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51:1709(144)AR - - AFGE, Local 4042 & DOD, Army Air Force Exchange Service, Waco Distribution Center, Waco, TX - - 1996 FLRAdec AR - - v51 p1709

[ v51 p1709 ]
The decision of the Authority follows:

51 FLRA No. 144





LOCAL 4042











July 31, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Harold H. Leeper 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 Regulations. The Agency filed an opposition to the Union's exceptions.

As relevant to this case, the Arbitrator found that the Union violated the parties' collective bargaining agreement and an Agency regulation by posting an anonymous message on its bulletin board and repeatedly refusing to remove it.

We conclude that the Union fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union president posted on the Union bulletin board (made available to the Union by the Agency pursuant to the parties' collective bargaining agreement) an anonymous message expressing the dissatisfaction of a group of unit employees with certain working conditions. When the Union refused to remove the message from the bulletin board, the Agency filed a grievance.

The Arbitrator first ruled that the grievance was arbitrable. He rejected the Union's argument that the grievance was premature because the Agency filed it before the parties at the national level had an opportunity to adequately discuss and resolve the issue. The Arbitrator concluded that the parties' collective bargaining agreement did not support the Union's argument.

As relevant to this case, the Arbitrator determined that the Union president's posting of the anonymous message on the Union bulletin board and her repeated refusal to remove it were "unprofessional and irresponsible" and violated various provisions of the parties' collective bargaining agreement,(2) and Agency regulation ESM 15-4.(3) Award at 16. He found that the actions of the Union president in posting the message were "palpably absurd and wholly irresponsible" and her refusal to respond to management's concerns over the posting were "inexcusable." Id. The Arbitrator also rejected the Union's argument that management's actions violated the First Amendment. Relying on the Authority's decision in San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees (AFL-CIO), Local 1617, San Antonio, Texas, 6 FLRA 412 (1981), the Arbitrator ruled that the Union's actions "were not 'free speech' as that right is protected by the Constitution of the United States." Award at 19.

As a remedy, the Arbitrator ordered the Union to post a notice on the Union bulletin board for 30 days notifying the bargaining unit of "the error of its actions" and apologizing to management for its conduct in posting the message and repeatedly refusing to remove it. Id. In addition, the Arbitrator ordered the Union to reimburse the Agency for the following costs incurred as a consequence of the Union's improper actions: (1) personnel and administrative costs incurred in attempting to resolve the disputed posting; (2) one half of the Arbitrator's fees and expenses for the second day of the arbitration hearing; and (3) the expenses of two Agency representatives for the second day of hearing. The Arbitrator found that the delays of the Union and the "disorganized and unprofessional manner" in which the Union presented its case caused the hearing to be unnecessarily extended for a second day. Id. at 7.

III. Exceptions

A. Union's Contentions

The Union contends, first, that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. The Union argues that the Arbitrator did not base the award on the clear language of the agreement pertaining to what matters may be posted on bulletin boards. The Union also argues that in finding the grievance arbitrable, the Arbitrator ignored the agreement provisions on resolving disputes over bulletin board postings.

Second, the Union claims that the award of damages is deficient because it is based on a nonfact. The Union argues that, contrary to the Arbitrator's finding that the second day of hearing was caused by the Union, it was the Arbitrator who requested the second day of hearing. The Union asserts that although it agreed to the additional day, it was prepared to continue into the evening.

Third, the Union contends that the award is deficient because the Arbitrator was biased. The Union argues that the Arbitrator's opinion accompanying his award exhibits an obvious management bias because the Arbitrator reprimanded Union officials for conduct that was an attempt to correctly administer the collective bargaining agreement. The Union asserts that the Arbitrator's award of damages to the Agency, and his fee charges for a week of study and opinion preparation when there is no indication of legal research, also evidence his bias.

Finally, the Union contends that the award is deficient because it is contrary to the First Amendment of the Constitution.

B. Agency's Opposition

The Agency contends that the Union's exceptions should be denied because the Union fails to establish that the award is deficient.

IV. Analysis and Conclusions

A. The Award Does Not Fail to Draw Its Essence From the Parties' Collective Bargaining Agreement

Article 10, Section 2a of the collective bargaining agreement allows the Union to use bulletin board space to disseminate "general interest information." In claiming that the Union violated this provision, the Agency argued that the posted message was not of general interest because it was addressed to one supervisor and not to any employee group. The Arbitrator's determination that the Union violated Article 6, Section 2a evidences the Arbitrator's agreement that the message was not of general interest. The Union has not established that the Arbitrator's interpretation or application of the agreement fails to draw its essence from the collective bargaining agreement because it disregards the agreement or is unfounded, irrational, or implausible. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). Accordingly, we deny the Union's exception.

B. The Arbitrator's Arbitrability Determination Is Not Deficient

By arguing that the Arbitrator ignored the agreement when he ruled that the grievance was arbitrable and not premature, the Union is challenging the Arbitrator's determination of procedural arbitrability. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 588, 592 (1992) (arbitrator's determination that the grievance was untimely and would not have been premature if filed earlier constituted a determination of procedural arbitrability). An arbitrator's determination of the procedural arbitrability of a grievance is not subject to challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such determination can be found deficient only on grounds that do not directly challenge the determination of procedural arbitrability itself. Id. at 186. The Union's contention that the arbitrator's determination is not based on the clear language of the agreement directly challenges the Arbitrator's procedural arbitrability determination and provides no basis for finding the award deficient. Accordingly, we deny the Union's exception.

C. The Award Is Not Based on a Nonfact

To demonstrate that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry AFB). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996). The Arbitrator, for the reasons set forth in his opinion, found that the Union caused the hearing to be unnecessarily extended for a second day. The Union fails to demonstrate that this finding is clearly erroneous. Accordingly, we deny the Union's exception.

D. The Arbitrator Was Not Biased

The Authority will find an arbitration award deficient when the appealing party establishes that there was bias, partiality, or corruption on the part of the arbitrator. To establish that an award is deficient on this ground, the appealing party must demonstrate one of the following: (1) the award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator engaged in misconduct that prejudiced the rights of the appealing party. E.g., Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981).

In applying this ground, the Authority has examined the approach of Federal courts in reviewing awards in the private sector. In National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 233 (1991), the Authority noted that when a claim of partiality is made, Federal courts require the appealing party to prove specific facts establishing improper motives; the courts ascertain from such record as is available whether the arbitrator's conduct was so biased and prejudiced as to destroy fundamental fairness. Federal courts will find bias or evident partiality when: (1) a reasonable person would conclude that the arbitrator was partial; (2) the circumstances are powerfully suggestive of bias; or (3) the evidence of impropriety is direct, definite, and capable of demonstration. 39 FLRA at 233-34.

The specific facts and evidence presented by the Union to support its exception fail to provide a basis for finding that the Arbitrator was biased. Specifically, the Arbitrator's award of damages and his requested fee do not establish that the Arbitrator was biased or partial under any of the tests applied by the Authority or the Federal courts in private sector labor cases. Although the Arbitrator's findings and the language in his opinion characterizing the Union's actions are sharply critical of the Union, such forcefulness, alone, also fails to establish that the Arbitrator was biased or partial. Nevertheless, we do not condone the Arbitrator's intemperate language, examples of which are quoted above in Section II, and we note our concern that actions by a participant in a procedure under the Statute that serve to exacerbate tensions between the parties do not contribute to the amicable resolution of disputes, which is one of the central purposes of the Statute.(4)

Because the Union has not demonstrated any impropriety by the Arbitrator that destroyed the fundamental fairness of the arbitration proceedings, we deny the Union's exception.

E. The Award Is Not Contrary to the Constitution

We review the Union's exception that the award is contrary to law--the First Amendment--de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). We conclude that the award is not contrary to the First Amendment.

1. The First Amendment Does Not Apply Because of a Lack of State Action

For the First Amendment to apply in this case, the alleged infringement of First Amendment rights must be "fairly attributable to the State." Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). In determining whether there is state action, the focus is on whether the alleged unconstitutional action "could in any way be ascribed to a governmental" action. Id. at 938.

Where an alleged unconstitutional infringement resulted from the actions of a private party, courts find state action when: (1) a private party performs a traditional public function; (2) there is a symbiotic relationship between the private actor and the state; (3) the involvement of the state aggravates in some unique way the unlawful conduct; or (4) the state compels or encourages the unconstitutional action. Sherman v. Community Consolidated School District, 8 F.3d 1160, 1168-69 (7th Cir. 1993), cert. denied, 114 S. Ct. 2109 (1994) (Sherman).

The public function test for state action covers private actors performing functions "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). The symbiotic relationship test is limited to situations where the state and the private actor are significantly involved with one another. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The third test is exemplified by Shelley v. Kraemer, 334 U.S. 1 (1948) where a court enforced a racially discriminatory, restrictive covenant, which was the means by which the racial discrimination was achieved. Under the fourth, or state compulsion, test, the private actor must have been sufficiently coerced or encouraged by the state to implicate the state in the disputed action. E.g., San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522, 546 (1987). Mere approval of, or acquiescence in, the actions of a private party is not sufficient to justify holding the state responsible for those actions under the Constitution. Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982).

The only express action taken by the Agency in this case was the filing of a grievance. The Union does not address how the award is attributable to the Agency or the Federal Government and the requisite state action, under any of the four tests, is not otherwise evident. First, there is no basis for concluding that the Arbitrator was performing a traditional governmental function. We note that very few functions traditionally performed by governments have been "'exclusively reserved to the State.'" Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 161 (1978) (the settlement of disputes between debtors and creditors is not traditionally an exclusive public function). In particular, the Statute's provision for dispute resolution has not delegated to arbitrators an exclusive prerogative of the sovereign. Cf. Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 596 (7th Cir. 1986) (private arbitrator who resolved a grievance over a public employer's discharge of a public employee was not a state actor for purposes of 42 U.S.C. § 1983). Second, no symbiotic relationship between the Agency and the Arbitrator is evident.

With regard to third test set forth above, there is no basis for concluding that the Agency or Federal Government aggravated in some unique way the unconstitutional conduct, as did the court in Shelley v. Kraemer. Unlike the court in Shelley v. Kraemer, neither the Agency nor the Federal Government was the means by which the alleged unconstitutional conduct was effected. See Sherman, 8 F.3d at 1168 (private discriminatory conduct was not state action because the public schools were not the means by which the disputed discrimination was effected).

Finally, applying the fourth test, we find no coercion or significant encouragement sufficient to implicate the Agency in the Arbitrator's award so as to support a finding of state action. Instead, the award is the result of the Arbitrator's independent assessment of the collective bargaining agreement. See Blum v. Yaretsky, 457 U.S. at 1004-05, 1008 (a private nursing home's decision to transfer and discharge patients to lower cost facilities was not state action, despite state regulations encouraging such transfers, because the ultimate decision was based on "medical judgments made by private parties according to professional standards that are not established by the State"); Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (a private school's decision to discharge a teacher was not state action, even though the school was extensively financed and regulated by the state, because the ultimate decision was based on the school's independent assessment of its own policies and needs); U.S. v. Teamsters, 941 F.2d 1292, 1296-97 (2d Cir. 1991), cert. denied 112 S. Ct. 1161 (1992) (discipline imposed by an independent administrator appointed by a federal court was not state action, in part because the administrator's decision was guided by the union's constitution and not by federal or state law).

Accordingly, we find no conflict with the First Amendment because the Arbitrator's award lacks the requisite state action.

2. The Restrictions on the Use of the Bulletin Board Are Enforceable

Even assuming that there is sufficient state action and that the disputed speech is therefore protected by the First Amendment, the award still would not be deficient on this ground because the First Amendment does not bar enforcement of limitations on the use of an agency bulletin board.(5)

The First Amendment does not guarantee unlimited access to government-owned property or facilities for purposes of expression. International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992) (Lee). The government need not permit all forms of speech on property that it owns and controls. Id. The U.S. Supreme Court has established a forum-based approach for assessing the restrictions that the government may place on speech on public property.

Under this approach, restrictions on the use of public property are analyzed based on whether the property is: (1) a traditional public forum; (2) a designated public forum; or (3) a nonpublic forum. The traditional public forum consists of government property that has traditionally been available for public expression. E.g., Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983) (Perry). The designated public forum consists of property or facilities that the government has opened for expressive activity by part or all of the public. However, "[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802 (1985) (Cornelius). Regulation of speech on these two types of property is subject to the highest scrutiny and is enforceable only if the regulation is narrowly drawn to achieve a compelling state interest. Lee, 505 U.S. at 678.

The nonpublic forum consists of all remaining public property--government property or facilities not normally open to the public for expressive activities. Restrictions on expressive activities conducted on this type of property are constitutional if they are reasonable and not an effort to suppress the speaker's activity due to disagreement with the speaker's view. Id. at 679. Moreover, "the Government has the right to exercise control over access to the federal workplace in order to avoid interruptions to the performance of the duties of its employees." Cornelius, 473 U.S. at 805-06.

In accord with these classifications, government bulletin boards have been found to constitute nonpublic forums, and restrictions on their use have been enforced so long as the restrictions were reasonable and viewpoint neutral. See Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-20 (7th Cir. 1995) (Guardian Industries) (a public employer need not establish a policy of open access to its bulletin boards in the workplace and, therefore, does not discriminate in an unacceptable way if it excludes particular subjects from being posted on the board); see also Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471 (2d Cir. 1976) (public school could deny access to school mailboxes, bulletin boards, and meeting rooms for First Amendment speech activities because they were not public forums); Burnham v. Ianni, 899 F. Supp. 395 (D. Minn. 1995) (state university bulletin board was a nonpublic forum). In Burnham, the court relied on the Supreme Court's observation in Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974), that if it were to hold that the forum is public:

[D]isplay cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.

Under this precedent, the Agency's bulletin board is clearly a nonpublic forum. Consequently, use of the bulletin board can be "confined to particular purposes or kinds of notices without running afoul of the rule that the government may not discriminate against disfavored viewpoints and subject matters." Guardian Industries, 49 F.3d at 319. The restriction on notices contained in Article 10, Section 2a of the parties' collective bargaining agreement, to those of general interest, satisfies the requirements of reasonableness and viewpoint neutrality. See id. Moreover, the Union does not assert that the posted message in fact related to matters of general interest. Therefore, we find that the Arbitrator's enforcement of the collective bargaining agreement's restrictions on the Union's use of the Agency-provided bulletin board is not contrary to the First Amendment.

Accordingly, we deny the Union's exception.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Member Armendariz' separate opinions are set forth at footnotes 4 and 5.

2. The Arbitrator found that the Union violated the following provisions of the parties' agreement, which provide as follows:

Article 6, Section 6: "The Parties agree to cooperate in efforts which will improve the Employer's business and the employee's working conditions."

Article 10, Section 2a: "Bulletin board space will be made available to [the] Union to effectively disseminate general interest information at each work location."

Article 11, Section 1: "The Parties will maintain open lines of communication so as to complete matters of mutual concern expeditiously and, whenever possible, without undue formality."

Article 11, Section 2: "It is mutually recognized by the Employer and the Union that courtesy, respect, decency and dignity are important ingredients in all working relationships. The Employer and the Union mutually pledge their efforts to see that working relationships in all matters are conducted in a manner consistent with these principles."

Award at 9-10.

3. ESM 15-4 prohibits any employee from engaging in conduct that gives the appearance of impeding Agency efficiency.

4. Although he agrees that participants in procedures under the Statute should make every effort to produce amicable resolutions of disputes, Member Armendariz does not join in the majority's dictum characterizing the Arbitrator's language as intemperate.

5. As Member Armendariz believes that the absence of state action is a sufficient basis on which to deny the Union's exception, he sees no reason to analyze whether the Arbitrator could, consistent with the First Amendment, enforce the contractual limitations on bulletin board use.