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60 FLRA No. 127
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
February 25, 2005
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 John M. Skonier filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the Agency did not violate the parties' collective bargaining agreement or memorandum of agreement (MOA) by refusing to grant the Union President official time to represent a certain bargaining unit employee and by refusing to allow another employee to be appointed acting steward for more than 10 days.
For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The parties entered into an MOA regarding the use of official time for union stewards. [n1] Subsequently, the Union President requested official time to represent an employee who was not located in her organizational group and the Agency, relying on the MOA, refused the request. The Agency also refused to allow the Union President to appoint a particular employee as acting steward for a period beyond the 10-day emergency period set forth in the MOA.
The Union filed grievances alleging that the Agency's actions violated the parties' agreement and the MOA. The grievances were unresolved and submitted to arbitration. The Arbitrator framed the issues as follows: "[W]hether the [Agency] violated the contract by refusing to allow [the] Union President . . . official time to represent an employee who was not in her Organizational Group" and "[W]hether the [Agency] violated the . . . agreement by refusing to allow the appointment of [the employee] as an Acting Steward for an Organizational Group other than the Organizational Group of his employment." Award at 6-7.
With regard to the first issue, the Arbitrator concluded that the Agency did not violate the parties' agreement or the MOA by refusing to allow the Union President official time to represent a unit employee who was not located within her organizational group. In reaching this conclusion, the Arbitrator found that the MOA provides that union officers are to be granted official time for representational duties only when they are officially designated as a union steward. The Arbitrator also found that even though the Union President testified that she had, on a few occasions, represented unit members outside her organizational group, Agency testimony established that the Agency was not aware of this. In addition, the Arbitrator noted Agency testimony stating that a former Union President represented unit members outside his organizational group only after receiving permission from the Agency under Article 6, § 2 of the agreement. [n2]
With regard to the second issue, the Arbitrator concluded that the Agency did not violate the MOA by refusing to allow a particular employee to be appointed as acting steward for more than 10 days. In this connection, [ v60 p642 ] the Arbitrator found that acting stewards may be designated only in emergencies. The Arbitrator also found that the particular employee previously designated could not continue to be designated for the organizational group in dispute because this employee had been transferred out of that group and the MOA states that "[a] steward will represent only those employees in the same Organizational Group . . . ." Id. at 5.
The Arbitrator also rejected the Union's argument that the MOA should be rescinded because it caused a violation of the duty of fair representation. In this regard, the Arbitrator found that "neither the collective bargaining agreement nor the MOA den[ies] [f]air [r]epresentation to any bargaining unit member." Id. at 11.
Based on the foregoing, the Arbitrator denied the grievances.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that both the former and current Union Presidents represented employees outside their organizational groups and that the Arbitrator ignored this past practice in rendering his award.
In addition, the Union asserts that, by precluding the Union from designating the same person as acting steward for more than 10 days, the award subjects the Union to "probable [duty of fair representation] charges" for failure to represent certain bargaining unit members and has the "strong potential for discrimination and disparate impact[.]" Exceptions at 4, 6. In this regard, the Union contends that § 7114(a)(1) of the Statute requires it to represent all unit employees without discrimination and without regard to labor organization membership. [n3] According to the Union, the manner in which the Arbitrator enforced the MOA deprives unit members of representation in certain circumstances and makes the Union "open" and an "unwilling accomplice" to a charge that it violated its duty of fair representation. Id. at 2.
Specifically, the Union contends that the award deprives employees of representation if there is no primary steward within their organizational group and no one is available to appoint as acting steward. According to the Union, it has had difficulty finding employees located in the organizational group in dispute to serve as a steward. The Union argues that an agency and union jointly violate the duty of fair representation by entering into an agreement that discriminates against unit employees who are not union members.
Finally, the Union contends that a union's right to designate representatives may be denied only where an agency can demonstrate special circumstances. See id. at 8, 15 (citing Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 54 FLRA 1502, 1513 (1998) (Fed. Bureau of Prisons)).
B. Agency's Opposition
The Agency contends that the Union's exceptions do not establish that the award is deficient. In this regard, the Agency asserts that it did not deny unit employees their right to representation. Rather, according to the Agency, it merely denied the Union President and the employee whom the Union President wanted to appoint as acting steward official time to perform representational duties. According to the Agency, it acted consistent with the MOA.
IV. Analysis and Conclusions
A The award does not fail to draw its essence from the parties' agreement.
Where a party argues that an award is deficient because the Arbitrator failed to recognize a past practice that modifies a contractual requirement, the Authority considers the issue a matter of contract interpretation. See Prof'l Airways Sys. Specialists, 56 FLRA 124, 125 (2000).
In reviewing an Arbitrator's interpretation of an agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See United States DOJ, Fed. BOP, Mgmt. and Specialty Trng. Ctr., Aurora, Colo., 56 FLRA 943, 944 (2000); AFGE, Local 3369, 55 FLRA 1074, 1077 (1999). Under this standard, the Authority will review the award to determine whether it is deficient as failing to draw its essence from the parties' agreement. See id. The award will be found deficient on this ground when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award 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) the award does not represent a plausible interpretation of the agreement; or [ v60 p643 ] (4) the award evidences a manifest disregard of the agreement. See id.
The MOA provisions in dispute state that "[a] steward will represent only those employees in the same [o]rganizational [g]roup as that of the steward" and that "Union officers shall not perform the duties of steward unless they are officially designated as stewards by the Union . . . ." Award at 5-6. In addition, the MOA provides that "official time for other stewards . . . may be permitted" upon request. Id. at 3. The Arbitrator found that the former Union President represented employees outside his organizational group only with permission from the Agency and that the Agency was not aware that the current Union President engaged in this practice. See id. at 9-10. Thus, the Arbitrator found that there was no established practice of permitting Union officers to represent employees outside their organizational groups without permission and, consistent with this, concluded that the Agency did not violate the parties' agreement or the MOA. As the Arbitrator's conclusions are not irrational, unfounded, or implausible, the Union has failed to establish that the award is deficient on essence grounds. As such, we deny this exception.
B. The award is not contrary to law.
When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's factual findings. See id.
Section 7114(a)(1) of the Statute states that a union "is responsible for representing . . . all employees in the unit . . . without discrimination and without regard to labor organization membership." The Authority assesses claims that a union has discriminated on the basis of union membership by determining whether the union's disputed activities were undertaken in the role of exclusive representative and whether the union discriminated on the basis of union membership. See NFFE, Local 1827, 49 FLRA 738, 746 (1994). Where union membership is not involved, the Authority determines whether a union "acted arbitrarily or in bad faith" and whether the action "resulted in disparate or discriminatory treatment of a bargaining unit employee." United States Air Force, Loring AFB, Limestone, Me., 43 FLRA 1087, 1094 (1992).
The disputed MOA provision provides for the appointment of acting stewards in emergency situations. There is no claim, or reason to conclude, that by entering into the MOU, the Union discriminated against unit employees on the basis of union membership or acted arbitrarily or in bad faith. Moreover, although the Union contends that the award subjects the Union to "probable [duty of fair representation] charges" for failure to represent certain bargaining unit members and has the "strong potential for discrimination and disparate impact," nothing in the record indicates any specific situation where an employee has been unable to obtain representation. Exceptions at 4, 6. As such, the Union's duty of fair representation claim is purely speculative.
We note, in this regard, that nothing in the record indicates that the Union alleged, or the Arbitrator found that the issues involved, an unfair labor practice under the Statute. To the contrary, the issue, as framed and addressed by the Arbitrator, concerned only whether the Agency violated the parties' agreement or the MOA. In fact, the Union concedes that the grievance "exclusively focused on the MOA." Id. at 3. As such, there is no basis for the Authority to address a statutory duty of fair representation issue. We also note that denying the Union's exception does not address whether, in particular circumstances, an agreement might deprive employees of representation in a manner that violates the Statute.
Finally, the Union's argument that a union's right to designate its representatives cannot be denied absent special circumstances is misplaced. In this regard, contract provisions limiting a union's right to designate representatives are enforceable. See United States Dep't of the Air Force, Randolph Air Force Base, Tex., 45 FLRA 727, 732 (1992); see also IRS, Wash. D.C., 47 FLRA 1091, 1103 (1993) (agency's refusal to recognize a designated steward based on a contract provision may provide defense to an unfair labor practice charge). The Union cites, and the record discloses, no support for finding that such contract provisions may be enforced only in special circumstances. There is, therefore, no basis for the Union's claim that the Arbitrator was required to find special circumstances in this case.
Based on the foregoing, we find that the award is not contrary to law.
The Union's exceptions are denied.
Footnote # 1 for 60 FLRA No. 127 - Authority's Decision
In the event of an emergency the Union may replace a steward on a temporary basis (up to ten days) by notifying the [Agency] . . . . A steward will represent only those employees in the same Organizational Group as . . . the steward. Only stewards designated on an emergency basis may represent employees from outside their Organizational Group.
. . . .
Union officers shall not perform the duties of steward unless they are officially designated as stewards by the Union . . . .
Award at 5-6.
Footnote # 2 for 60 FLRA No. 127 - Authority's Decision
Footnote # 3 for 60 FLRA No. 127 - Authority's Decision
Under § 7114(a)(1) "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership."