[ v60 p184 ]
60 FLRA No. 41
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
NATIONAL INSTITUTES OF HEALTH
OF GOVERNMENT EMPLOYEES,
August 25, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn 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 to the Agency's exceptions.
The Arbitrator denied the grievance and found that the Agency had not violated Article 37 of the parties' agreement when it refused to broadcast a Union announcement. For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Union, pursuant to Article 37, Section 5 of the parties' agreement, sought permission to present an announcement from the Union's President over the intercom at the National Institutes of Health campus. [n1] The announcement read:
[AFGE] is the Federal government's largest labor union, representing over 600,000 employees of the Federal government. AFGE Local 2419 has been established on the NIH campus representing employees since 1962. We represent and assist employees in every area of employee labor relations, negotiations, grievances, appeals, hearings, partnerships, A-76 reviews. AFGE Local 2419, a union of employees, by employees, for employees, join us today. The future is ours! AFGE 2419 may be reached at 496-0594 or at their web site www.afge2419.org. Richard Laubach, President.
Award at 6.
The Agency, referring to an unwritten policy on minimizing patient disturbances, denied the Union's request because the announcement could possibly disturb patients and contained information that patients would have no interest in. Id. at 8-9. The Union filed a grievance, which was subsequently submitted to arbitration. The issue before the Arbitrator was:
Did the Agency violate Article 37, Section 5 of the Negotiated Agreement when it refused to broadcast a message requested by the Union? If so what shall be the remedy?
Id. at 2.
In the award, the Arbitrator determined that the message requested by the Union could be restricted "in accordance with existing policies and procedures." Id. at 10. The Arbitrator found that the Agency had an unwritten policy that in general terms would prohibit intercom announcements that were of no interest to patients.
However, the Arbitrator also found that the Agency had allowed announcements over the intercom that have been "explicitly directed to employees" such as a vendor expo announcement and an employee's group "[t]own meeting" announcement. Id. at 11. In this respect, the Arbitrator determined that the Agency's own actions had undermined its policy and, accordingly, that the policy would not preclude the Union from transmitting [ v60 p185 ] messages geared primarily to employees because "there is no proof that interest in Union-related activities would be of less interest to patients than a vendors fair or vacation package presentation." Id. As such, the Arbitrator found that the only portion of the Union's announcement that was improper under the policy was the Union's solicitation for membership. In arriving at this conclusion, the Arbitrator found that patients would have no interest in joining the Union but noted that they may have an interest in "learning about it [the Union]." Id. at 12. Accordingly, the Arbitrator found that the Agency did not violate Article 37 of the parties' agreement, but based his finding on a "narrower ground" than argued by the Agency. Id. at 13.
III. Positions of the Parties
A. Agency's Exception
The Agency alleges that the "Arbitrator exceeded his authority when he based his decision on a hypothetical issue that was not submitted to arbitration[.]" Exceptions at 6. In this regard, the Agency claims that the Arbitrator should have concluded his analysis once he determined that Article 37 of the parties' agreement was not violated. Id. at 6-7. Instead, it argues that the Arbitrator found that the Agency could not "unilaterally deny the Union access to the PA system to broadcast a general informational announcement" and, in so doing, the "Arbitrator based his award on a hypothetical scenario, i.e., whether the Agency could properly deny the Union access to the PA system if the Union had submitted a modified announcement." Id. at 2-3.
Moreover, the Agency argues that the Arbitrator's award is based on a non-fact in that the Arbitrator found that patients may be interested in learning about the Union. Exceptions at 7. It contends that the parties never disputed whether patients were interested in learning about the Union and that the Arbitrator failed to differentiate between employee directed announcements that concerned scheduled activities or benefits that are open to patients and the Union's announcement which "does not concern an activity or benefit available to patients." Id. at 8. As such, it contends that if not for this erroneous finding the award would have resulted in a different outcome.
B. Union's Opposition
The Union states that "the Arbitrator . . . did not exceed his authority[.]" Opposition at 2. It argues that the Arbitrator can craft his decision and remedy as he deems appropriate and that his decision is responsive to the patient policy issue raised by the Agency. Id. at 3.
Additionally, the Union argues that the Arbitrator "made his ruling based on the facts presented before him at the hearing." Opposition at 2. The Union argues that patients can join the Union as associate members and that its activities are open to patients along with access to its website. Id. at 4. As such, it contends that the Authority should dismiss the Agency's exceptions in their entirety. [n2] Id. at 5.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issue to be resolved in a grievance. [n3] See United States Dep't of Transp., Fed. Aviation Admin., Wash., D.C., 55 FLRA 322, 325 (1999). Moreover, the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. Id.
The Agency claims that the Arbitrator exceeded his authority by addressing whether the Agency would be required to approve a modified announcement. Exceptions at 6-7. We disagree for the reasons below. [ v60 p186 ]
First, the Arbitrator never actually ordered the Agency to approve a modified announcement from the Union or to play such a modified announcement over the intercom as claimed by the Agency. Award at 14. While it is true that the Arbitrator found that the only valid reasons for rejecting the announcement were based on the Union's inclusion of membership solicitation, the Arbitrator, nonetheless, limited his ultimate decision to denying the grievance.
Second, the Arbitrator resolved the issue before him, i.e., whether the Agency violated Article 37. Accordingly, while the Arbitrator also stated his reasoning as to why the Agency did not violate Article 37, the Arbitrator did not exceed his authority.
B. The Award is Not Based on a Non-fact
To establish that an award is based on a non-fact, 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. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).
Here, the award resulted in the Arbitrator determining that the Agency did not violate Article 37 of the parties' agreement. As such, even if we were to assume that the Arbitrator's finding over patient interest was a central fact and was erroneous, the Agency has not demonstrated how this alleged non-fact would have otherwise required the Arbitrator to reach a different result given that his ultimate conclusion, that the Agency did not violate Article 37, is the same conclusion that the Agency argued was appropriate. See, e.g., Lowry, 48 FLRA at 593.
While the Agency claims that the issue of whether patients would be interested in learning about the Union was never disputed at the hearing, it is clear from the Arbitrator's award that the Union did argue that patient interest in its announcement was at least similar to other employee directed announcements permitted under Article 37. Award at 8. With this argument being made, it is clear that the Arbitrator determined that patients would have similar interest in the Union's announcement to those employee group announcements already allowed under Article 37. Therefore, the Agency has failed to establish that the Arbitrator's finding that patients would be interested in this announcement is "clearly erroneous" and thus a non-fact. Lowry, 48 FLRA at 593. Accordingly, the award is not based on a non-fact.
The Agency's exceptions are denied.
Footnote # 1 for 60 FLRA No. 41 - Authority's Decision
The Union will also be allowed to use all public access bulletin boards for Union related material. Such postings will be allowed to remain up for a period of not less than fourteen (14) calendar days. The Union will be responsible for placement and removal of all such postings and will maintain all such postings in a professional manner. The Union will be allowed to use existing public announcement systems in accordance with existing policies and procedures.
Award at 2.
Footnote # 2 for 60 FLRA No. 41 - Authority's Decision
The Union also argues that the Agency's exceptions are an "abuse of the appeals process and should warrant further investigation and disciplinary action against the individuals abusing the system in such a fashion." Opposition at 5. This claim does not constitute an exception or an opposition to either of the Agency's exceptions and, therefore, will receive no additional consideration from the Authority in this proceeding.
Footnote # 3 for 60 FLRA No. 41 - Authority's Decision
Neither the Arbitrator, nor the parties, indicate whether the issue was stipulated by the parties or formulated by the Arbitrator. Award at 2. In any event, even if the issue was stipulated by the parties, the Authority will afford the Arbitrator's interpretation of the stipulated issue the same deference we afford an arbitrator's interpretation of a collective bargaining agreement. See United States Dep't of Defense, Defense Contract Management Agency, 59 FLRA 396, 402 (2003) (Member Pope dissenting as to other matters).