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56 FLRA No. 114
GENERAL SERVICES ADMINISTRATION
REGION 9, LOS ANGELES, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
September 25, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Barbara Bridgewater 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 did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to properly notify the Union of a formal meeting. The Arbitrator ordered the Agency to comply with the agreement. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency held a formal meeting without providing the Union an opportunity to be represented at the meeting. The grievance was submitted to arbitration, where, as relevant here, [n1] the Arbitrator set forth the issue as follows: "Whether the Union was properly notified of the . . . meeting." Award at 2.
The Arbitrator found that the Agency held a "formal meeting" concerning a report that provided an assessment of the Agency. Id. at 4. The parties stipulated that "the building's Union representative . . . received the same invitation to the . . . meeting that the other employees received." Id.
The Arbitrator found that under Article 4, Section 4, of the parties' agreement, the Union has the right to be represented at formal discussions. [n2] The Arbitrator stated that Article 4, Section 4 "parallels" section 7114(a)(2)(A) of the Statute and that, under the Statute, unions have the right to "choose their own representatives." Id. at 9-10 (citing Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, AFL-CIO, 29 FLRA 594, 604-07 (1987) (McClellan); Department of the Treasury, U.S. Customs Service, Miami, Florida and National Treasury Employees Union, 29 FLRA 610, 613-15 (1987) (Customs)). The Arbitrator also stated that under Article 4, Sections 2 and 6, "the Union has been granted the right to select its representatives and to inform the Agency of the names and locations of the . . . representatives." Award at 10.
The Arbitrator found that there was no evidence that the local Union representative who received the notice of the meeting was informed that he was invited in "his capacity as the local representative or that he even attended the meeting." Id. at 9. The Arbitrator concluded that, although the local Union representative "was the designated local representative," the Union has the right, under Article 6, Section 5A of the parties' agreement, to "make the determination as to whether to [ v56 p684 ] send a National Council Member, the local representative or another local representative in the absence, unavailability or conflict of interest of the local representative." [n3] Id. at 10.
Based on the foregoing, the Arbitrator concluded that the Agency violated Article 4, Section 4 of the parties' agreement. As her award, the Arbitrator directed the Agency to comply with the agreement.
III. Agency's Exceptions
The Agency contends that the award fails to draw its essence from Article 4, Section 4, and Article 6, Section 5A of the parties' agreement. The Agency points out the parties' stipulation that the Union's "designated representative . . . received the same advance notice of the . . . meeting that the other unit employees received." Exceptions at 1. According to the Agency:
The Arbitrator's conclusion that giving advance notice of the meeting to the Union's designated representative was inconsistent with the Union's "mak[ing] the determination" as to whom to send to the meeting cannot in any rational way be derived from [the agreement].
Id. at 2. The Agency argues that, insofar as the Arbitrator adopted the Union's argument that it was entitled to be notified at the regional level because a regional manager attended the meeting, that interpretation of the parties' agreement also fails to draw its essence from the agreement.
The Agency also contends that the Arbitrator misapplied Authority case law. In particular, the Agency claims that the Arbitrator's reliance on McClellan and Customs was erroneous because, in this case, "it was stipulated that prior notice was given to the person acknowledged by the Arbitrator to be the Union's designated representative." Exceptions at 3. The Agency contends, in this regard, that McClellan and Customs did not affect the Authority's prior holding that "there is no requirement to notify a union representative of formal discussion 'specifically in his or her capacity as a union official.'" Id. at 3-4 (quoting Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250, AFL-CIO, 19 FLRA 1054, 1056 (1985)(VAMC, Muskogee). Finally, the Agency contends that whether the local Union representative actually attended the meeting is irrelevant because the Union's contractual and statutory rights are only to be provided an opportunity to attend a meeting.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the parties' collective bargaining agreement.
For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Arbitrator found that, under Articles 4 and 6 of the parties' agreement, the Union has the right to both designate representatives and to determine whether to send national, regional, or local representatives to formal meetings. Thus, according to the Arbitrator, the fact that the local Union representative had been designated by the Union did not mean that the Union was prevented from determining that a different representative should attend the meeting. The Arbitrator specifically noted, in this regard, that Article 6, Section 5A expressly contemplates use of different representatives, including local representatives, in various circumstances.
Although the Agency disputes the Arbitrator's interpretation of the agreement, it has not shown that the interpretation cannot be derived from the agreement. In particular, while the Agency's interpretation of the agreement is plausible -- that the Agency acted properly in notifying the Union's designated representative and that after notification it was the Union's responsibility to determine which representative to send to the meeting -- it is not the only plausible interpretation and does not demonstrate that the Arbitrator's interpretation is deficient.
The Agency also argues that, insofar as the Arbitrator adopted the Union's argument that it was entitled to be notified at the regional level because a regional level manager attended the meeting, that interpretation of the parties' agreement also fails to draw its essence from the agreement. However, the Arbitrator made no [ v56 p685 ] finding regarding this Union argument. Accordingly, there is no basis in the award for concluding that the Arbitrator interpreted the agreement in the manner suggested by the Agency.
B. The award is not contrary to law.
The Agency asserts that the award is deficient because the Arbitrator misapplied Authority precedent. Similar claims have been construed by the Authority as claims that an award was contrary to law. See American Federation of Government Employees, Local 2280 and U.S. Department of Veterans Affairs, Medical Center, Iron Mountain, Michigan, 51 FLRA 620, 623-24 (1995). In reviewing such claims, the Authority reviews the questions of law raised by the award and the exceptions de novo. See 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)). 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, based on the underlying factual findings. See 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 factual findings. See id.
In this case, the Arbitrator found that Article 4, Section 4 of the parties agreement "parallels" section 7114(a)(2)(A) of the Statute and that Article 6, Section 5A of the agreement defines the Union's right to determine whether to send a national or local union representative to a formal meeting. Award at 9-10. The Authority has long held that, where a disputed contract provision restates a provision of the Statute, the Authority "must exercise care" to ensure that the arbitrator's interpretation is consistent with the Authority precedent interpreting the statutory provision. U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 43 FLRA 147, 153 (1991). Thus, we address the Agency's argument that the Arbitrator misapplied Authority precedent in interpreting the parties' agreement.
The Agency argues that it satisfied its obligation to the Union because the local Union representative received notice of the meeting, relying on VAMC, Muskogee, 19 FLRA 1054. The Agency asserts that the case relied on by the Arbitrator, McClellan, "did not disturb" the Authority's holding in VAMC, Muskogee that formal notification of a union representative "in his or her capacity as a union official" is not always necessary. Exceptions at 3-4.
Although the Agency is correct that, under McClellan, formal notification of a union representative in his or her union capacity is not always required, that case establishes that section 7114(a)(2)(A) of the Statute encompasses not only a union's right to notice of a formal discussion but also the union's right "to designate its own representative to attend a formal discussion." McClellan, 29 FLRA at 605. Consistent with this, the Authority held that, where a union official receives actual notice of a meeting, but does not receive "formal notice" as a union representative, the Authority determines "whether that receipt was sufficient to establish that the union had an opportunity to be represented at the formal discussion within the meaning of section 7114(a)(2)(A), including the opportunity to designate a representative of its own choosing." Id. at 606.
Here, the Arbitrator found, and the Agency does not dispute, that the Union representative did not receive notice of the disputed meeting "in his capacity as the [Union] representative . . . ." Award at 9. The Arbitrator also found that the Agency's action violated the Union's right to designate the representative it wished to attend the meeting, relying on Article 6, Section 5A of the parties' agreement. The Agency's argument that it satisfied its obligation by notifying the local Union representative ignores the Union's right to designate its representatives and the Arbitrator's finding that the Union's right was violated in this case. As the Arbitrator resolved the case based on this finding, and as we have denied the Agency's exception to it, see Part IV.A., supra, we find that the Agency has not established that the award is contrary to law.
The Agency's exceptions are denied.
Footnote # 1 for 56 FLRA No. 114
The Arbitrator also resolved a second issue, finding that the Agency had not created a hostile work environment during the formal meeting. As no exceptions were filed to this aspect of the award, we do not address it in this decision.
Footnote # 2 for 56 FLRA No. 114
Section 2. Recognition of Union Officials
The Employer agrees to recognize designated Union officials . . . . The National Council President will notify the National Labor Relations Officer in writing of the Regional Vice Presidents . . . . The Regional Vice Presidents will notify the Regional Labor Relations Officers in writing of the designated union regional representatives . . . . The Union will notify the Employer in writing of any changes in its designated representatives.
Section 4. Formal Discussions/Meetings
The Union shall be given the opportunity to be represented at any formal discussion . . . concerning any grievance or any personnel policy or practice or other general condition of employment.
Section 6. Employee Information
When provided by the Union, [the Agency] will post on bulletin board space a . . . list of the Union's designated representatives . . . .
Award at 2-3.
Footnote # 3 for 56 FLRA No. 114
Article 6, Section 5A provides, in pertinent part: "The Union will select or appoint its representatives who will be using official time . . . . Reasonable use of another representative will be allowed in the absence, unavailability or conflict of interest of the appropriate designated representative . . . ." Award at 3.