in the August 13 grievance concerned only the supervisor's rejection of the medical information delivered by the Union representative, not his refusal to meet with the Union representative, the Arbitrator exceeded her authority by determining the issue of the August 10 grievance. SSA, 57 FLRA at 461 (arbitrators exceed their authority when they resolve issues not submitted to arbitration). Thus, we find that the Arbitrator exceeded her authority with regard to the August 10 grievance and that the portion of the award pertaining to the August 10 grievance must be set aside.

B.      The Arbitrator's conclusion that the Agency violated § 7116(a)(1) is not contrary to law, but her conclusion that the Agency violated § 7116(a)(5) is contrary to law.

      When a party's exception challenges an arbitration award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In this regard, an arbitrator's failure to apply a particular legal analysis "does not render [an] award deficient because . . . in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings." AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 910 n.6 (1998) (Nat'l Border Patrol Council) (emphasis in original). In making that assessment, the Authority defers to the arbitrator's factual findings because the parties bargained for the facts to be found by an arbitrator chosen by them. AFGE, Local 2612, 55 FLRA 483, 486 (1999) (Local 2612).

      The Authority has held that the standard for determining whether a statement or conduct violates § 7116(a)(1) of the Statute is an objective one. United States DOJ, Fed. Bureau of Prisons, Fed. Correctional Inst., Florence, Colo., 59 FLRA 165, 191 (2003). See United States Dep't of Agric., United States Forest Serv., Frenchburg, Job Corps, Mariba, Ky., 49 FLRA 1020, 1034 (1994). The question is whether, viewed objectively, the agency's action would tend to interfere with, restrain, or coerce employees in the exercise of their rights protected under the Statute. Fed. Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 53 FLRA 1500, 1508-11 (1998).

      Additionally, § 7116(a)(5) requires agencies to consult or negotiate in good faith with labor organizations. 5 U.S.C. § 7116(a)(5). Section 7114(b)(1) and (3) of the Statute state that "[t]he duty of an agency and an exclusive representative to negotiate in good faith . . . shall include the obligation . . . to approach the negotiations with a sincere resolve to reach a collective bargaining agreement . . . [and] . . . to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[.]" United States Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 (1990).

      The Agency claims that the award is contrary to law because, in finding that the Agency violated § 7116(a)(1), the Arbitrator both applied the wrong framework and erroneously found that the Union representative was engaged in protected activity. Exceptions at 13-16. The Agency also claims that the award is contrary to law because the Arbitrator misapplied the Statute in finding that the Agency violated § 7116(a)(5). Id. at 18.

      With respect to the § 7116(a)(1) portion of the award, the Agency correctly points out that the Arbitrator failed to apply the framework for resolving claimed violations of that section and, instead, applied the framework used to resolve claimed violations of § 7116(a)(2). See Award at 6 (Arbitrator set forth shifting-burden standard applied in § 7116(a)(2) cases). However, the Arbitrator's failure does not, by itself, render the award deficient because, as stated above, "in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings." Nat'l Border Patrol Council, 54 FLRA at 910 n.6 (emphasis in original) (citation omitted). Thus, it is necessary to determine whether, in light of the Arbitrator's factual findings and the record, the Arbitrator's legal conclusions that the Agency violated § 7116(a)(1) by interfering with the Union representative's exercise of rights protected by the Statute is consistent with law.

      [ v62 p157 ] As to the latter claim, the Arbitrator found that the Union representative was acting in his official capacity because the Union representative was attempting to assist the affected employee in meeting her requirements under the parties' collective bargaining agreement to submit medical documentation in support of sick leave requests. Award at 6. The Arbitrator also found that the supervisor "surely understood" and "knew" the purpose of the Union representative's action in attempting to deliver the medical certificate. Id. at 7. The Arbitrator acknowledged testimony by the affected employee that the Union representative was acting as a "courier." Id. at 6. However, the Arbitrator did not find this testimony dispositive, because in the Arbitrator's view, "a Union agent surely can discharge his representative responsibilities by serving as a messenger for a needy employee." Id.

      The Agency's argument that the Union representative was not acting in his official capacity when delivering the medical information is based solely on the same testimony referenced by the Arbitrator -- the affected employee's testimony that the Union representative was acting as a "courier." Exceptions at 15. This argument ignores the Arbitrator's reasoning that the Union representative was attempting to assist the employee in complying with her responsibilities under the parties' collective bargaining agreement. The Agency also overlooks that in the same testimony where the affected employee referred to the Union representative as a "courier," she also testified that the Union was engaged in ongoing attempts to represent her regarding her requested accommodation. See Transcript at 37. In these circumstances, the Agency has not demonstrated that the award is deficient because the Union representative was not acting in his official capacity when he attempted to deliver the medical documentation. See Local 2612, 55 FLRA at 486 (union failed to demonstrate that award finding that an employee was not acting as a union representative was deficient).

      There is no dispute that the supervisor prevented the Union representative from delivering medical documentation on behalf of the affected employee. Consistent with the foregoing discussion, the Union representative was exercising rights protected by the Statute when undertaking this activity. In this regard, § 7116(a)(1) of the Statute provides that it shall be an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise of any right provided by the Statute. 5 U.S.C. § 7116(a)(1). Section 7102 of the Statute sets forth certain employee rights including the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal and that each employee shall be protected in the exercise of such right. 5 U.S.C. § 7102. Such right includes the right to act for a labor organization in the capacity of a representative. Congressional Research Employees Association, IFPTE, Local 75, 59 FLRA 994, 1001 (2004). Thus, by preventing the Union representative from delivering the medical documentation, the supervisor "interefere[d]" with the Union representative's right, within the meaning of § 7116(a)(1) of the Statute, and the award finding a violation of § 7116(a)(1) is not contrary to law. We, therefore, deny the Agency's exception as to this portion of the award.

      Finally, with respect to the § 7116(a)(5) portion of the award, the Arbitrator did not cite any authority supporting her conclusion that the Agency violated § 7116(a)(5) when the supervisor refused to accept the medical information. Moreover, based on our de novo review of the award, we find no basis on which to conclude that the Agency's refusal to accept the disputed medical documentation violated any aspect of its bargaining and consultation obligations under § 7116(a)(5) of the Statute. We note that whether the supervisor violated § 7116(a)(5) by refusing to meet with the Union representative is beyond the scope of award in this case because it is part of the August 10 grievance. See note 2, supra. Thus, we find that the § 7116(a)(5) portion of the award is deficient.

V.      Decision

      The portions of the award resolving the August 10 grievance and finding a violation of § 7116(a)(5) of the Statute are set aside. The Agency's remaining exceptions are denied. [ v62 p158 ]


Opinion of Chairman Cabaniss:

      I generally agree with the majority's decision in this case. However, I write separately to express my concern with the manner in which the Authority addresses deficiencies in arbitration awards. All too often we are called upon to review awards where the arbitrator exceeded his or her authority, or failed to apply the proper legal framework to decide the arbitration. In such cases the Authority, under the auspices of de novo review, routinely determines the merits of the arbitration without discussing directly the deficiencies found in the award.

      Under our case law the Authority reviews questions of law raised in exceptions to an arbitrator's award de novo, and can apply the proper standard to the facts as determined by the arbitrator if the arbitrator uses the wrong legal standard. However, I am concerned that the routine use of this practice has problematic and unintended effects: 1) it does not encourage arbitrators to use due diligence to properly apply Authority case law to the facts of a case; 2) it does not guide agencies and unions in selecting arbitrators who properly frame the issues to be decided in a grievance, or carefully apply well-established law to the facts of a grievance; and 3) it does not provide any Authority guidance to arbitrators or parties regarding recurrent deficiencies we find in these awards.

      Regarding the current case, I believe sufficient pertinent facts can be drawn from the arbitrator's award to decide the case. However, I intend to continue my practice of closely reviewing arbitrator awards, and I will not hesitate to recommend remanding an award back to the parties if a future decision is not so clear. In addition, I will continue to encourage the Authority to provide appropriate guidance in arbitration cases where I believe such guidance is necessary. Parties will be better served if we all do our part to help enhance the integrity of the arbitration process.



Footnote # 1 for 62 FLRA No. 40 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 40 - Authority's Decision

   Specifically, the August 10 grievance states: "[The affected employee's] immediate supervisor . . . refused to meet with her exclusive representative . . . regarding a condition of employment as required by statute and CBA. [The supervisor] became laud [sic], red faced and generally belligerent and intimidating when approached by [the Union representative] who was delivering a medical slip for [the employee]. [The supervisor] then called [Department of Labor] security . . . who advised [the Union representative] to stay away from [the supervisor] because [the Union representative] was intimidating [the supervisor] . . . ." Exceptions Exhibit 1.


Footnote # 3 for 62 FLRA No. 40 - Authority's Decision

   Specifically, the August 13 grievance states: "[The affected employee's] immediate supervisor has notified [the Employee Benefits Security Administration] . . . for AFGE Local 12 on August 6, 2004 that: `Without a valid signed waiver from an employee, I will not accept any medical information concerning any employee from a union steward, union representative or any third party.' A waiver has already been served on the [Department of Labor], as [the supervisor] is fully aware, because [the affected employee] can not be present in the FPB due to health matters. [The affected employee] has notified the [Department of Labor] that [the Union representatives] have authority to act for her and receive any and all correspondence pertaining to her grievances and law suits. To date, the [Department of Labor] has failed to comply with that request. The above, as it pertains to the exclusive representative AFGE Local 12, is an ULP." Exceptions Joint Exhibit 3.


Footnote # 4 f