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59 FLRA No. 92
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
ROBINS AIR FORCE BASE, GEORGIA
OF GOVERNMENT EMPLOYEES
December 22, 2003
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Michael A. Berzansky filed by the Agency under § 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.
The Agency's grievance in this case alleged that the Union breached a contractual duty of good faith and violated various negotiated agreements. The Arbitrator sustained the grievance in part and denied the grievance in part. For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The issues in the Agency's grievance involved allegations that the Union: (1) repudiated an agreement providing for grievance mediation; (2) attempted to pressure witnesses to change their statements; (3) allowed Union representatives on 100% official time to represent employees outside the unit; and (4) made malicious attacks on management officials in the Union newspaper. [n1] The parties were unable to resolve the issues in the grievance and submitted them to arbitration.
Because the parties could not agree on a statement of the issue in the grievance, the Arbitrator framed it as follows:
Did the Union breach any law or contract provisions as outlined in the four grievances as submitted? If so, what shall the remedy be?
Award at 2.
As to the second issue relating to "witness tampering," the Arbitrator framed the question presented as concerning whether that issue stated a grievance within the meaning of § 7103(a)(9) of the Statute. [n2] He stated, in this regard, that he was unable to determine, as to the "witness tampering" issue, which provision of the contract had been violated or what law affecting conditions of employment had been misapplied. He noted that the parties' collective bargaining agreement provided the Agency the right to discipline and concluded that, if the Agency determined that Union representatives were intentionally interfering with its investigation in violation of the parties' agreement, it could have initiated disciplinary action against those representatives. The Arbitrator reviewed the Agency's evidence as to "witness tampering" and stated his belief that the Agency was trying to avoid a problem "by seeking action against the Union rather than against any individual." Award at 18. He dismissed this portion of the grievance. [ v59 p543 ]
With respect to the portion of the grievance relating to a Union official on 100% official time using some of that time to represent non-unit employees, the Arbitrator noted that, under the parties' agreement, an employee on 100% official time must record the number of hours per pay period that is used for union business, annual leave, or other pay or non-pay status. According to the Arbitrator, the Union Vice-President, who was the subject of the Agency's complaint, merely recorded on his time and attendance sheets an eight hour day. The Arbitrator noted that: (1) there was no evidence as to whether the Vice-President worked an alternative work schedule, which would have provided him with flexibility as to when he worked; and (2) a previous arbitration award involving the same contract "upheld a practice of full-time representatives" on alternative schedules flexing their hours "so that they [could] represent employees outside the bargaining unit." Award at 18. Because there was no evidence as to whether the Vice-President worked an alternative work schedule, the Arbitrator concluded that the Agency failed to demonstrate that the Vice-President violated provisions of the parties' agreement concerning use of official time. Instead, the Arbitrator stated that, if the Agency was able to document its claims of misuse of official time, it should have disciplined the Vice-President. As to the Agency's request that the Union reimburse the Agency for the official time allegedly misused by the Union's representatives, the Arbitrator stated that "[t]he Union cannot be held liable for the activities of its representatives with respect to violations" of the official time provisions of the parties' agreement. Award at 19. He dismissed this portion of the grievance.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award is contrary to law because the Arbitrator ruled that "the Agency could not file a grievance against the Union for the reasons stated in the grievance" due to the fact that "the actions complained of were committed by employees of the Agency who also served as full-time Union representatives." Exceptions at 3. According to the Agency, the Authority has held that a union "is liable for the actions of the representatives and officials [of the union] that are committed while in a representational activity." Id. (citing United States Air Force, Loring AFB, Limestone, Me., 43 FLRA 1087 (1992) (Loring AFB)). The Agency maintains that the employees named in the grievance were acting on behalf of the Union and that the Union is therefore liable for their actions. The Agency also asserts that, as a matter of law, the Agency's ability "to file a grievance against the Union should not depend on the employment status of the Union official who causes the grievance." Exceptions at 4.
As to the Arbitrator's statements that the Agency should have taken disciplinary action against the employees acting as Union representatives, the Agency argues that its ability to discipline a Union official for conduct involved in a representational activity is limited to flagrant misconduct. The Agency contends that, under the Arbitrator's holding, it would be without recourse in situations like those in this case if it could not file a grievance against the Union and could not discipline a Union representative because his or her conduct did not constitute flagrant misconduct.
As to the witness tampering issue, the Agency notes that the Arbitrator found that characterizing one Union official's comments as a veiled threat of reprisal was only the employee's interpretation of what the Union official said. Exceptions at 6. The Agency also contends that the Arbitrator failed to apply the proper legal standard under § 7116(b)(1) of the Statute to his analysis of those comments. According to the Agency, the Arbitrator should have focused on whether the employee reasonably could have drawn a coercive inference from the comments. Id. at 5-6. The Agency asserts that application of that standard would have led to the conclusion that the Union official improperly coerced the employee and the Arbitrator erred as a matter of law in not so concluding. Id. at 6.
With respect to the issue of the Union official's representation of non-unit employees, the Agency notes that there was no evidence that the official worked an alternative work schedule. Id. at 6-7. The Agency asserts that it demonstrated that he did not work such a schedule. Id. at 7. The Agency claims that, because the Arbitrator found that he did work such a schedule, the award is based on a non-fact and is deficient. Id. at 8.
B. Union's Opposition
The Union maintains that the Agency misconstrues the Arbitrator's award by arguing he failed to properly understand his authority to hold the Union liable for the actions of its representatives. According to the Union, the Arbitrator ruled against the Agency both because he found that the Agency's complaints did not fit within the definition of grievance under the Statute and because the Agency failed to prove its claims of witness intimidation by Union representatives.
As to the Agency's arguments with respect to the Arbitrator's award concerning the Union official representing non-unit employees, the Union contends that [ v59 p544 ] those arguments amount to nothing more than the Agency disagreeing with how the Arbitrator weighed the evidence and the burden of proof that he placed on the Agency. According to the Union, the Arbitrator found that the Agency had not demonstrated the dates and hours on which the Union representative spent official time on such representation. The Union asserts that the Agency's disagreement with the Arbitrator's findings do not establish that the award is deficient because it is based on a nonfact.
IV. Analysis and Conclusions
A. The Agency has not Demonstrated that the Award is Deficient because it is Contrary to Law
The Authority reviews the question of law raised by the Agency's exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
Authority precedent makes clear the Arbitrator's legal error in concluding that the Union could not be held accountable for the actions of its representatives and officials. See, e.g., Loring AFB. Hence, to the extent that misuse of official time or witness tampering allegations were properly before the Arbitrator, the Union was subject to liability. [n3] However, notwithstanding this error, the Arbitrator's award is not contrary to law because the Arbitrator found as a matter of fact that the alleged witness tampering and misuse of official time were not proven by the Agency. Consequently, there is no basis for assigning liability to the Union for the actions of its representatives.
Additionally, as to the Agency's contention regarding the test for reviewing the alleged coercive statements, the Arbitrator's award indicates that the grievance alleged a violation of Article 5, Section 5.01(b) and Article 3, Section 3.04(a) of the parties' agreement and not a violation of § 7116(b)(1) of the Statute. There is no evidence in the record that the Agency claimed before the Arbitrator that the Union committed a violation of § 7116(b)(1) of the Statute. Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not presented to the Arbitrator. As the Agency's contention as to a violation of § 7116(b)(1) was not raised before the Arbitrator, consistent with our regulations, we do not consider that contention.
Accordingly, we deny the Agency's contrary to law exceptions.
B. The Agency has not Demonstrated that the Award is Deficient because it is Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must show 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 AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at the hearing. Id. (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834 843 (6th Cir. 1985)).
The Agency claims that it presented evidence demonstrating that the Union Vice-President did not work an alternative work schedule and the Arbitrator's finding to the contrary is a nonfact. However, the Arbitrator did not find to the contrary, he found that he could not determine from the evidence whether the Vice-President worked an alternative work schedule or not and concluded that the Agency had not established its case. Thus, it is clear that the nature of the Vice-President's schedule was disputed before the Arbitrator. Consequently, the Agency cannot challenge as a nonfact the Arbitrator's finding that the Union did not violate the parties' agreement by allowing the Vice-President to represent non-unit employees. See AFGE, Local 2128, 58 FLRA 519, 522 (2003).
Accordingly, we deny the Agency's nonfact exception.
The Agency's exceptions are denied.
Footnote # 1 for 59 FLRA No. 92 - Authority's Decision
As to the first issue, the Arbitrator found that the Union repudiated the parties' Memorandum of Agreement establishing a grievance mediation procedure and sustained the grievance. The Union did not except to this portion of the award and it will not be considered further in this decision. The Arbitrator denied the grievance as to the fourth issue and, as the Agency did not except to that portion of the award, it will not be considered further.
Footnote # 2 for 59 FLRA No. 92 - Authority's Decision
§ 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(9) "grievance" means any complaint--
(A) by any employee concerning any matter relating to the employment of the employee;
(B) by any labor organization concerning any matter relating to the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[.]
Footnote # 3 for 59 FLRA No. 92 - Authority's Decision
Private sector precedent notes that union coercion of witnesses constitutes an unfair labor practice under § 8(b)(1) of the National Labor Relations Act, a provision which is similar to § 7116(b)(1) of the Statute. See, e.g., United Mine Workers of America, Local 1058 (Beth Energy Corp.) and Dowl Johnston, 299 NLRB 389, 390 (1990) (union discipline of member for testifying on behalf of employer in grievance proceeding).