[ v60 p479 ]
60 FLRA No. 95
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
December 15, 2004
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 Marvin J. Feldman 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. [n1]
The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreements by relocating the Union office from Building 1 to Building 3.
For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
The parties entered into a Master Agreement (CBA) that contains a provision on Union office space. [n2] Afterwards, the parties disagreed on where the Union office should be housed at the Agency's Brecksville, Ohio facility (Medical Center). The Union preferred Building 1 while the Agency preferred Building 3.
Labor management meetings between the parties were held concerning various subjects, including where the Union office should be housed. The minutes of an April 13, 2001 meeting contain the following paragraph:
9. HRMS - The staffing area at Brecksville previously occupied by the Human Resources staff will be given to the [U]nion on a temporarily (sic) until the Childcare Program is ready to move into that area. Once child care has moved into the HRMS area, AFGE will move into the outside offices previously agreed to.
Award at 4. On June 20, 2001, the minutes were "signed off" by the then president of the local Union and the Medical Center Director. Id.
On June 20, 2001, the Medical Center Director sent the Union president a memorandum that state the following:
1. As you may know, Human Resources Management Service has now moved to Building 1, 4th floor, Brecksville campus. In accordance with your previous discussion with [management's Chief Operating Officer], I am prepared to offer you all of the interior space, to include room D104, but not D103, of room D115, Building 1 . . . in lieu of your current Brecksville space.
2. The one condition I need to impose on this agreement is that should the Brecksville Day Care Center begin operations . . ., I would need to give that space to them to fulfill a longstanding [ v60 p480 ] commitment. Should such a move become necessary, I would then be prepared to offer to the Union rooms D117/117A, D118, and D119, Building 1, Brecksville campus.
3. If this arrangement is acceptable to you, please contact [management's Chief Operating Officer] to work out the details.
Id. at 5.
No further action was taken by the parties regarding the Union office space until on or about May 6, 2003, when the Medical Center Director notified the Union that it would have to move to Building 3. The Union filed a grievance over the proposed move stating, in part, that "on June 20, 2001, the [Union] and Management signed and entered into an agreement for Union Office Space . . . located in Building 1 . . . with stipulations. This agreement was in accordance with the guidelines of Article 48 Section 1 of the Master Agreement." Id. at 6. The Union stated that the Agency's decision to move the Union's office to Building 3 "breached our prior and existing agreement between [the Union] and Management. Id. The Union requested that the Agency "[h]onor [p]revious and existing agreement on Union Office Space." Id. The grievance was denied and the matter was submitted to arbitration.
The Arbitrator found that Article 48, Section 1 of the CBA established Union office space at the Agency's facilities and in this regard the Agency complied with the CBA. However, the Arbitrator found that the "latest round of activity, which was the basis of the instant grievance" concerned the "housing site problem" and was based on the April 13, 2001 labor management meeting minutes which established Building 1 as the Union office as long as an Agency child care program is not ready to move into that area. Id. at 8, 4. According to the Arbitrator, the Agency asserted that "no agreement was made with the bargaining unit concerning the housing" of the Union. Id. at 9. In the Arbitrator's view, the issue of the "moment" was whether an "agreement was made with the bargaining unit concerning the housing of the [Union office] on the Brecksville campus" in Building 1. Id.
The Arbitrator found that "the parties signed off to . . . minutes of a labor management meeting which in fact established for the [U]nion a housing of its activities in Building 1[,]" which were verified by an unsolicited memorandum from the Medical Center Director. Id. The Arbitrator did not agree with the Agency's assertion that although "an agreement was reached on the date [the labor management minutes were] signed . . . it ha[d] no continuing validity." Id. at 10. The Arbitrator rejected the Agency's contention that "any promises made outside of a formal agreement [did] not meet the test of a continuing understanding between the parties . . . ." Id. at 8. The Arbitrator found that the April and June 2001 documents established an agreement (MOU) to house the Union in Building 1 unless a childcare center is established. The Arbitrator noted that "if the [Agency] desired a move from Building 1 by the [U]nion then one of . . . perhaps . . . three things" had to take place: (1) the Union could release the space, which it had not agreed to do; (2) the Agency could establish a child care center, which the Agency had chosen not to do; or (3) the parties could negotiate over the matter, which they had not sought to do. Id. at 10.
Based on his factual findings, the Arbitrator concluded that the labor-management minutes and the June 2001 memorandum both provide that the Union would be housed in Building 1. Therefore, the Arbitrator granted the grievance, and as a remedy directed the Agency to house the Union in Building 1 "commensurate with the contract and understanding of the parties." Id. at 11.
III. Positions of the Parties
A. Agency's Exceptions
According to the Agency, the issues concerned an "alleged violation of Article 48, Section One of the [CBA] and alleged breach of a[n] . . . MOU between the parties when there was a need to relocate Union office space at the Medical Center from Building  to Building [3.]" Exceptions at 2. The Agency asserts that the award does not draw its essence from the CBA because the Arbitrator found no violation of Article 48, Section One. According to the Agency, the Arbitrator "acknowledge[d] that the Agency complied with . . . Article 48, Section One[,]" but despite this finding, the Arbitrator sustained the grievance. Id. at 4.
The Agency further contends that testimony regarding Article 48 was disallowed. According to the Agency, the Arbitrator "restricted testimony to whether or not there was an agreement [MOU] between the parties, a matter totally removed from the provisions of Article 48, Section One." Id. at 5. The Agency refers to certain testimony in the record that it contends shows the Arbitrator would not allow testimony regarding Article 48.
The Agency also claims that the award is based on a nonfact. The Agency contends that the Arbitrator held that the Agency failed to negotiate the relocation to Building 3, but the record, including witnesses' testimony, minutes of negotiations, and a decision issued by a Regional Director of the Authority, shows that the Agency attempted to do so. The Agency asserts that the award was made in disregard of material facts in the record. The Agency states that the record indicates that there were negotiations and, thus, the binding aspect of the MOU was "moot." Id. at 10. [ v60 p481 ]
Finally, the Agency contends that the "award would nullify [m]anagement's right under [§ 7106(b)(1) of] the Statute to determine the means of performing work -- in this case the location of the Union [o]ffice." Id. at 11.
B. Union's Opposition
As stated earlier, the Union's opposition has not been considered.
IV. Analysis and Conclusions
A. The Award Draws Its Essence from the Parties' Agreements
The Agency essentially contends that the award does not draw its essence from the CBA because the Arbitrator found no violation of Article 48, Section One.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes 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 Dep't of Defense, Defense Logistics Agency, Defense Distrib. Depot, Red River, Texarkana, Tex., 56 FLRA 62, 67 (2000). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." United States Dep't of Labor (OSHA), 34 FLRA 573, 576 (1990) (OSHA).
The Agency has failed to demonstrate that the award is deficient on essence grounds. While acknowledging that the Agency had complied with Article 48, Section One as it concerns the establishment of Union office space, the Arbitrator found that the "latest round of activity" and the "basis of the instant grievance" was the labor management meeting minutes which provided for the location of the Union office in Building 1. Award at 8. In these minutes, the parties agreed that the "staffing area . . . previously occupied by the Human Resources staff will be given to the [U]nion on a temporarily (sic) until the Childcare Program is ready to move into that area." Id. at 4. The Arbitrator did not agree with the Agency's assertion that although "an agreement was reached on the date [the labor management minutes were] signed[,] . . . it [had] no continuing validity." Id. at 10. The Arbitrator interpreted this agreement along with the June 2001 memorandum and determined that the parties established a binding MOU to house the Union in Building 1.
The Agency does not challenge the Arbitrator's interpretation of the MOU. Rather, the Agency challenges the Arbitrator's factual findings that the parties entered into a binding side agreement/MOU as a further "round of activity" on the location of Union office space that was provided for under Article 48. Id at 8. The Agency has not pointed to any legal basis, or anything in the Arbitrator's factual findings, that shows the MOU is not a binding side agreement to Article 48, Section One or that it is not "in accordance with . . . Article 48, Section [One] of the Master Agreement." Id. at 6. Accordingly, the Agency has provided no support for its argument that the Arbitrator's interpretation of the MOU is irrational, implausible, or unconnected to Article 48, Section One. The Agency has not, therefore, established that the award fails to draw its essence from Article 48, Section One of the parties' CBA. See, e.g., United States Dep't of Commerce, National Weather Service, National Oceanic and Atmospheric Administration, 58 FLRA 490, 493-94 (2003).
B. The Agency Was Not Denied a Fair Hearing
We construe the Agency's contention that the Arbitrator disallowed certain testimony concerning Article 48, Section One and restricted testimony to whether or not there was an MOU between the parties on the Union's office location as an argument that the Arbitrator failed to provide the Agency a fair hearing.
An award will be found deficient on the ground that an arbitrator failed to conduct a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceedings so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, e.g., United States Dep't of the Army, Army Reserve Personnel, St. Louis, Mo., 35 FLRA 1200, 1205 (1990). Disagreement with an arbitrator's evaluation of evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995). Further, an arbitrator's limitation on the submission of evidence does not, by itself, demonstrate that the arbitrator failed to provide a fair hearing. See United States Dep't of the Navy, Philadelphia Naval Shipyard, 41 FLRA 535, 541 (1991). Also, issues involving an arbitrator's conduct at the hearing that could have been, [ v60 p482 ] but were not, raised before the arbitrator will not be considered absent extraordinary circumstances. See Bremerton Metal Trades Council, 59 FLRA 583, 587-88 (2004).
Here, the "basis of the instant grievance" and the issue before the Arbitrator was whether the MOU to the parties' CBA established Building 1 as the location for the Union office. Award at 8. In resolving this issue, the Arbitrator considered the MOU and evidence presented by the parties concerning the meaning of the MOU. Although the Agency alleges that the Arbitrator erred by disallowing certain testimony regarding Article 48, Section One, the Agency has not demonstrated that such evidence was pertinent and material to the issue of whether the MOU to the parties' CBA established Building 1 as the location for the Union office. The Agency does not allege that the Arbitrator took any other actions that affected the fairness of the proceedings as a whole. As such, the Agency has not demonstrated that the Arbitrator denied it a fair hearing.
C. The Award Is Not Based on a Nonfact
To establish that an award is based on nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594.
The Agency asserts that the award is based on a nonfact because the Arbitrator held that the Agency failed to negotiate the relocation of the Union office to Building 3 while the record evidence shows that the Agency did attempt to do so. However, whether negotiations had been attempted on the relocation of the Union office was not a central fact in the Arbitrator's decision to sustain the grievance, which concerned the Agency's "breach" of the parties' "prior and existing agreement [MOU]." Award at 6. The Arbitrator found the issue of the "moment" was whether an agreement was made with the Union concerning the housing of the Union office at the Agency's facility in Building 1. Id. at 9. The Arbitrator found that such an agreement was established between the parties and the Agency violated this agreement when it relocated the Union's office. In view of these findings by the Arbitrator in sustaining the grievance, the Agency has not demonstrated that the disputed factual finding was a central fact underlying the award. Therefore, the Agency's argument does not provide a basis for finding the award deficient. See NAGE, Local R1-109, 58 FLRA 501, 503 (2003).
D. The Award Is Not Contrary to Management's Rights under § 7106(b)(1) of the Statute
The Agency contends that the "[a]ward would nullify [m]anagement's right under [§ 7106(b)(1)] the Statute to determine the means of performing work - in this case the location of the Union office." Exceptions at 11.
The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority has held that union office space is a substantively negotiable condition of employment. See United States Geological Survey, Caribbean District Office, San Juan, Puerto Rico, 53 FLRA 1006, 1039 (1997) and the cases cited therein. See also NTEU, Chapter 83, 35 FLRA 398, 413 (1990) and AFGE, Local 12, AFL-CIO, 25 FLRA 979, 981 (1987) (proposals concerning space allocation, and the arrangement of space are negotiable unless an agency demonstrates that the proposals are inconsistent with applicable law or regulation); AFGE, Local 3302, 37 FLRA 350, 357 (1990) (as agency did not demonstrate a connection between the proposed use of space and the performance of the agency's work, proposal requiring agency to establish a private interviewing room did not concern the methods and means of performing work within the meaning of § 7106(b)(1) of the Statute).
In this case, although the Agency claims that the award affects its right to determine the methods and means of performing its work under § 7106(b)(1) of the Statute, the Agency has not explained or shown in what manner the location of the Union's office affects this right. Therefore, we find that the Agency has not demonstrated that the award affects its rights under § 7106(b)(1) of the Statute. Further, even assuming that the Arbitrator was enforcing a provision negotiated under § 7106(b)(1), such provisions are enforceable in arbitration. See, e.g., United States Dep't of the Treasury, Internal Revenue Service, Wash., D.C., 56 FLRA 393, 395 (2000).
The Agency's exceptions are denied.
Footnote # 1 for 60 FLRA No. 95 - Authority's Decision
Because the Union's opposition did not comply with § 2429.25 of the Authority's Regulations, the Authority issued an Order directing the Union to comply with that regulation as well as 5 C.F.R. § 2429.27. See July 14 Order. Additionally, the Order stated that the Union's failure to comply with the Order may result in the Authority not considering its opposition. The Union failed to respond to this Order and on August 12, 2004, the Authority issued another Order directing the Union to show cause why the Authority should not disregard its opposition for failure to comply with the July 14 Order and to comply with the Authority's Regulations.
The Union filed a timely response, but did not adequately comply with the August 12 or the July 14 Orders. Because the Union has refused to comply with the Authority's Orders, the Union's opposition will not be considered.
Footnote # 2 for 60 FLRA No. 95 - Authority's Decision
Section 1 - Local Union Office Space
A. Management recognizes the importance and value of the Union's mission and purpose. Accordingly, Management agrees to furnish office space to the Union appropriate for carrying out its representational and partnership duties in locations easily accessible to employees and private citizens and of size, furnishings, and decor commensurate with other administrative offices within the facility.
B. Each office will be equipped with adequate telephone lines for FTS, fax and computer capabilities.
C. In addition, the Department will provide District and National representatives with office space or suitable arrangements to carry out their representational responsibilities under this Agreement.
Award at 3 and 4.