37:0766(61)AR - - HHS, SSA, Baltimore, MD and AFGE Local 1336 - - 1990 FLRAdec AR - - v37 p766

[ v37 p766 ]
The decision of the Authority follows:

37 FLRA No. 61









LOCAL 1336




September 28, 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 Stanley J. Siegel 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 Union filed a grievance charging the Agency with harassment of the Union president in violation of the collective bargaining agreement and section 7116(a)(1) of the Statute. The Arbitrator denied the grievance. In addition, the Arbitrator ruled that the grievance should have been filed as an employee grievance. Consequently, the Arbitrator denied the Union's request for official time and expenses incurred as a result of the arbitration.

We conclude that the Union has not demonstrated that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background

The grievant is a GS-10 Social Security Claims Examiner at Module 22 of the Department of Health and Human Services' Southeastern Program Service Center, Birmingham, Alabama (SEPCS). Since 1984, the grievant had been the president of the American Federation of Government Employees (AFGE) Local 2206, a full-time position. Award at 2.

On December 30, 1988, the grievant was issued a letter of reprimand. Id. at 3. The reprimand charged the grievant with having failed to obtain appropriate Agency approval as required by the Agency's regulation before assisting her mother with a Social Security claim, and with having improperly used or provided franked envelopes for non-official business. Id. at 8-11.

The Union filed a union-management grievance at the component level on January 23, 1989, under Article 24, section 10 of the parties' agreement. The Union claimed that by issuing the grievant a letter of reprimand, the Agency defamed, restrained, and coerced the Union president, in violation of 5 U.S.C. § 7116(a)(1) and Articles 2, 3, 18, and 23 of the agreement. Exceptions at J-3.

The Agency refused to process the grievance as a union-management grievance, but offered to accept it if the Union refiled the grievance as an employee grievance under Article 24, section 9 at the local level. The Union did not accept that offer and instead brought the grievance in its original form to arbitration. Award at 3.

III. Arbitrator's Award

Absent the parties' agreement, the Arbitrator formulated the following issues:

1. Did the Union improperly file the grievance under Article 24, section 10 of the Agreement?

2. If found to be properly filed as a Union-Management grievance, was it filed at the appropriate level?

3. If the grievance is found to be arbitrable, then was the reprimand of [the grievant] for just cause?

4. Did the Agency violate the parties' Memorandum of Understanding of July 12, 1984 (MOU) by refusing to provide official time for [the] Union representative . . . and by refusing to pay his travel expenses and per diem?

Award at 2.

On the first issue, the Arbitrator ruled that the grievance was personal to the employee and did not stem from her role as Union president. The Arbitrator ruled that the grievance met the definition of an employee grievance described in Article 24, section 2(A) and (C). Id. at 6. The Arbitrator found that the Union's harassment charges were "a defense to the reprimand, and not . . . a separate issue that the Union has brought to the Agency for the discussion called for in section 10." Id. at 7.

On the second and fourth issues, the Arbitrator ruled that because the grievance was an employee grievance, it should have been filed at the local level and that the provisions of the MOU did not apply. Id. at 7, 14. The Arbitrator, therefore, denied the Union's request for official time and expenses. Id. at 14.

On the third issue, the Arbitrator found that the Agency had just cause to reprimand the grievant for failing to obtain prior Agency approval before assisting her relative with Social Security claims. Id. at 7. He found that the Agency did not have just cause for reprimanding the grievant for using franked envelopes for non-official business, and ordered the Agency to expunge the charge from all the grievant's personnel records and to send to the grievant a letter of apology. Id. at 12, 15.

IV. Positions of the Parties

A. First Exception

The Union contends that "[t]he award violates the First Amendment rights of the [employee] and manifests a total disregard of public policy." Exceptions at 2. The Union maintains that the grievant's actions on her mother's behalf were proper under the Agency's Personnel Manual for Supervisors and that any reprimand given to her "had a chilling effect" on her First Amendment right of free speech. Id. at 2-3. Citing Brown v. Brienen, 722 F.2d 360, 365 (7th Cir. 1983), the Union argues that the Agency produced no evidence that it enforced the prior approval rule or "even maintained in any system of records" the approvals that had been given. Id. at 3-4. The Union further argues that no "evidence was introduced that any such prior approval was required by the law or regulations . . . ." Id. at 3.

The Agency responds that the First Amendment issue was not raised before the Arbitrator. Opposition at 2-3. The Agency argues that even if the Arbitrator had considered the issue on his own motion, he would not have found the speech in question to involve a "matter of public concern" requiring "the balancing test set out in Supreme Court[] decisions . . . ." Id. at 4. In the alternative, the Agency argues that its prior approval rule would withstand strict scrutiny because it "is a narrowly tailored means of accomplishing [the Agency's] legitimate objective." Id.

B. Second Exception

The Union asserts "[t]he award evidences a manifest disregard of the agreement and violates law, rules and regulations." Exceptions at 4. Specifically, the Union argues that the Arbitrator's finding that the grievance was improperly filed as a union-management grievance and his denial of the Union's request for official time and expenses "cannot in any rational way be derived from the clear language of the National Agreement . . . and the MOU . . . ." Id. at 5. The Union contends that the definition of grievance under Article 24, section 2(B) of the agreement includes "any complaint . . . by the Union," and that section 10 permits the Union to "opt to submit grievances" at the Union's own choice at any level. Id. at 4.

The Union also asserts that the Arbitrator engaged in misconduct. The Union argues that the Arbitrator's denial of the Union's request for a postponement of the hearing, a request made because of the Agency's denial of official time and expenses to the Union representative, and his failure to rule on the applicability of the MOU directly at the hearing were evidence of such misconduct. Id. at 5. The Union argues that the Arbitrator's denial of its claim for official time, travel, and per diem expenses could not be derived from the clear language of the agreement and the MOU. Id. Additionally, the Union argues that the award is inapposite to the Authority's holdings on section 7131(d) of the Statute and "in contravention" of Comptroller General decisions interpreting the National Agreement. Id. at 7.

According to the Agency, the Union's second exception is "nothing more than disagreement with the Arbitrator's ultimate decision . . . ." Opposition at 4.

C. Third Exception

The Union asserts that the Arbitrator committed gross error when he did not consider the violation of 5 U.S.C. § 7116(a)(1). Id. at 7. The Union claims that the Arbitrator committed an error of law for two reasons. According to the Union, the Arbitrator characterized the charges of harassment "as a defense to the reprimand, not as a separate issue that the Union [had] brought to the Agency for the discussion called for in section 10[]" and he refused to rule on the evidence of harassment under section 7116(a)(1). Id. at 7-8.

The Agency claims that the Union's third exception constitutes "nothing more than disagreement with the [A]rbitrator's decision and [an] attempt[] to relitigate the issue." Opposition at 5.

V. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the Arbitrator's award deficient.

A. The Union Has Not Demonstrated That a Constitutional First Amendment Right Has Been Violated

The constitutional claim that the Agency's prior approval rule violates the employee's First Amendment right of free speech is raised for the first time in the Union's exceptions. This claim is properly before the Authority under section 7122(a)(1) of the Statute which requires the Authority to review arbitrators' awards to ascertain whether they are contrary to any law, rule, or regulation. Of course, any law includes the U.S. Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77 (1803) (finding that the Constitution is a paramount law). See Panama Canal Commission and International Organization of Masters, Mates and Pilots Marine Division ILA, AFL-CIO, Panama Canal Pilots Branch, 33 FLRA 15 (1988) (Panama Canal).

The Union's constitutional claim involves the First Amendment rights of a public employee. The applicable constitutional test concerning such rights is set out in Connick v. Myers, 461 U.S. 138 (1983). See Panama Canal, 33 FLRA at 22, citing Rankin v. McPherson, 107 S. Ct. 2891 (1987) which applies Connick. The threshold constitutional question is whether the grievant's speech is of public or personal concern. Connick at 146.

In its exceptions, the Union has identified neither the statements in question nor the nature of the speech which it considers to be protected. Even assuming that the Union intends the alleged protected speech to encompass those statements made by the grievant when she accompanied her mother to the Social Security Administration District Office, when she made telephone calls, and when she submitted applicable claims forms, these cannot be considered to be statements of public concern. They were statements of purely personal interests about the grievant's own financial status and her mother's benefit entitlements. As such, they do not warrant protected status under the First Amendment and Connick would not apply.

Only if it is determined that the speech is of public concern, and thus constitutionally protected, does Connick require the application of a balancing test. Under this test, the employee's right to protected speech and the employer's right to pursue legitimate management objectives are weighed. Id. at 142. Because the speech in question involves purely personal concerns, we will not apply the Connick balancing test to determine whether the Agency's prior approval rule justifies the restrictions on the grievant's speech. Inasmuch as the Arbitrator did not incorrectly determine that the employee's speech was protected under the Constitution, we find that the Union has not shown that the award is deficient on this basis.

B. The Union Has Not Demonstrated That the Award Does Not Draw Its Essence From the Parties' Agreement or That It Violates Law, Rule, or Regulation

In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).

The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator was presented with two provisions of the agreement