United States Department of Health and Human Services, Food and Drug Administration and National Treasury Employees Union (Authority decision, August 12, 2020)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award and a finding that the agency interfered with representational communications in violation of 5 U.S.C. § 7116(a)(1). The arbitration exclusion in 5 U.S.C. § 7123(a)(1) does not apply where the Authority's order involves an unfair labor practice under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NTEU asked the Food and Drug Administration to distribute an email about back pay for furloughed employees, fiscal-year funding, the Martin Luther King Jr. holiday, and a union-dues form. An arbitrator found that the first three subjects were representational communications permitted by the agreement and that refusing them unlawfully interfered with the union's communication rights. He separately found that the dues-form link was membership solicitation and did not have to be distributed. The agency challenged a statutory violation the arbitrator had not found and did not address his actual ruling under 5 U.S.C. § 7116(a)(1). The Authority denied the exception and left the notice-posting remedy in place.

Decision snapshot

• Authority: 5 U.S.C. §§ 7102, 7116(a)(1), 7122, and 7123(a); 5 C.F.R. § 2425.6(e)(1)
• Outcome: The Authority denied the agency's exception and upheld the union-email and notice-posting award.
• Key point: An exception must address the violation the arbitrator actually found; disputing a different statutory theory provides no basis to overturn the award.

Full text (FLRA public release)

71 FLRA No. 175

UNITED STATES

DEPARTMENT OF HEALTH

AND HUMAN SERVICES

FOOD AND DRUG ADMINISTRATION

(Agency)

and

NATIONAL TREASURY

EMPLOYEES UNION

(Union)

0‑AR‑5581

_____

DECISION

August 12, 2020

_____

Before the Authority: Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester concurring)

Decision by Member Abbott for the Authority

Statement of the Case

This case involves a grievance filed by the Union alleging that the Agency violated the Federal Service Labor‑Management Relations Statute (Statute)[1] and the parties’ agreement when it failed to authorize the Union’s email communications to bargaining‑unit employees. We find that the Agency failed to provide any reason or support for disturbing the award. Accordingly, we deny the exception.

Background and Arbitrator’s Award

The arbitration concerned two grievances over two emails the Agency declined to authorize. The Agency only raised an exception to the Arbitrator’s finding concerning the second email. Therefore, we will limit the background to the relevant email at issue.

As relevant here, the Union submitted an email for Agency approval on January 17, 2019. The email contained information on back pay for furloughed employees, government funding for fiscal year 2019, and the upcoming federal holiday in honor of Martin Luther King, Jr. (MLK), and a link to Standard Form (SF) 1187.[2] The Agency disapproved the email because the attachments did not concern representational matters as required by the parties’ agreement. The Union filed a grievance and invoked arbitration.

Article 9, Section 2 provides: “[t]he Union may use the [e]mployers’ . . . e‑mail . . . to transmit or receive representational correspondence concerning the [e]mployers’ labor relations program.”[3] As to the Agency’s denial of the email based on the attachments, the Arbitrator found that Article 9, Section 2 “authorize[d] the Union to use the Agency’s email system to transmit or receive representational correspondence concerning [the Agency’s] labor relations program.”[4] The Arbitrator further found that the parties’ agreement did not define “representational correspondence” or the Agency’s “labor relations program.”[5] In making this finding, the Arbitrator relied on the previous Agency‑approved Union communications to find that the information in the email about back pay for furloughed employees, government funding for fiscal year 2019, and the upcoming MLK holiday constituted representational correspondence about the Agency’s labor relations program. As such, the Arbitrator found that the Agency violated the parties’ agreement by denying the portion of the email concerning the information on back pay for furloughed employees, government funding, and the MLK holiday.[6] The Arbitrator also found that the Agency violated 5 U.S.C. § 7116(a)(1) by failing to approve the email attachments because the denial “wrongly interfered with [the Union’s] right to communicate with bargaining unit employees concerning representational matters.”[7]

On January 8, 2020, the Agency filed exceptions to the award. The Union filed its opposition to the exceptions on February 6, 2020.

Analysis and Conclusion: The Agency fails to provide grounds for disturbing the award.

The Agency argues that the award is contrary to the Statute[8] because it did not violate § 7102 of the Statute. Specifically, the Agency asserts the Union’s “communications with bargaining[‑]unit employees . . . is not a statutory right secured generally under the Statute or specifically under [§] 7102(a).”[9] However, the Agency ignores the Arbitrator’s clear findings. The Arbitrator found that the Agency violated § 7116(a)(1) because its failure to authorize the email communication “wrongly interfered with [the Union’s] right to communicate with bargaining unit employees concerning representational matters.”[10] The Arbitrator never found a violation of § 7102(a).[11] Furthermore, the Authority has held that a party can violate § 7116(a)(1) without otherwise violating the Statute.[12] Instead of identifying any reason or support for why the Arbitrator’s finding—that the Agency violated § 7116(a)(1)—was contrary to the Statute, the Agency proceeds to argue why it did not violate § 7102. Therefore, the Agency has failed to provide any grounds or support for overturning the award, specifically the remedy of a notice posting. Accordingly, we deny the Agency’s exception.[13]

Order

We deny the Agency’s exception.

Member DuBester, concurring:

I agree with the Order to deny the Agency’s exception.

[1] 5 U.S.C. §§ 7102, 7116(a)(1).

[2] SF 1187 is the form used by Office of Personnel Management to request payroll deductions for labor organization dues. See SF 1187, https://www.opm.gov/forms/pdf_fill/sf1187.pdf (last accessed August 12, 2020).

[3] Award at 3 (quoting Collective-Bargaining Agreement, Art. 9, § 2).

[4] Id. at 21.

[5] Id.

[6] Member Abbott notes, as he has previously, that it is not the Authority’s role to save parties from vague and imprecise language agreed to or other “poor choices” made at the bargaining table. See AFGE, Local 3430, 71 FLRA 881, 886 n.3 (2020) (Concurring Opinion of Member Abbott) (citing U.S. Dep’t of VA, Malcolm Randall VA Med. Ctr., Gainesville, Fla., 71 FLRA 170, 172 (2019) (Dissenting Opinion of Member Abbott)).

[7] Award at 25-26. The Arbitrator also found that the inclusion of the link to the SF 1187 constituted a solicitation of Union membership and, thus, that the Agency’s refusal to include the link violated neither the Statute nor the parties’ agreement. Award at 19-20.

[8] The Authority reviews questions of law de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686‑87 (D.C. Cir. 1994)). In conducting a de novo review, the Authority determines whether the 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 unless the excepting party established that they are nonfacts. See U.S. DHS, U.S. CBP, Brownsville, Tex., 67 FLRA 688, 690 (2014).

[9] Exceptions Br. at 3.

[10] Award at 26.

[11] Id. at 25. We note that the Arbitrator explicitly found that the Agency did not violate § 7102 of the Statute in regards to the first email communication, which, as noted above, was not at issue in this exception. Id.

[12] U.S. DOJ, Fed. BOP, 68 FLRA 786, 788 (2015) (Member Pizzella dissenting in part) (citing Dep’t of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858, 861 (1996) (stating that it is a violation of § 7116(a)(1) and (5) when an Agency repudiates a negotiated agreement)).

[13] See AFGE, Local 2328, 70 FLRA 797, 798 (2018) (citing NTEU, 70 FLRA 57, 60 (2016) (denying an exception when the party failed to provide support); NTEU, Chapter 67, 67 FLRA 630, 630‑31 (2014)); see also 5 C.F.R. § 2425.6(e)(1) (An exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to . . . support a ground.”).