Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220
[ v55 p498 ]
55 FLRA No. 86
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 220
May 28, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated section 7116(a)(1) of the Statute when it confiscated responses to a survey that the Union had used to poll its membership. To remedy this violation, the Arbitrator ordered the Agency to return the responses to the Union and to post a notice for a period of 60 days. The Arbitrator stated he was retaining jurisdiction for 30 days in order to allow the parties to attempt to resolve their remaining concerns.
For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
A. Facts Giving Rise to this Grievance
This case concerns a dispute between the American Federation of Government Employees, Council 220 ("Union") and the Social Security Administration ("Agency") over the responses to a survey of bargaining unit employees conducted by the Union.
In early February 1997, the Union E-mailed to its 1,300 field offices a survey, which, among other things, asked whether each field office is co-located in the same building with one or more of various law enforcement agencies. On February 25, 1997, the Union Representative who conducted the survey was ordered by her office manager to turn over the responses she had received from the survey. The Union notified the Agency that, under protest, it would submit the responses to the Agency. On March 3, 1997, the Union turned over its collected responses to the Agency. The Union turned over additional responses as they received them. On March 7, 1997, the Union filed a grievance regarding the Agency's decision to confiscate the responses.
B. Arbitrator's Award
The Union argued before the Arbitrator that it had the right to conduct the survey, that the Agency's confiscation of the responses was improper, and requested that the responses be returned. The Agency claimed that it had the right to confiscate the responses as a matter of internal security, and requested that the grievance be denied. The Arbitrator framed the issues as follows:
1) Did the surveyed information represent a security risk under 5 U.S.C. Sec. 7106(a)(1)?
2) Was the Agency justified, under the negotiated National Agreement, in ordering the Union to turn over its survey of union officials regarding the co-location of SSA field offices with various local, state, and federal law enforcement agencies to it? If not, what shall be the remedy?
3) Did the Agency commit an unfair labor practice charge under 5 U.S.C. Sec. 7116(a) of the Federal Service Labor-Management Relations Statute when it ordered the Union to turn over the above-referenced survey? If so, what shall be the remedy?
Arbitrator's Award (hereinafter "Award") at 1.
First, the Arbitrator found that the Agency had not demonstrated that the Union compromised internal security by conducting a survey regarding whether the Agency's field offices share a building with a law enforcement agency. Therefore, the Arbitrator held that the Agency's confiscation of the responses was not justified. In this regard, the Arbitrator emphasized the distinction between collecting responses to the survey, as the Union had started to do in this case, with "an actual attempt by the Union to disseminate any information from the survey to Union representatives, to the employees whom it represents or to Management," which did not occur in this case. Award at 23. The Arbitrator concluded that "the Agency's right to take appropriate measures to safeguard the security of the Agency's [ v55 p499 ] employees, buildings and property does not extend, in the particular circumstances presented, to a right to prevent the Union from conducting" its investigation. Id.
Second, the Arbitrator stated that the Union "has a right to seek to obtain information to appropriately represent employees in its bargaining unit concerning their conditions of employment, i.e., safety." Id. at 24. Therefore, the Arbitrator held that the Agency committed an unfair labor practice under section 7116(a)(1) of the Statute by preventing the Union from investigating a matter of potential concern to bargaining unit employees. Furthermore, the Arbitrator noted that because the Union has an independent right, as the exclusive representative, to conduct an investigation into the concerns of bargaining unit employees, the Union was not limited to acting only with the Agency's prior approval through the National Health and Safety Partnership Committee for Security. [n1]
Third, the Arbitrator found that the Agency failed to demonstrate that the information held by the Union at the time of the grievance was "classified," "confidential," or "sensitive." Id. at 25. Although the Arbitrator noted that it is conceivable that a compilation of the survey results could raise legitimate security concerns, the Arbitrator found that potential risk to be "premature" considering the early stage of the information-collecting process. Id. In this regard, the Arbitrator concluded that the legal authority cited by the Agency was not controlling, and found that the Agency had not demonstrated that any regulations apply to the facts of this case.
Fourth, the Arbitrator disagreed with the Agency's argument that the Freedom of Information Act ("FOIA") is relevant to this case. In this regard, the Arbitrator noted that the Union "did not file with the Agency a request for information pursuant to the FOIA, nor did the Agency turn over to the Union, or refuse to turn over to the Union, any information pursuant to a FOIA request." Id. at 26.
Accordingly, the Arbitrator directed the Agency to return the surveys to the Union so that the Union could review the information "to determine whether any security issues regarding the co-location of [Agency] facilities and law enforcement agencies are raised by its members[.]" [n2] Id. at 27. The Arbitrator retained jurisdiction for 30 days, with leave to extend such period upon request, for the purpose of allowing the parties to attempt to resolve their remaining concerns. In this regard, the Arbitrator noted that the parties had not addressed the question of "whether, and, if so, to what extent, the Agency may have a legitimate security interest in controlling or limiting the manner and/or means by which [the] survey compilation results are to be disseminated." Id. The Arbitrator stated that the parties "also should attempt to resolve any issues concerning the Union maintaining the surveys in a secure manner." Id. at 28.
III. Positions of the Parties
A. Agency's Exceptions
The Agency excepts to the award of the Arbitrator on five different grounds.
1. The Arbitrator Failed to Conduct a Fair Hearing
The Agency claims that the Arbitrator failed to conduct a fair hearing because he reached his decision "without regard" to testimony given by the Agency's witnesses. Exceptions at 3. As support, the Agency cites to U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 105 (1991) (Hill Air Force Base) for the proposition that the Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence. The Agency argues that, "[w]hile it is not disputed that the Arbitrator accepted the testimony of the Agency's witnesses," the award is deficient because the Arbitrator failed to defer to the Agency's expert testimony. Exceptions at 4.
2. The Award Conflicts With the Agency's Right to Determine Its Internal Security Practices
The Agency claims that its right to determine its internal security practices under section 7106(a)(1) of the Statute "includes the right to determine the policies and practices that are part of an agency plan to secure and safeguard its personnel and physical property and to prevent the disruption of the agency's activities and operations[,]" citing as authority U.S. Department of Defense, Defense Finance and Accounting Service, Indianapolis Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 48 FLRA 1124, 1126 (1993) (DFAS). In this regard, the Agency argues that the Authority requires an agency to [ v55 p500 ] demonstrate that there is "a link or reasonable connection" between its right to determine internal security practices and the disputed action. Exceptions at 6. As authority, the Agency cites to DFAS, 48 FLRA at 1126. Exceptions at 5. The Agency concludes that because the evidence presented before the Arbitrator demonstrated such a link or reasonable connection, the Arbitrator should have found that the Agency acted within its rights under section 7106 of the Statute. Therefore, the Agency asserts that the Arbitrator improperly applied the "direct interference" test enunciated by the Court in U.S. Department of Justice, INS v. FLRA, 975 F.2d 218, 222-224 (5th Cir. 1992) (INS v. FLRA), to determine that the Agency did not act within its rights in this case. Exceptions at 5-6. The Agency also contends that a 7106(b)(3) appropriate arrangement does not exist in this case. Id. at 6-7. In addition, the Agency claims that "the survey is nonnegotiable under the statute as a `procedure,' since implementation would interfere with the Agency's statutorily reserved management right to determine its internal security practices and physical security." Id. at 11.
Furthermore, the Agency states that the Management's Rights section of the parties' agreement lacks any provision limiting the Agency's exercise of its internal security right under section 7106 of the Statute. [n3] Therefore, the Agency argues that, in the absence of specific language negotiated between the parties that limits the Agency's right to determine its internal security practices, the Agency acted within its rights in this case.
3. The Award Conflicts With 41 C.F.R. § 101-20.103-2, a Government-Wide Regulation
The Agency asserts that 41 C.F.R. § 101-20.103-2 gives the Agency the "absolute right to determine physical security measures - not the Union and not an Arbitrator." [n4] Id. at 8. Specifically, the Agency argues that the regulation does not mention that unions have the right to conduct surveys and determine physical security measures for a facility. Instead, the Agency argues that since the survey requested detailed information about the types of law enforcement personnel co-located in the union members' facilities, which constituted more than just the members' opinions, the regulation gave the Agency the right to confiscate the survey.
4. The Arbitrator Exceeded His Authority
The Agency claims that "the Arbitrator exceeded his authority by remanding the grievance to the [p]arties to attempt to resolve the competing concerns" of the Union and the Agency concerning the survey. Id. at 8. In this connection, the Agency contends that the security issues addressed by the remand are covered by Article 9 of the parties' National Agreement. [n5] The Agency notes that there is no duty to bargain over matters contained in or covered by negotiated agreements, and in support cites U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). Exceptions at 9-10.
5. The Award Fails to Draw Its Essence From the Parties' Agreement
The Agency claims that the award fails to draw its essence from the parties' agreement by "condoning [the Union's] use of polling to conduct this survey/investigation using official time and official facilities when there is no provision in the National Agreement" that allows such action. Id. at 10. The Agency states that, while the Union has a protected right under the Statute to distribute Union materials on the Agency's property during "non-work time[,]" the parties' agreement prohibits the Union from distributing Union material on official time or using official facilities and services, such as E-mail and fax machines, to distribute material to union members. [n6] Id. at 10. Specifically, the Agency argues that it did not authorize, consistent with Article 11, section 6 of the parties' agreement, the Union's use of Agency services in connection with the survey. [n7] Therefore, the Agency contends that the Union representative improperly used Agency official time to conduct the survey. In support, the Agency cites to Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA 831 (1985). Exceptions at 11.
B. Union's Opposition
First, the Union opposes the Agency's argument that the Arbitrator did not conduct a fair hearing. The Union states that the Arbitrator "throughly considered the testimony of each and every witness at the hearing," and quoted the witnesses directly in his award. Opposi- [ v55 p501 ] tion at 2. In this regard, the Union argues that "it is well settled" that the arbitrator has "considerable latitude in the conduct of the hearing." Id., citing Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 547, 24 FLRA 959, 961 (1986).
Second, the Union maintains that the Agency has not demonstrated how the survey "directly interfere[d]" with the Agency's rights. Opposition at 3. Rather, the Union claims that the Arbitrator "show[ed] his sensitivity" to the Agency's internal security concerns by suggesting that the Union discuss with the Agency the manner and/or means by which the survey results will be disseminated. [n8]
Third, the Union claims that the Agency has not shown how 41 C.F.R. § 101-20.103-2 is relevant to this case. The Union points out that the Agency "admits" that this regulation does not specifically address the right of union officials to conduct surveys. Id. at 4 n.3. [n9] Furthermore, the Union asserts the award is not deficient because the Agency has not shown, as required by the Authority, that the regulations "preclude" the arbitrator from reaching his decision. Id. at 4, citing American Federation of Government Employees, Council 220 and Social Security Administration, 54 FLRA 163 (1998). The Union also argues that, because the Agency never raised the regulation as an issue at arbitration, it should not now be considered by the Authority.
Fourth, concerning the portion of the Agency's exception alleging that the Arbitrator exceeded his authority "by proposing that the parties meet in the future and discuss the manner and/or means by which the results of the survey are [to be] disseminated," the Union alleges that this aspect of the award is "more in the nature of dicta[.]" Opposition at 4. In this regard, the Union claims that the award is responsive to the limited issue before the Arbitrator, and that the Arbitrator's proposal that the parties meet in the future is not in "manifest disregard" of the parties' agreement. Id. at 5.
Finally, the Union asserts that the Agency's essence exception "is merely a disagreement with the Arbitrator's interpretation of the [parties'] agreement[.]" Id. at 4. The Union claims that since the Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement is irrational, implausible, or in manifest disregard of the agreement, there are no grounds to reverse the award. In support, the Union cites to Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, SSA General Committee, 46 FLRA 1118 (1993). In this regard, the Union contends that the issue of official time was not an issue at arbitration and therefore should not be addressed by the Authority. In any event, the Union states that the Agency inaccurately cites Article 12, section 2 of the agreement as controlling, as it only deals with union officials distributing union publications to employees during nonduty time. Contrary to the Agency's assertions, the Union contends that Article 11 gives the Union the right to use Government mail, fax, and E-mail "to disseminate information such as the union survey[.]" Opposition at 5. [n10]
IV. Analysis and Conclusions
A. The Arbitrator Did Not Fail to Conduct a Fair Hearing
The Agency claims that the Arbitrator failed to accord proper weight to the testimony of the Agency's witnesses and, therefore, failed to conduct a fair hearing. The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). Disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, will not establish that an award is deficient. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995).
The Agency has not demonstrated that the Arbitrator prejudiced the Agency or affected the fairness of the proceedings. Instead, the Agency claims that the Arbitrator failed to defer to expert testimony that was provided by the Agency's witnesses. In this regard, the [ v55 p502 ] Arbitrator stated that he was "not persuaded that Management has established on this record, given the early stage of the Union's investigation of the facts, an appropriate basis to conclude that there existed at that stage a sufficiently immediate security risk to justify the Agency's interference with the Union[ ] . . ." Award at 24. On this matter, the Arbitrator did not refuse to hear the evidence in a manner that would warrant our finding that he failed to conduct a fair hearing.
The case cited by the Agency, Hill Air Force Base, 39 FLRA 103, does not support its argument here. In Hill Air Force Base, the Authority found an award deficient when the arbitrator had stated in the award that he would not consider the union's evidence. In contrast, the Arbitrator in this case summarized and quoted the testimony of the Agency's witnesses in the body of the award, establishing that such evidence had been considered. Accordingly, the exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 101-102 (1996). We deny the exception.
B. The Award Does Not Conflict With the Agency's Right to Determine Its Internal Security Practices
For the following reasons, we find that the Agency has not supported its argument with adequate evidence that the responses to the survey are a threat to internal security. Accordingly, its management rights are unaffected by the award.
1. Analytical Framework
The Agency has alleged that the award violates management's right under section 7106(a)(1) of the Statute to determine internal security practices. As the Agency's exception involves an allegation that the award is inconsistent with law, the Authority will review the exception and the award de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, as applied to claims made under section 7106(a)(1), the Authority examines whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.
2. The Award Does Not Affect the Agency's Right to Determine Its Internal Security [n11]
Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and practices that are part of an agency's plan to secure and safeguard its personnel and physical property and to prevent the disruption of the agency's activities and operations. See, e.g., U.S. Department of Defense, Defense Finance and Accounting Service, Indianapolis Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 48 FLRA 1124, 1126-27 (1993). When there is a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice, we will find that the disputed practice constitutes the exercise by management of its right under section 7106(a)(1) to determine its internal security practices. See Id.
The Arbitrator determined that the Agency's evidence was directed to the potential threat to the Agency should the responses to the survey be compiled into a "master list" and disseminated among the bargaining unit. According to the Arbitrator, the uncompiled and undisseminated information contained in the responses represented no threat to the Agency. Moreover, the Arbitrator found that the "basic information" presented by the survey responses is readily accessible to anyone in the public "through a variety of sources." Award at [ v55 p503 ] 22. Such sources include telephone books and building directories. Id. at 24.
We defer to the Arbitrator's above stated factual findings and conclude that the Agency has not established a reasonable link between the responses to the surveys and its concern for internal security. See American Federation of Government Employees, Local 2076 and U.S. Department of Justice, Immigration and Naturalization Service, 47 FLRA 1379, 1381-82 (1993) (agency submitted no evidence supporting assertion that award allowing officers to work double shifts interfered with right to determine internal security); U.S. Department of Health and Human Services, Region V and National Treasury Employees Union, Chapter 230, 45 FLRA 737, 752-753 (1992) (agency presented no specific evidence establishing a reasonable link between its no smoking policy and the security of its operation). Accordingly, the award does not affect management's right to determine its internal security practices. We deny the exception.
C. The Agency's Exception that the Award Conflicts With 41 C.F.R. § 101-20.103-2 Is Barred By Section 2429.5 of the Authority's Regulations
The Union argues that the Authority should not consider the exception because "the Agency is raising this particular provision [41 C.F.R. § 101-20.103-2] for the first time." Opposition at 3.
Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995) (Ft. Sam Houston). There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exceptions, that 41 C.F.R. § 101-20.103-2 justified the Agency's confiscation of the survey results. Because this issue relates to the propriety of the Agency's conduct in this case, it clearly could have, and should have, been presented to the Arbitrator. See American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1149-50 (1998) (DLA). Accordingly, the Agency's argument is barred from consideration. See DLA, 54 FLRA at 1150; Ft. Sam Houston, 50 FLRA at 328. We dismiss the exception.
D. The Arbitrator Did Not Exceed His Authority
The Agency claims that the Arbitrator exceeded his authority by "[d]irecting the [p]arties to attempt to resolve any issues concerning the Union maintaining the surveys in a secure area . . . . " Exceptions at 8.
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to parties not included within the grievance. See National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymore Johnson Air Force Base, Goldsboro, North Carolina, 54 FLRA 76, 80 (1998). Nevertheless, "the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." U.S. Department of the Interior, U.S. Geological Survey, National Mapping Division, Mapping Applications Center and National Federation of Federal Employees, Local 1309, 55 FLRA 30, 32-33 (1998) (National Mapping Division), citing American Federation of Government Employees, National Council of SSA Field Operations Locals, Council 220, and Social Security Administration, 54 FLRA 891, 902 (1998).
Here, the parties did not stipulate the issues to be resolved, thus allowing the Arbitrator to formulate the issues in his award. In this regard, the Arbitrator framed one of the issues as whether the Agency was justified in ordering the Union to turn over its survey results, and "[i]f not, what shall be the remedy?" Award at 1. In the remedy portion of the award, the Arbitrator stated that although "the Agency exceeded its legitimate security interests by confiscating the surveys to prevent the Union from compiling the co-location information," the Agency "may have" a security interest in the manner and means in which the compiled information is maintained and disseminated by the Union. Id. at 27. In response to the possibility that the Agency would have such future concerns, the Arbitrator remanded the grievance to the parties "for the limited purpose of affording them an opportunity to review these matters and, hopefully, to reach an understanding which will respect and take into account the legitimate interests of each [p]arty with regard to security." Award at 23. In our view, the award, including the Arbitrator's formulation of the remedy, is directly responsive to the Arbitrator's framing of the issue. See National Mapping Division, 55 FLRA at 32-33. Consequently, the Arbitrator did not exceed his authority by remanding the grievance to the [ v55 p504 ] parties to allow them to resolve their future interests. We deny the Exception.
E. The Agency's Exception that the Award Fails to Draw Its Essence From the Parties' Agreement Is Barred By Section 2429.5 of the Authority's Regulations
The Union argues that the Authority should not consider the Agency's "essence" exception because "once again the Agency is raising a new issue, polling on official time, that Arbitrator Sharnoff never addressed in his award, because it was never a part of the issue in the case . . . " Opposition at 5. We construe this as an argument that, consistent with section 2429.5 of the Authority's regulations, the Authority should deny the Agency's exception as based upon a matter that could have been, but was not, raised to the Arbitrator.
As noted above, under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. Fort Sam Houston, 50 FLRA at 328. There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exceptions, that the Union's actions in conducting the survey violate an official time provision of the parties' agreement, or that the Union acted illegally by using Agency services without the Agency's permission. As these issues relate to the Union's conduct, they clearly could have, and should have, been presented to the Arbitrator. See DLA, 54 FLRA at 1149-50. Accordingly, these arguments are barred from consideration. See id. at 1150; Ft. Sam Houston, 50 FLRA at 328.
Alternatively, even if we were to resolve the Agency's exception on essence grounds, we would not find the Award to be deficient. To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).
Here, the Agency argues that the award fails to draw its essence from Articles 11 and 12 of the parties' agreement by "condoning" the Union's "use of polling to conduct [the] survey/investigation using official time and official facilities when there is no provision" of the agreement that permits the Union to do so. Exceptions at 10. Upon review, however, nothing in the language of Article 11 or 12 restricts the Union's ability to conduct surveys of the bargaining unit, or its ability to use Agency facilities. Accordingly, the Agency has failed to establish that the Arbitrator's award is implausible, irrational or in manifest disregard of the parties' agreement. We deny the exception.
The Agency's exceptions are denied. [ v55 p505 ]
41 C.F.R. § 101-20.103-2 provides as follows:
The degree of protection beyond standard levels required by the nature of an agency's activities or by unusual public reaction to an agency's programs will be determined jointly by GSA and the occupant agency. Special protection will be provided on a reimbursable basis. The level of special protection will be determined on a facility-by-facility basis, after the conducting of appropriate security surveys and crime prevention assessments. In such determinations, GSA and occupant agencies will consider:
(1) The characteristics of the facility, including size, configurations, exterior lighting, and presence of physical barriers;
(2) The location of the facility and the history of criminal or disruptive incidents in the surrounding neighborhoods; and
(3) The reimbursable funding and resources available to GSA for provision of protective service.
(4) Tenant agency's mission.
The Management's Rights section of the parties' agreement provides, in pertinent part, as follows:
A. Subject to subsection (B) of this section, nothing in this Agreement shall affect the authority of any management official of any agency -
(1) to determine the mission, budget, organization, number of employees and internal security practices of the agency; and
. . . .
B. Nothing in this section shall preclude any agency and labor organization from negotiating --
(1) at the election of the agency, on the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Article 9 of the parties' agreement, Health and Safety, provides, in pertinent part, as follows:
Section 2 -- Committees
. . . .
C. The parties agree to establish three national component level committees . . . These committees will be composed of an equal number of Union representatives and management officials. . . .
. . . .
F. Frequency of committee meetings will be determined by the committees. National component-level committees, however, will meet no less than three (3) times a year.
. . . .
H. In accordance with applicable laws and regulations, the Employer will provide available information which is necessary to the duties of the committee upon request.
. . . .
Section 12 -- Onsite Security
A. The Employer will make reasonable efforts to protect employees from abusive and threatening clients and will take reasonable precautions to ensure such protections.
B. The Employer will arrange for emergency protective assistance at each installation to enable employees to receive assistance if the situation requires it.
. . . .
E. Where conditions warrant, the Employer will provide equipped security guards at SSA facilities.
. . . .
Article 11 of the parties' agreement, Use of Official Facilities, provides, in pertinent part, as follows:
. . . .
Section 6 -- Other Facilities and Services
The Administration agrees to furnish, where available, customary and routine services which are [ v55 p506 ] consistent with the best interest of the Employer, employees, and the Union. Such services include internal mail (for other than mass mailing), photocopy equipment, shuttle and the like. This will include SSA Union representatives if they are conducting representational duties away from their permanent duty station.
. . . .
The Letter of Understanding following Article 11 provides, in pertinent part, as follows:
As part of the agreement to settle Article 11, Use of Official Facilities, the parties agree to the following:
. . . .
3. Management agrees to permit reasonable access to SSA facilities by AFGE employees, union officers and representatives, including offsite union representatives. When SSA issues are involved, reasonable access will be granted to the facility as well as use of equipment, such as typewriters and photocopiers.
4. As workloads permit, management agrees to provide access to existing FAX machines and access to E-Mail will be provided by IS/LAN equipment assigned to union representatives for their regular work duties.
5. Management agrees, within the life of this contract, to provide the union representative with a file cabinet and/or bookcase to keep official union material stored. . . .
. . . .
Article 12 of the parties' agreement, Communications, provides, in pertinent part, as follows:
Section 2 -- Distribution of Union Publications
A. Official publications of the Union may be distributed on SSA property by Union representatives during nonduty 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 employees.
. . . .
Footnote # 1 for 55 FLRA No. 86
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Footnote # 8 for 55 FLRA No. 86
The Union states that the Authority should not consider the Agency's reference to section 7106(b)(3) because this "was never a provision that was raised by the Agency at the Arbitration below[.]" Id. at 3 n.2.
Footnote # 9 for 55 FLRA No. 86
The Union is presumably referring to the Agency's statement that "[t]here is no mention in this [41 C.F.R. § 101-20.103-2] Government-wide regulation that Unions have the right to conduct surveys and determine physical security measures for a facility." See Exceptions at 8.
Footnote # 10 for 55 FLRA No. 86
Footnote # 11 for 55 FLRA No. 86