35:1175(132)AR - - DOD, Defense Mapping Agency, Hydrographic/Topographic Center and AFGE Local 3407 - - 1990 FLRAdec AR - - v35 p1175

[ v35 p1175 ]
The decision of the Authority follows:

35 FLRA No 132









LOCAL 3407,




May 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James T. Youngblood 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. The Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained a grievance filed by the Agency over the alleged failure of Union stewards to obtain permission to meet with employees during work hours. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient because the Arbitrator exceeded his authority or was biased, or because the award is based on nonfacts. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Two Union stewards who are employees at the Agency's main headquarters in Brookmont, Maryland, went to an office maintained by the Agency in Riverdale, Maryland to meet with employees. The Agency filed a grievance alleging that the stewards' visit violated Article VI, Section 4 of the parties' collective bargaining agreement, which provides:

When a steward, officer or bargaining unit member enters an area other than that supervised by his/her own first level supervisor to conduct appropriate business, the individual will contact the supervisor of the area entered, advise him/her of his/her presence and the name of the employee(s) to be contacted, and the approximate amount of time necessary to conduct the business. If the employee(s) to be contacted can be spared from his/her duties, the supervisor will make the necessary arrangements for the Union representative to contact the employee. After completion of the appropriate business, the steward and the employee(s) contacted will advise their respective supervisors.

Award at 2.

The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues before him as follows:

1. Whether the Employer granted the Union thirty minutes official time to conduct a meeting.

2. Whether the Employer granted the Union permission to meet with more than two named employees.

Id. at 5.

As is relevant to this case, the Arbitrator found that the Union violated Article VI, Section 4 of the parties' collective bargaining agreement because the stewards "entered an area controlled by a supervisor and conducted a union meeting with employees without first obtaining permission from the supervisor." Id. at 7. The Arbitrator credited the Agency's witnesses and concluded that the supervisor in charge had only given the stewards permission to meet with two employees during their lunch period. Id. The Arbitrator concluded that because the stewards "met with five employees for approximately 45 minutes and the employees thereafter took their lunch hour the union meeting [was] outside the scope of the permission granted by the supervisor." Id.

The Arbitrator ordered the Union to post a notice acknowledging its violation of the parties' contract. Id. at 8. The Arbitrator also ordered that the stewards and the employees who attended the meeting "be offered the alternative to use annual leave or be placed in a non-pay status" for the time they attended the Union meeting. Id.

III. First Exception

A. Positions of the Parties

The Union maintains that the Arbitrator exceeded his authority by resolving an issue that was not addressed by the Agency during the arbitration hearing. The Union asserts that the grievance charged the stewards "with entering a work area, and meeting in that work area with unit employees, without first obtaining permission from the appropriate supervisor." Exceptions at 1. The Union contends that the question as to "the time spent by unit employees and Union stewards in a meeting" was not raised by the Agency prior to the hearing. Id.

The Union contends that the Arbitrator also exceeded his authority because statements in the posting required by the Arbitrator "go beyond any facts developed in the hearing." Id. at 2. The Union asserts that the only "work areas" entered by the stewards were hallways and an employee break area. Id. The Union maintains that nothing in the parties' collective bargaining agreement requires "[U]nion officials to obtain management permission to meet with unit employees outside the work area during their lunch time." Id. at 3 (emphasis in original).

Finally, the Union asserts that the Arbitrator exceeded his authority because "[t]he burden of proof was incorrectly applied" by the Arbitrator. According to the Union, despite the fact that the Agency was the grieving party in this case, the Arbitrator "ignored conflicting testimony by management and management witnesses which should have cast the