U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39 (Authority decision, June 28, 1990)

Final FLRA decision. The Authority denied exceptions to an arbitral award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. The arbitrator's denial of the suspension grievance remains in place.

Plain-English summary

The Norfolk Naval Aviation Depot suspended its chief union steward for three days after he left to assist an employee at an off-depot payroll office without obtaining oral permission from his supervisor. The arbitrator denied the union's grievance under the agreement's permission rule. IAM Local 39 argued that the arbitrator mishandled official time, changed the agreement, shifted the burden of proof, and ignored a practice allowing visits to off-depot facilities. The Authority found no conflict between the agreed permission rule and the statute governing negotiated official time. It also held that the arbitrator stayed within the issue he framed and reasonably interpreted the agreement, so the suspension award stood.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and negotiated official time under 5 U.S.C. § 7131(d).
• Outcome: Union exceptions denied; three-day suspension upheld.
• Key point: The agreement required the chief steward to obtain oral permission before leaving his work area for union duties.

Full text (FLRA public release)

[ v36 p217 ]
36:0217(25)AR

The decision of the Authority follows:

36 FLRA No. 25

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE
NAVY

NAVAL AVIATION
DEPOT

NORFOLK, VIRGINIA

(Agency)

and

INTERNATIONAL ASSOCIATION OF
MACHINISTS

AND AEROSPACE WORKERS, LOCAL
39

(Union)

0-AR-1696

DECISION

June 28, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Joseph M. Stone filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union's grievance alleged that the Agency violated the parties' collective bargaining agreement by imposing a 3-day suspension on the Chief Union Steward without "just cause." The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has not demonstrated that the Arbitrator's award is deficient under section 7122 of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, an employee at the Norfolk Naval Aviation Depot, is the Union's Chief Steward. The parties' collective bargaining agreement provides that the Chief Steward, after obtaining oral permission from his supervisor, is entitled to leave his assigned shop in order to perform Union activities while on duty.(1) The parties' collective bargaining agreement also provides that Union officials are required to account for conducting Union activities on duty time by filling out a form and that, for Union officials other than the Chief Steward, the form is used as written permission for those Union officials to conduct Union activities on duty time.(2)

On November 19, 1987, the grievant left the Depot and went to the Depot's Payroll Office to aid a Union member having a wage problem. Subsequently, the grievant was suspended for 3 days for leaving the Depot without oral permission. A grievance was filed over the 3-day suspension. When the grievance was not resolved, it was submitted to arbitration. Because the parties did not stipulate the issues to be resolved, the Arbitrator stated the issue as: "[o]n November 19, 1987, did the Grievant have 'oral permission' from his supervisor, Clark, to visit W-143 [Payroll Office] to aid a Union member having a wage problem?" Award at 19.

The Arbitrator stated first that an issue as to "whether a first-line supervisor can question the use of official time by a Union representative" was the subject of a concurrent arbitration proceeding and was not, therefore, appropriate for resolution. Id. at 18. Second, the Arbitrator stated that "the appropriateness of the denial of official time to Union representatives to conduct representational duties at Payroll and the Base Medical Clinic--off-Depot buildings--need not be determined under the circumstances of this case since the location of the performance of representational duties is of no significance if oral permission has not been granted to perform such duties." Id. at 19.

The Arbitrator also heard testimony concerning the use of an "Accountability Form" to document official time used by Union representatives in conducting Union business. However, the Arbitrator did not address the use of the Form in his conclusion, but instead determined that the grievant was required to obtain oral permission prior to leaving the Depot. The Arbitrator stated that "[h]owever difficult it may be for the Union to demonstrate that a Union representative has 'oral permission' . . . the burden of such demonstration is on the Union, and in this case I am not prepared to conclude that the Union has met its burden." Id. at 20. The Arbitrator concluded that, because the grievant did not have the necessary oral permission to perform representational duties at the off-Depot location, a 3-day suspension was not unreasonable. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exceptions

The Union contends that "[t]he Arbitrator has exceeded his authority by modifying the terms and conditions of the Parties['] Collective Bargaining Agreement." Union's Exceptions at 1. The Union also contends that "the Arbitrator breached Federal Law, 95-454, when he refused to consider the Unfair Labor Practice aspects of this case." Id.

The Union argues that the Arbitrator "unilaterally modified the negotiated Agreement's Chief Stewards accountability form by ruling that the Supervisor's signature did not indicate approval of the time and information provided by the Chief Steward." Id. The Union claims that the Accountability Form was negotiated and agreed to by the parties in accordance with the provisions of Article VII.

The Union also argues that the grievant was disciplined for his activity as the Union's Chief Shop Steward. In addition, the Union maintains that the Arbitrator's requirement that the Union show that the grievant had "oral permission" to conduct Union activities at the payroll office improperly shifts the burden of proof from the Agency to the Union.

The Union asserts further that the Arbitrator's award does not draw its essence from the Collective Bargaining Agreement because the award "ignored a long standing (in excess of 8 years) practice of Union Representatives being allowed official time to conduct representational duties at support facilities[,] payroll office and the dispensary, located on the Naval Base Complex, which includes Naval Aviation Depot." Id. Moreover, the Union asserts that the Arbitrator ignored evidence and testimony by Union representatives who previously conducted Union activities at the payroll office and the medical dispensary.

Furthermore, the Union asserts that the Arbitrator allowed the Activity to implement a policy "that changed a long standing past practice without required negotiations . . . by denying Union Representatives the right to represent Unit employees at the payroll office and at the Dispensary[.]" Id. at 1-2. The Union notes that testimony by two supervisors indicated that even employees who are not Union Representatives are granted "time on the clock" to visit the payroll office and the medical clinic. Id. at 2.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

A. The Union Has Not Demonstrated That the Award Is Contrary to Law, Rule, or Regulation

The Union asserts that the Arbitrator violated the Statute "when he refused to consider the Unfair Labor Practice aspects of this case." Union's Exceptions at 1. Although the Union does not specify the unfair labor practices it claims were committed by the Agency, it appears that the Union is asserting that the award is deficient because it sustained discipline for activities undertaken by the grievant on behalf of the Union. Further, the Union refers to the exhibits admitted at the hearing and testimony offered by other Union representatives that official time was granted to Union representatives conducting business at both the payroll office and the medical clinic. Hence, we construe the Union's exception as an allegation that the Arbitrator should have found that the Activity committed an unfair labor practice by denying the Chief Union Steward official time to conduct Union activities.

Under section 7131(d) of the Statute, the parties may negotiate amounts of official time which are reasonable, necessary, and in the public interest. See U.S. Small Business Administration and American Federation of Government Employees, Local 2532, 30 FLRA 75, 78 (1987). In this case, the Arbitrator found that, consistent with the parties' collective bargaining agreement, the Chief Steward was required to obtain prior oral permission to leave the work area on official time. The Arbitrator determined that the grievant left the work area without obtaining the necessary prior oral permission. Therefore, the Arbitrator concluded that the 3-day suspension of the grievant was reasonable under the circumstances of this case.

The Arbitrator's conclusion was based on his
interpretation of a provision of the parties' agreement. The Union has not demonstrated, and there is no basis on which to conclude, that the provision is inconsistent with section 7131(d) of the Statute. Accordingly, we reject the Union's exception that the Arbitrator refused to consider the "Unfair Labor Practice" aspects of the grievance. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 560-62 (1990) (exception contending that management's suspension of local union vice president was a reprisal for past union activities constituted nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony).

B. The Union Has Not Demonstrated That the Arbitrator Exceeded His Authority

The Union argues that the Arbitrator exceeded his authority by modifying the terms and conditions of the parties' collective bargaining agreement.

An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted to arbitration, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 35 FLRA 1175 (1990). An arbitrator's formulation of the issue is accorded substantial deference where the parties do not stipulate the issue to be resolved. Id.

In this case, there is no indication in the record before us that the parties stipulated the issue to be resolved by the Arbitrator. Accordingly, the Arbitrator's determination that the issue was whether the grievant obtained oral permission to leave the Depot premises to conduct Union duties is entitled to, and hereby is accorded, deference. The Arbitrator resolved the issue, as he framed it, and limited his award to the grievant. We conclude, therefore, that the Arbitrator's award is directly responsive to and properly confined to the issue as the Arbitrator framed it. Consequently, the Union's exception provides no basis for finding the award deficient. See id.

In addition, we reject the Union's assertion that the Arbitrator erroneously shifted the burden of proving that oral permission was or was not actually granted, from the Agency to the Union. Unless a specific standard of proof or review is required by law or the parties' agreement, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis. Bureau of Indian Affairs and National Federation of Federal Employees, Local 243, 25 FLRA 902, 906 (1987).

Under Article XXIV, Section 1, of the parties' agreement, disciplinary action may be instituted only by a showing of "just cause" by the Agency. Article XXIV, Section 1 does not, however, specify the elements of proof for finding just cause. As the parties' agreement did not set forth a specific standard for determining whether oral permission was granted, and no specific standard is required by law, there is no basis on which to conclude that the Arbitrator erred by requiring the Union to show that oral permission was granted.

C. The Union Has Not Demonstrated That the
Arbitrator's Award Fails To Draw Its Essence From the Parties' Collective Bargaining Agreement

In order for an award to be deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213 (1990).

The Union claims that the Arbitrator ignored a
long-standing past practice of permitting Union officials to conduct Union business at off-Depot locations. However, we find that the Union has not demonstrated that the Arbitrator's ruling is deficient under any of the tests set forth above. In reaching his conclusion that the Agency had just cause to suspend the grievant, the Arbitrator relied on provisions of the parties' collective bargaining agreement which expressly require the Chief Steward to obtain oral permission to leave the work area to conduct Union business.

Accordingly, we find that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the agreement and attempts to relitigate the merits of the case before the Authority. Such an exception does not establish that the award fails to draw its essence from the collective bargaining agreement. See, for example, U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 1307 (1990).

V. Decision

The Union's exceptions are denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. Article VII, Section 11(a),
   of the parties' collective bargaining agreement states, in part:

[w]hen in the course of performing his duties as a Chief Steward he has need to leave his assigned shop, the Chief Steward will obtain oral permission from his Supervisor, and at that time inform the Supervisor of the subject to be transacted.

Award at 8.

2. Article VII, Section 16 of
   the parties' collective bargaining agreement states, in part:

All Union Representatives, except Chairman, shall fill out a form mutually agreed upon for conducting the duties relating to their Union position. . . . In case of Shop Steward, this form shall be utilized as written permission[.] In case of Chief Steward, he will state his name, date, time, destination and the subject of the business to be transacted on the form prior to leaving his assigned area[.] Such form will be completed upon returning to the shop.

Id. at 9.