San Antonio Air Logistics Center, Kelly Air Force Base, Texas (Activity) and American Federation of Government Employees, Local 1617, AFL-CIO (Union) 

 6 FLRA No. 75
 
 SAN ANTONIO AIR LOGISTICS
 CENTER, KELLY AIR FORCE
 BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1617
 Union
 
                                            Case No. O-AR-53
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HOWARD F. LEBARON FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    THE FACTS IN THIS CASE, AS SET FORTH IN THE ARBITRATOR'S AWARD, ARE
 ESSENTIALLY THE SAME AS THOSE INVOLVED IN THE GRIEVANCE BEFORE
 ARBITRATOR JOHN F. CARAWAY WHOSE AWARD WAS THE SUBJECT OF EXCEPTIONS
 FILED WITH THE AUTHORITY IN SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR
 FORCE BASE, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 (AFL-CIO), LOCAL UNION 1617, SAN ANTONIO, TEXAS, 6 FLRA NO. 74(1981)
 DECIDED THIS DATE.
 
    AS IN THE MATTER BEFORE ARBITRATOR CARAWAY, WHICH INVOLVED A
 DIFFERENT BARGAINING UNIT AT THE ACTIVITY, THE GRIEVANCE IN THE INSTANT
 CASE BEFORE ARBITRATOR LEBARON WAS FILED BY THE ACTIVITY FOLLOWING
 PUBLICATION BY THE UNION OF AN ARTICLE IN ITS NEWSLETTER ADVISING
 EMPLOYEES TO ANSWER A SURVEY INVOLVING THE ACTIVITY'S ORTHODOX JOB
 ENRICHMENT (OJE) PROGRAM IN A FIXED MANNER SO AS TO INVALIDATE THE DATA
 COLLECTED BY THAT SURVEY.  THE UNION DENIED THE GRIEVANCE AND IT WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.
 
    AS RELEVANT HERE, THE ARBITRATOR FOUND THE ISSUES BEFORE HIM TO BE
 WHETHER THE UNION VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 BY ITS NEWSLETTER ARTICLE AND, IF SO, WHAT THE REMEDY SHOULD BE.  THE
 ARBITRATOR DETERMINED THAT THE UNION HAD VIOLATED THREE PROVISIONS OF
 THE AGREEMENT "(B)Y ADVISING EMPLOYEES NOT TO PARTICIPATE IN THE SURVEY
 AND BY STRONGLY RECOMMENDING THEY ANSWER QUESTIONS IN A MANNER DESIGNED
 TO INVALIDATE THE DATA;" BY NOT COMPLYING WITH ITS AGREEMENT TO
 "MAINTAIN A CONSTRUCTIVE AND COOPERATIVE RELATIONSHIP WHICH WILL
 CONTRIBUTE TO THE CONTINUAL DEVELOPMENT AND IMPLEMENTATION OF
 PROGRESSIVE WORK PRACTICES AND FACILITATE IMPROVED . . . EFFICIENCY AND
 WELL-BEING;" AND BY INTERFERING WITH THE ACTIVITY'S "RIGHT TO MAINTAIN
 THE EFFICIENCY OF OPERATIONS." THE ARBITRATOR REJECTED THE UNION'S CLAIM
 THAT THESE ACTIONS WERE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED
 STATES CONSTITUTION.  INSTEAD, HE DETERMINED THAT THE UNION'S FORCEFUL
 RECOMMENDATION OF CONCERTED ACTION TO INVALIDATE AND INTERFERE WITH THE
 ACTIVITY'S LEGITIMATE PROGRAM WAS NOT PROTECTED.  BECAUSE THE UNION'S
 ACTIONS IN VIOLATION OF THE AGREEMENT HAD RESULTED IN A DOCUMENTED LOSS
 OF $476.06 TO THE ACTIVITY, THE ARBITRATOR AWARDED THE ACTIVITY
 COMPENSATORY DAMAGES IN THAT AMOUNT.  AS A FURTHER REMEDY, THE
 ARBITRATOR ORDERED THE UNION TO CEASE AND DESIST FROM INTERFERING WITH
 THE SURVEY AND TO POST NOTICES TO THAT EFFECT.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /2/ THE AGENCY FILED AN OPPOSITION.
 
    THE UNION TOOK EIGHT EXCEPTIONS TO THE ARBITRATOR'S AWARD:  (1) THE
 AWARD VIOLATES THE FIRST AMENDMENT RIGHTS OF THE UNION AND OF EMPLOYEES
 IN THE AREA OF FREE SPEECH;  (2) THE AWARD VIOLATES 5 U.S.C. 7116(A)(1)
 AS AN INTERFERENCE IN THE INTERNAL AFFAIRS OF THE UNION;  (3) THE
 ARBITRATOR EXCEEDED HIS AUTHORITY;  (4) THE AWARD IS BASED ON A NONFACT;
  (5) THE ARBITRATOR BASED HIS AWARD ON A MISTAKE OF LAW;  (6) THE
 ARBITRATOR DID NOT DECIDE THE ISSUE BEFORE HIM;  (7) THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE AGREEMENT;  AND (8) THE ARBITRATOR REFUSED TO
 HEAR PERTINENT AND MATERIAL EVIDENCE FROM THE UNION.  THE FIRST SEVEN OF
 THESE EXCEPTIONS AND THE SUPPORTING ARGUMENTS ARE SUBSTANTIALLY
 IDENTICAL TO THE EXCEPTIONS AND SUPPORTING ARGUMENTS FILED BY THE UNION
 TO ARBITRATOR CARAWAY'S AWARD, WHICH ALSO SUSTAINED THE ACTIVITY'S
 GRIEVANCE AND AWARDED COMPENSATORY DAMAGES AGAINST THE UNION AND WHICH,
 AS PREVIOUSLY INDICATED, WAS THE SUBJECT OF THE AUTHORITY'S DECISION IN
 6 FLRA NO. 74(1981) DECIDED THIS DATE.  FOR THE REASONS SET FORTH IN
 THAT DECISION, THE AUTHORITY FINDS THAT THESE SEVEN EXCEPTIONS LIKEWISE
 PROVIDE NO BASIS FOR FINDING THE ARBITRATOR'S AWARD DEFICIENT IN THE
 INSTANT CASE UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS ONLY DIFFERING EXCEPTION, THE UNION CONTENDS THAT THE
 ARBITRATOR IN THIS CASE REFUSED TO HEAR PERTINENT AND MATERIAL EVIDENCE.
  IN SUPPORT OF THIS EXCEPTION, THE UNION NOTES THAT THE ARBITRATOR FOUND
 THAT THE UNION VIOLATED THE AGREEMENT BY NOT MAINTAINING A COOPERATIVE
 RELATIONSHIP.  HOWEVER, THE UNION STATES THAT THE ARBITRATOR REFUSED TO
 ADMIT EVIDENCE CONCERNING A LACK OF COOPERATION BY THE ACTIVITY.  THE
 UNION ARGUES THAT SUCH EVIDENCE WAS PERTINENT BECAUSE ITS ACTIONS WERE
 IN DIRECT RESPONSE TO THAT LACK OF ACTIVITY COOPERATION.
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE ARBITRATOR
 DENIED A PARTY A FAIR HEARING BY REFUSING TO CONSIDER ALL THE PERTINENT
 AND MATERIAL EVIDENCE.  NATIONAL BORDER PATROL COUNCIL AND NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND UNITED STATES
 DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 3 FLRA
 NO. 62(1980).  HOWEVER, THE UNION FAILS TO ESTABLISH IN ITS EXCEPTION
 THAT IT WAS DENIED A FAIR HEARING.  IN PARTICULAR, THE UNION HAS NOT
 DEMONSTRATED THAT THE ARBITRATOR DENIED IT AN ADEQUATE OPPORTUNITY TO
 PRESENT EVIDENCE ON THE MERITS ISSUE BEFORE THE ARBITRATOR OF WHETHER
 THE UNION'S NEWSLETTER VIOLATED THE AGREEMENT.  IT IS NOT APPARENT IN
 WHAT MANNER PROFFERED EVIDENCE CONCERNING A LACK OF COOPERATION BY THE
 ACTIVITY WAS PERTINENT AND MATERIAL TO THE QUESTION BEFORE THE
 ARBITRATOR OF THE PROPRIETY OF THE UNION'S AVOWED PURPOSE OF
 INVALIDATING THE ACTIVITY'S SURVEY.  CONSEQUENTLY, THIS EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  SEE MID-AMERICA
 PROGRAM SERVICE CENTER, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF
 HEALTH, EDUCATION, AND WELFARE AND LOCAL NO. 1336, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, 5 FLRA NO. 34(1981).
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 12, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1981), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.