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57 FLRA No. 53
UNITED STATES DEPARTMENT OF THE
INTERIOR, NATIONAL PARK SERVICE
VALLEY FORGE NATIONAL HISTORICAL PARK
VALLEY FORGE, PENNSYLVANIA
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-120
June 8, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members
Decision by Chairman Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ezra S. Krendel 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 determined that under the parties' agreement the grievant was entitled to official time for assisting an employee in the preparation of an appeal before the Merit Systems Protection Board (MSPB or Board). For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
The grievant is the president of NAGE Local R3-120. Acting as a Union representative, the grievant represented a bargaining unit employee involved in a whistle blowing action before a judge of the MSPB. During that representation, the judge determined that the MSPB lacked jurisdiction to hear the case. The matter was then appealed to the full Board for review.
For the hearing before the full Board, the employee obtained representation by a NAGE attorney. [n1] Prior to the hearing date, the NAGE attorney requested that the grievant travel to his office to assist him in preparing for the MSPB appeal given the grievant's familiarity with the case. Responding to the request, the grievant asked his supervisor for up to two eight-hour days of official time. The request for official time was reviewed and subsequently denied. In so doing, the Agency claimed that the only representative of record before the MSPB was the NAGE attorney, and the parties' agreement only allowed official time for the representative of record. As such, the grievant took one day of annual leave to meet with the attorney.
In his award, the Arbitrator noted that Article 7, Section 6, subsections a & d of the parties' master agreement resolved the issue. [n2] The Arbitrator emphasized that under this provision, "Union representatives will be granted reasonable time off without charge to leave to perform representational functions." Award at 4. The Arbitrator determined that the grievant's assistance in the preparation of the MSPB appeal on behalf of the employee constituted a representational function. The Arbitrator also speculated that had the NAGE attorney come to the grievant's workplace, it would have been "hard to believe" that the Agency would not have granted official time. Id. Therefore, the Arbitrator found that the grievant was entitled to have his eight hours of annual leave converted into eight hours of official time. Id. at 2, 4.
III. Preliminary Issue
The Agency attached an affidavit to its exceptions. In response, the Union moves to strike the affidavit claiming that it contains evidence that could have been raised at the hearing.
The attached affidavit offers the opinion of an Agency attorney who did not testify at the hearing. [n3] In the affidavit, the attorney states that the grievant was not [ v57 p259 ] the employee's representative of record before the MSPB on appeal. Given this, the attorney states that her belief at the time she denied the request was that absent this designation the grievant would not be entitled to official time under the parties' contract. [n4]
Under Authority regulation 5 C.F.R. § 2429.5, the Authority will not consider evidence offered by a party that was not presented to the arbitrator. The Agency could have offered the attorney's testimony at the hearing but chose not to. Therefore, the Agency has not demonstrated why, in light of the clear terms of § 2429.5, we should consider the affidavit under these circumstances. See United States Dep't of the Navy, United States Marine Corps, Marine Corps Air Station, Cherry Point, N.C., 54 FLRA 213, 217 (1998); United States Small Business Admin., Atlanta, Ga., 37 FLRA 137, 142 (1990). Accordingly, we have not considered the Agency's attached affidavit in reviewing the Arbitrator's award.
IV. Positions of the Parties
A. Agency's Exceptions
The Agency argues that [n]owhere in [the MSPB] regulations does there exist a provision for more than one representative for the appellant. Exceptions at 2. To support this, the Agency refers to 5 C.F.R. § 1201.31 and contends that under it a party may choose any representative as long as that person is willing and available to serve. Id. It asserts that this language, along with similar language in the same MSPB regulation, clearly limit a party to choosing a single person to represent them, and that since the employee had already designated the NAGE attorney as her representative, the grievant could not be acting in such a capacity. Therefore, it argues that the award is contrary to law because only the NAGE attorney would be eligible for official time under 5 C.F.R. § 1201.31. Id. at 2-3.
The Agency also contends that to the extent a provision within the parties' agreement is contrary to MSPB regulation, Article 2 of the parties' agreement mandates that the regulation must be followed. Id. at 3.
Finally, the Agency makes three contentions under a nonfact exception. First, the Agency argues that the Arbitrator erred in finding that an attorney was necessary for the MSPB appeal. Second, it contends that it never would have granted official time to the grievant had the NAGE attorney traveled to the grievant's workplace despite the contrary finding of the Arbitrator. Third, it claims that the employee was not transferred because of whistle blowing activities as indicated in the award. Accordingly, it asserts that but for these "gross mistake[s]," the Arbitrator would have reached a different result. Exceptions at 3.
B. Union's Opposition
The Union contends that the MSPB's regulations are not applicable to this matter, the award is not contrary to any other law and the Agency's argument focuses principally on contract interpretation. Opposition at 6.
Moreover, the Union argues that none of the alleged nonfacts would "warrant or require a different result in the arbitration decision and award." Opposition at 8. Specifically, it contends the Arbitrator was correct in finding that NAGE determined an attorney was necessary for the appeal. Further, it discounts the second alleged factual mistake of the Arbitrator, noting that the Arbitrator merely hypothesized that had the attorney arrived at the grievant's workplace the Agency would have granted the grievant's request. Finally, the Union asserts that regardless of the reasons for the employee being transferred, those reasons have nothing to do with the Arbitrator's decision that the grievant is entitled to official time.
V. Analysis and Conclusions
When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).
First, the Agency argues that the MSPB's regulations limit an appellant to choosing a single representative. However, it is clear that the MSPB has allowed an appellant to be represented by more than one person. See Gilmore v. Dep't of the Army, 87 M.S.P.R. 579 (2001) (A Mr. Orr of Arkansas and a Mr. Harris of Mississippi represented the appellant); Uhlig v. Dep't of Justice, 86 M.S.P.R. 660 (2000) (A Mr. Smith of Hawaii and a Mr. Laing of California for the appellant); see also McDonald v. Dep't of Veterans Affairs, [ v57 p260 ] 86 M.S.P.R. 539 (2000) (Allowing multiple agency representatives in an appeal.) Accordingly, to the extent that the Agency relies on this argument, it is not persuasive.
Second, the Agency also contends that the grievant was never officially designated as the employee's representative for the MSPB appeal. It contends that absent this designation the grievant could not have been engaged in a representational function when he requested official time. We disagree.
The Agency's argument assumes that in order to receive official time under these circumstances, the grievant must be designated as the representative of record for the MSPB appeal. However, the Arbitrator's interpretation of the contract, to which we defer, did not find such designation necessary. See, e.g., Prof'l Airways Sys. Specialists, 56 FLRA 124, 125 (2000) (noting the deferential standard the Authority applies in reviewing an arbitrator's interpretation of a collective bargaining agreement). Similarly, the cited MSPB regulation does not prohibit an agency from granting official time to a union representative assisting in the preparation of an MSPB appeal. [n5] As the Agency does not contend that the award is contrary to any other law, rule, or regulation, the Authority denies this exception.
Turning to the Agency's remaining exception, to establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. United States Dep't of Health and Human Serv., Denver, Co., 56 FLRA 133, 135 (2000).
Under the first assertion, the Agency contends that the employee was free to choose the grievant as her representative of record before the Board and that the Arbitrator erred in concluding that an attorney was necessary for such representation. However, the Agency has not shown how this is a central fact underlying the award in light of the Arbitrator's determination that the grievant need not be the representative of record in order to qualify for official time under the parties' agreement.
The Agency's second contention challenges the Arbitrator's conclusion that had the NAGE attorney come to the grievant's workplace, instead of requesting the grievant go to his office, it would be hard to believe that official time would not have been granted. Award at 4. However, by its very nature this statement is not a finding of fact, but rather mere speculation. As such, the Agency's nonfact exception in this respect is unfounded.
Finally, the Agency argues that the employee was not transferred for whistle blowing reasons. Again, the Agency fails to show how the reason behind the employee's transfer is a central fact underlying this award. Accordingly, this exception is also denied.
The Agency's exceptions are denied.
Article 7, Section 6, subsections a & d reads:
Union representatives will be granted reasonable time off without charge to leave to perform representational functions. If time off is denied by any supervisor, the Union President has the authority to elevate the request to the Park Superintendent. The Superintendent or his/her designee will, when possible, respond to the request on the same day it is received but no later than three calendar days after received. Representational functions include:
a. Investigate, prepare and/or present all grievances, appeals, and Unfair Labor Practices.
. . . .
d. Third party proceedings as defined in the Civil Service Reform Act, i.e. meetings/hearings for Unfair Labor Practice (ULP), Merit Systems Protection Board (MSPB), Arbitration, Federal Mediation and Conciliation Service (FMCS).
Footnote # 1 for 57 FLRA No. 53
Footnote # 2 for 57 FLRA No. 53
The parties did not stipulate to an issue and the Arbitrator never framed one. However, it is clear from the record that the issue was whether the grievant was improperly denied official time for assisting in the appeal. Award at 1.
Footnote # 3 for 57 FLRA No. 53
The Arbitrator, based on the testimony of another agency official, did note the attorney's involvement in determining the grievant's eligibility for official time, and found her basis for denying the grievant's request was that another attorney represented the grievant before the MSPB and, therefore, the grievant's "request was not covered by the CBA." Award at 3.
Footnote # 4 for 57 FLRA No. 53
To the extent that the attorney's statements duplicate evidence in the record based on the testimony at the hearing, or findings in the Arbitrator's award, that evidence is properly before us and will be considered in rendering our decision.
Footnote # 5 for 57 FLRA No. 53