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

 7 FLRA No. 84
 
 SAN ANTONIO AIR FORCE
 LOGISTICS CENTER, KELLY
 AIR FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1617
 Union
 
                                            Case No. O-AR-108
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR A. A. WHITE FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/ AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425).
 THE AGENCY FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS DISPUTE AROSE WHEN THE
 UNION SUBMITTED TO THE ACTIVITY A LIST OF STEWARDS WHICH IT HAD
 APPOINTED TO REPRESENT EMPLOYEES IN VARIOUS AREAS OF THE ORGANIZATION.
 FIFTY-EIGHT, OR APPROXIMATELY ONE-THIRD, OF THE STEWARDS APPOINTED WERE
 ASSIGNED TO REPRESENT AREAS OUTSIDE THEIR OWN RESPECTIVE WORK AREAS.
 THERE WAS NO EXPLANATION FOR THE ASSIGNMENTS.  THE ACTIVITY STRUCK THE
 FIFTY-EIGHT NAMES FROM THE LIST OF STEWARDS AND RETURNED THE LIST TO THE
 UNION WITH A LETTER STATING THAT THE NAMES WERE STRICKEN BECAUSE THE
 DESIGNEES DID NOT WORK IN THE AREAS THEY WERE ASSIGNED TO REPRESENT AS
 REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES THAT
 "NORMALLY" STEWARDS WILL BE DRAWN FROM THEIR OWN WORK AREAS.  /2/ THE
 UNION FILED A GRIEVANCE CONCERNING THE ACTIVITY'S REFUSAL TO RECOGNIZE
 THE UNION'S APPOINTED REPRESENTATIVES AND FOR WHAT IT VIEWED AS
 MANAGEMENT INTERFERENCE IN THE INTERNAL AFFAIRS OF THE UNION.
 
    THE ARBITRATOR FIRST STATED THAT HAD THE UNION WISHED TO KEEP THE
 APPOINTMENT OF ITS STEWARDS AS A PURELY INTERNAL MATTER, IT SHOULD NEVER
 HAVE NEGOTIATED ABOUT IT, AND SHOULD NEVER HAVE INCLUDED A TERM OF
 LIMITATION ON THE PROCESS IN THE MUTUALLY AGREED UPON CONTRACT.
 THEREFORE, HE FOUND THAT WHEN THE ACTIVITY OBJECTED TO THE APPOINTMENT
 OF THE 58 STEWARDS AS NOT BEING "NORMALLY" SELECTED FROM THEIR WORK
 AREAS, IT WAS NOT INTERFERING WITH THE UNION'S ULTIMATE RIGHT TO SELECT
 STEWARDS, BUT ONLY WAS REQUESTING THE UNION TO RESPECT THE LIMITATION
 WHICH HAD BEEN MUTUALLY NEGOTIATED.  ALTHOUGH THE ARBITRATOR OBSERVED
 THAT THE ACTIVITY'S STRIKING OF THE 58 NAMES AND RETURNING THE LIST TO
 THE UNION WAS NOT NECESSARILY "THE PREFERABLE THING TO HAVE DONE," HE
 FOUND THAT THE UNION COMMITTED WHAT "APPEARED TO BE" A VIOLATION OF THE
 AGREEMENT BY SUBMITTING THE LIST WITH THE 58 "UNEXPLAINED VARIANCES."
 THEREFORE, HE FOUND THAT THE UNION'S GRIEVANCE RAISED THE SAME ISSUES
 THAT WOULD HAVE BEEN RAISED HAD THE ACTIVITY INITIALLY FILED A GRIEVANCE
 RATHER THAN DISREGARDING THE APPOINTMENTS.
 
    HOWEVER, HE FURTHER DETERMINED THAT THE RECORD CONTAINED INSUFFICIENT
 INFORMATION UPON WHICH TO FIND THAT THE UNION VIOLATED THE AGREEMENT BY
 SUBMITTING THE QUESTIONED LIST.  HE THEREFORE RETURNED THE CASE TO THE
 PARTIES WITH THE FOLLOWING AWARD:
 
    SECTION 4.02 DOES PUT AN EMPLOYER INVOKABLE LIMITATION ON THE FREEDOM
 OF UNION TO APPOINT
 
    STEWARDS;  EMPLOYER HAS JUSTIFIABLY AND ACCEPTABLY RAISED AN ISSUE OF
 THAT LIMITATION HERE, AND
 
    IF UNION WHOLLY FAILS TO PRESENT JUSTIFICATION FOR ITS APPARENT
 VIOLATION OF THE
 
    "NORMALLY" LIMITATION, IT IS HEREBY FOUND TO BE IN VIOLATION AND
 EMPLOYER WOULD NOT HAVE TO
 
    RECOGNIZE THE STEWARDS WHOSE APPOINTMENTS CONSTITUTED THE VIOLATION.
 IF UNION SUBMITS
 
    JUSTIFICATION, THE PARTIES IN GOOD FAITH SHOULD SEEK A NEGOTIATED
 SOLUTION UNDER THE
 
    "NORMALLY" REQUIREMENT.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD VIOLATES
 SECTION 7116(A)(1) OF THE STATUTE /3/ AS AN INTERFERENCE IN THE INTERNAL
 AFFAIRS OF THE UNION.  IN SUPPORT OF ITS EXCEPTION THE UNION ALLEGES
 THAT THE AWARD VIOLATES THE UNION'S RIGHT TO PROVIDE UNION
 REPRESENTATION TO THE UNIT BY MAKING THE DESIGNATION OF UNION
 REPRESENTATIVES SUBJECT TO THE APPROVAL OF THE ACTIVITY AND THAT THE
 AWARD RESTRAINS EMPLOYEES FROM ACTING AS UNION REPRESENTATIVES.
 
    THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE ARBITRATOR'S AWARD DOES NOTHING MORE THAN INTERPRET A
 MUTUALLY AGREED UPON PROVISION IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  THE ARBITRATOR FOUND THAT WHILE THE ACTIVITY DID NOT HAVE,
 AND WAS NOT ASSERTING, A RIGHT TO SELECT UNION STEWARDS, IT DID HAVE A
 RIGHT TO QUESTION WHETHER CERTAIN PROVISIONS OF THE AGREEMENT HAD BEEN
 COMPLIED WITH WHEN 58 OUT OF APPROXIMATELY 170 STEWARDS HAD BEEN
 SELECTED FROM OUTSIDE THEIR WORK AREAS.  THUS HE DETERMINED THAT BY
 AGREEING TO "NORMALLY" SELECT STEWARDS TO REPRESENT A PARTICULAR AREA
 FROM WITHIN THAT AREA, THE UNION HAD COMMITTED AN "APPARENT" BREACH OF
 THE AGREEMENT IN THE CIRCUMSTANCES OF THIS CASE AND DIRECTED THE UNION
 TO PROVIDE AN EXPLANATION FOR ITS ACTIONS.  SUCH AN AWARD, INTERPRETING
 THE AGREEMENT AND DIRECTING THE ACTION ORDERED IN THIS CASE, IS NOT
 CONTRARY TO THE STATUTE.  /4/ THEREFORE THE UNION'S FIRST EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION ALLEGES THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT.  IN SUPPORT OF THIS
 EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR WAS INCORRECT IN HIS
 FINDING THAT THE AGREEMENT IMPOSES A REQUIREMENT ON THE UNION TO PROVIDE
 JUSTIFICATION TO MANAGEMENT WHEN THE UNION SELECTS STEWARDS TO REPRESENT
 AREAS OTHER THAN THEIR OWN WORK AREAS.
 
    THE UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IN THIS CASE DOES
 NOT DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  THE
 ARBITRATOR'S AWARD DEALS SPECIFICALLY WITH THE TERMS OF THE NEGOTIATED
 AGREEMENT AND WITH THE APPLICATION OF THOSE TERMS TO THE FACTS IN THE
 CASE.  THE ARBITRATOR FOUND THAT BY THE EXPRESS TERMS OF THE AGREEMENT
 THE UNION HAD COMMITTED ITSELF TO OBSERVING CERTAIN LIMITATIONS IN THE
 SELECTION OF STEWARDS, I.E., THAT STEWARDS "NORMALLY" WILL REPRESENT
 THEIR OWN WORK AREAS, AND THAT THE UNION HAD MADE STEWARD SELECTIONS
 WHICH APPEARED TO VIOLATE THOSE LIMITATIONS.  THE UNION'S EXCEPTION
 CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S
 INTERPRETATION AND APPLICATION OF THE AGREEMENT PROVISION BEFORE HIM AND
 CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  E.G.,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 148, COUNCIL OF
 PRISON LOCALS AND BUREAU OF PRISONS, U.S. PENITENTIARY, LEWISBURG,
 PENNSYLVANIA, 7 FLRA NO. 14(1981).
 
    THE UNION ALSO ALLEGES AS PART OF ITS SECOND EXCEPTION THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY RULING ON ISSUES NOT PROPERLY
 BEFORE HIM.  HOWEVER, THE UNION'S ARGUMENTS IN SUPPORT OF THIS EXCEPTION
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.  THE UNION HAS NOT
 ESTABLISHED HOW THE ARBITRATOR IN ANY MANNER EXCEEDED HIS AUTHORITY.
 THERE IS NO INDICATION OF A JOINT STIPULATION OF THE ISSUES BEING
 SUBMITTED TO THE ARBITRATOR IN THIS CASE AND THE ARBITRATOR'S AWARD IS
 DIRECTLY RESPONSIVE TO, AS WELL AS CONFINED TO, THE ISSUES AS HE FRAMED
 THEM.  /5/
 
    AS A FINAL EXCEPTION, THE UNION HAS ALLEGED THAT THE ARBITRATOR'S
 FINDING THAT THE UNION NEGOTIATED OVER THE APPOINTMENT OF STEWARDS IS A
 GROSS MISTAKE OF FACT.  IN SUPPORT OF THIS EXCEPTION, THE UNION REFERS
 TO THE UNFAIR LABOR PRACTICE CHARGE FILED IN THE WRIGHT-PATTERSON CASE,
 /6/ AND TO AN ARBITRATION AWARD IN A SIMILAR CASE.
 
    WHILE THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD DEFICIENT WHEN IT
 IS DEMONSTRATED THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
 ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
 DIFFERENT RESULT WOULD HAVE BEEN REACHED, UNITED STATES ARMY MISSILE
 MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980), THE
 UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IN THIS CASE IS DEFICIENT
 ON THIS GROUND.  THE ARBITRATOR FOUND THAT THE LANGUAGE OF SECTION 4.02
 OF THE AGREEMENT IMPOSED A MUTUALLY AGREED UPON LIMITATION ON THE
 UNION'S RIGHT TO APPOINT STEWARDS AND BASED HIS AWARD ON THAT FINDING.
 THE UNFAIR LABOR PRACTICE COMPLAINT RELIED UPON BY THE UNION PROVIDES NO
 BASIS FINDING THIS AWARD DEFICIENT.  SIMILARLY, THE UNION'S CONTENTION
 THAT AN ARBITRATOR'S AWARD IN ANOTHER CASE SHOULD DETERMINE THE OUTCOME
 OF THE INSTANT CASE DOES NOT CONSTITUTE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923,
 AFL-CIO AND SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS AND
 OFFICES, 4 FLRA NO. 19 (1980).
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 4, 1982
 
                       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/ ACCORDING TO THE ARBITRATOR THE RELEVANT AGREEMENT PROVISION
 PROVIDES:
 
    SECTION 4.02:  DESIGNATION AND RECOGNITION OF STEWARDS THE UNION
 AGREES TO DESIGNATE ELECTED OFFICERS OR STEWARDS TO PERFORM
 REPRESENTATION FUNCTIONS IN THE MAJOR STAFF OFFICES, DIRECTORATES,
 DIVISIONS, AND OTHER APPROPRIATE ORGANIZATIONAL SUBDIVISIONS.  THE UNION
 AGREES TO FURNISH THE LRO AT EACH AFLC ACTIVITY, AND UPDATE ON AT LEAST
 A QUARTERLY BASIS, THE LIST OF THESE REPRESENTATIVES, ALONG WITH
 ORGANIZATIONAL SYMBOLS, DESIGNATED AREA OF REPRESENTATION AND WORK
 STATION IF APPROPRIATE, AND BASE TELEPHONE EXTENSION(S).  NORMALLY,
 STEWARDS APPOINTED TO REPRESENT AN AREA WILL BE DRAWN FROM EMPLOYEES IN
 THAT ORGANIZATION (E.G., THE MAINTENANCE DIRECTORATE STEWARD SHOULD BE A
 MAINTENANCE EMPLOYEE).
 
    /3/ 5 U.S.C. 7116(A)(1) PROVIDES:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER(.)
 
    /4/ CF., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
 U.S. AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO, 4 FLRA NO.  39(1980) (WHEREIN THE AUTHORITY DISMISSED AN
 UNFAIR LABOR PRACTICE COMPLAINT FILED BY AN ACTIVITY AGAINST A UNION FOR
 REFUSING TO NEGOTIATE OVER AN ACTIVITY PROPOSAL WHICH WOULD HAVE
 REQUIRED THE UNION TO SELECT EACH OF ITS STEWARDS ONLY FROM AMONG
 EMPLOYEES LOCATED IN THE ORGANIZATIONAL SEGMENT THE STEWARD WOULD
 REPRESENT.  THE AUTHORITY HELD THAT THE PROPOSAL WAS OUTSIDE THE
 OBLIGATION TO BARGAIN SINCE THE PROPOSAL WOULD INFRINGE UPON THE UNION'S
 PREROGATIVE TO DESIGNATE ITS OWN REPRESENTATIVES FOR CERTAIN
 REPRESENTATIONAL FUNCTIONS.  HOWEVER, THE AUTHORITY ADDED:  "THIS IS NOT
 TO SAY, HOWEVER, THAT A UNION MAY NOT, IF IT SO ELECTS, BARGAIN OVER
 SUCH MATTERS.  INDEED, THERE IS MERIT TO FORMALIZING THE BARGAINING
 RELATIONSHIP TO THE EXTENT THAT IT WOULD LEAD TO STABILITY AT THE
 WORKPLACE(.)")
 
    /5/ SECTION 7.06(A) OF ARTICLE 7 OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT, SUBMITTED BY THE UNION AS PART OF ITS EXCEPTION,
 PROVIDES IN PART:
 
    IF THE PARTIES FAIL TO AGREE ON A JOINT STIPULATION OF THE ISSUE FOR
 ARBITRATION, . . . THE
 
    ARBITRATOR SHALL DETERMINE THE ISSUE OR ISSUES TO BE HEARD.
 
    /6/ NOTE 4,SUPRA.