27:0028(6)AR - SSA, New York Regional Office and AFGE Local 3369 -- 1987 FLRAdec AR

[ v27 p28 ]
The decision of the Authority follows:

 27 FLRA No. 6
                                            Case No. 0-AR-1258
                         I.  Statement of the Case
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert T. Simmelkjaer filed by the Union under section
 7122(a) of the Federal Service Labor-Management Relations Statute (the
 Statute) and part 2425 of the Authority's Rules and Regulations.
                  II.  Background and Arbitrator's award
    The grievance in this case concerned the distribution of a Union
 bulletin entitled "Woodcox Guilty of Fourth Unfair Labor Practice." and
 the interpretation of the following contract provision:
                        Article 12, Communications
          Section 2 -- Distribution of Union Publications
          A.  Official publications of the Union may be distributed on
       SSA property by union representatives during the non-duty time of
       the union representatives who are distributing and the employees
       receiving the materials.  Distribution shall not disrupt
       operations.  All such materials shall be properly identified as
       official union issuances.  Materials distributed will not malign
       the character of any Federal employee.
    The Agency contended before the Arbitrator that the Union violated
 Article 12, Section 2A when it distributed the bulletin because it
 contained false material which maligned the character of Jefferson
 Woodcox, the Agency's District Manager.  The Union maintained, in
 essence, that Article 12, Section 2A had been unfairly imposed by the
 Agency during negotiations and that the provision violates the
 constitutional and statutory rights of Union officials and unit
 employees regarding the distribution and receipt of Union material.
    The Arbitrator determined that his role in this case was limited to
 the interpretation of specific contract language.  He held that the
 distribution of the bulletin by Union agents violated Article 12,
 Section 2A because it maligned the character of Woodcox.  The Arbitrator
 found that the newsletter contained information that was "false,
 inaccurate, and a misrepresentation of the facts." Arbitrator's Decision
 at 14.  He stated that each of the unfair labor practice charges
 referred to in the newsletter had been settled informally by the parties
 before the date of the newsletter.  He rejected the Union's argument
 that the bulletin did not intend to convey to employees that Woodcox had
 been "adjudicated" guilty of four unfair labor practices.  He found that
 the headline, reinforced by the text of the bulletin, showed that "these
 miscrepresentations were designed to malign and defame Mr. Woodcox(,)
 with whom the Union has had ongoing disputes." Arbitrator's Decision at
    The Arbitrator also determined that the wording in Section 2 was
 mutually accepted by the parties as a limitation on Union freedom of
 expression;  and that the Union agreed to the language as a "reasonable
 trade-off" for receiving bulletin board space and use of the Agency's
 facilities to distribute Union materials.  Arbitrator's Decision at 18.
 As to the Union's argument that the Arbitrator should deny enforcement
 of the disputed portions of Article 12, Section 2A, the Arbitrator held
 that he was now empowered to declare null and void a provision of a
 negotiated agreement which was mutually agreed to by the parties, unless
 the Union had entered into the agreement under duress.  He found that
 the Union had not entered into the agreement under duress, and he
 concluded that Article 12, Section 2A of the agreement did not infringe
 upon the Union's constitutional guarantees, its statutory rights or
 public policy.
    Accordingly, the Arbitrator found that the Union violated Article 12,
 Section 2A.  The Arbitrator ordered the Union to (1) cease and desist
 from distributing on Agency property publications which violate Article
 12, Section 2A of the National Agreement, and (2) prepare and post a
 retraction of the material which maligned Woodcox.
                              III.  Exception
    The Union contends that the Arbitrator's award fails to draw its
 essence from the parties' agreement.  In support of this contention, the
 Union argues that the award evidences a manifest disregard of the law
 because it is contrary to Federal Labor law and is inconsistent with
 public policy.  The Union further argues that the award contravenes the
 express terms of the collective bargaining agreement and is ambiguous.
    The Agency did not file an opposition to the Union's exceptions.
                               IV.  Analysis
    In order for an award to be found deficient as failing to draw its
 essence from the parties' agreement, the party making the allegation
 must demonstrate that the award (1) cannot in any rational way be
 derived from the agreement;  (2) is so unfounded in reason and fact, or
 so unconnected to the wording and purpose of the agreement, as to
 manifest an infidelity to the obligation of the arbitrator;  (3)
 evidences a manifest disregard for the agreement;  or (4) does not
 represent a plausible interpretation of the agreement.  General Services
 Administration, Region 8 and American Federation of Government
 Employees, AFL-CIO, Council 236, 21 FLRA No. 54 (1986) slip op. at 2.
    We find that the Union has failed to demonstrate that the
 Arbitrator's award does not draw its essence from the parties' agreement
 under any of the tests described above.  The Arbitrator found that
 Article 12, Section 2A requires that materials distributed by Union
 representatives on Agency property not malign the character of any
 Federal employee.  He determined that the Union had voluntarily agreed
 to the provision and that he was not empowered to declare it null and
 void where there was mutual agreement between the parties.  The
 Arbitrator concluded that the Union violated that provision by
 distributing the bulletin containing false and misleading information
 which maligned Woodcox.  The Union's exception merely constitutes
 disagreement with the Arbitrator's interpretation of the parties'
 agreement and his assessment of the facts in this case.  The exception
 therefore does not provide a basis for finding the award deficient.
 See, for example, Veterans Administration Regional Office, Denver,
 Colorado and American Federation of Government Employees, AFL-CIO, Local
 Union 1557, 25 FLRA No. 93 (1987).
    We also reject the Union's assertion that the award contravenes the
 express terms of the collective bargaining agreement.  The Arbitrator's
 award resolved a grievance submitted to him by the parties in accordance
 with their negotiated grievance procedure.  In resolving the grievance
 on the basis of the evidence, the Arbitrator determined that the Union's
 action was contrary to the agreement and that the agreement did not
 infringe on the constitutional guarantees or on the Federal rights of