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27:0028(6)AR
The decision of the Authority follows:
27 FLRA No. 6
SOCIAL SECURITY ADMINISTRATION
NEW YORK REGIONAL OFFICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3369, AFL-CIO
Union
Case No. 0-AR-1258
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Robert T. Simmelkjaer 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.
II. Background and Arbitrator's award
The grievance in this case concerned the distribution of a Union
bulletin entitled "Woodcox Guilty of Fourth Unfair Labor Practice." and
the interpretation of the following contract provision:
Article 12, Communications
Section 2 -- Distribution of Union Publications
A. Official publications of the Union may be distributed on
SSA property by union representatives during the non-duty time of
the union representatives who are distributing and the employees
receiving the materials. Distribution shall not disrupt
operations. All such materials shall be properly identified as
official union issuances. Materials distributed will not malign
the character of any Federal employee.
The Agency contended before the Arbitrator that the Union violated
Article 12, Section 2A when it distributed the bulletin because it
contained false material which maligned the character of Jefferson
Woodcox, the Agency's District Manager. The Union maintained, in
essence, that Article 12, Section 2A had been unfairly imposed by the
Agency during negotiations and that the provision violates the
constitutional and statutory rights of Union officials and unit
employees regarding the distribution and receipt of Union material.
The Arbitrator determined that his role in this case was limited to
the interpretation of specific contract language. He held that the
distribution of the bulletin by Union agents violated Article 12,
Section 2A because it maligned the character of Woodcox. The Arbitrator
found that the newsletter contained information that was "false,
inaccurate, and a misrepresentation of the facts." Arbitrator's Decision
at 14. He stated that each of the unfair labor practice charges
referred to in the newsletter had been settled informally by the parties
before the date of the newsletter. He rejected the Union's argument
that the bulletin did not intend to convey to employees that Woodcox had
been "adjudicated" guilty of four unfair labor practices. He found that
the headline, reinforced by the text of the bulletin, showed that "these
miscrepresentations were designed to malign and defame Mr. Woodcox(,)
with whom the Union has had ongoing disputes." Arbitrator's Decision at
17-18.
The Arbitrator also determined that the wording in Section 2 was
mutually accepted by the parties as a limitation on Union freedom of
expression; and that the Union agreed to the language as a "reasonable
trade-off" for receiving bulletin board space and use of the Agency's
facilities to distribute Union materials. Arbitrator's Decision at 18.
As to the Union's argument that the Arbitrator should deny enforcement
of the disputed portions of Article 12, Section 2A, the Arbitrator held
that he was now empowered to declare null and void a provision of a
negotiated agreement which was mutually agreed to by the parties, unless
the Union had entered into the agreement under duress. He found that
the Union had not entered into the agreement under duress, and he
concluded that Article 12, Section 2A of the agreement did not infringe
upon the Union's constitutional guarantees, its statutory rights or
public policy.
Accordingly, the Arbitrator found that the Union violated Article 12,
Section 2A. The Arbitrator ordered the Union to (1) cease and desist
from distributing on Agency property publications which violate Article
12, Section 2A of the National Agreement, and (2) prepare and post a
retraction of the material which maligned Woodcox.
III. Exception
The Union contends that the Arbitrator's award fails to draw its
essence from the parties' agreement. In support of this contention, the
Union argues that the award evidences a manifest disregard of the law
because it is contrary to Federal Labor law and is inconsistent with
public policy. The Union further argues that the award contravenes the
express terms of the collective bargaining agreement and is ambiguous.
The Agency did not file an opposition to the Union's exceptions.
IV. Analysis
In order for an award to be found deficient as failing to draw its
essence from the parties' agreement, the party making the allegation
must demonstrate that the award (1) cannot in any rational way be
derived from the agreement; (2) is so unfounded in reason and fact, or
so unconnected to the wording and purpose of the agreement, as to
manifest an infidelity to the obligation of the arbitrator; (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. General Services
Administration, Region 8 and American Federation of Government
Employees, AFL-CIO, Council 236, 21 FLRA No. 54 (1986) slip op. at 2.
We find that the Union has failed to demonstrate that the
Arbitrator's award does not draw its essence from the parties' agreement
under any of the tests described above. The Arbitrator found that
Article 12, Section 2A requires that materials distributed by Union
representatives on Agency property not malign the character of any
Federal employee. He determined that the Union had voluntarily agreed
to the provision and that he was not empowered to declare it null and
void where there was mutual agreement between the parties. The
Arbitrator concluded that the Union violated that provision by
distributing the bulletin containing false and misleading information
which maligned Woodcox. The Union's exception merely constitutes
disagreement with the Arbitrator's interpretation of the parties'
agreement and his assessment of the facts in this case. The exception
therefore does not provide a basis for finding the award deficient.
See, for example, Veterans Administration Regional Office, Denver,
Colorado and American Federation of Government Employees, AFL-CIO, Local
Union 1557, 25 FLRA No. 93 (1987).
We also reject the Union's assertion that the award contravenes the
express terms of the collective bargaining agreement. The Arbitrator's
award resolved a grievance submitted to him by the parties in accordance
with their negotiated grievance procedure. In resolving the grievance
on the basis of the evidence, the Arbitrator determined that the Union's
action was contrary to the agreement and that the agreement did not
infringe on the constitutional guarantees or on the Federal rights of
labor organizations. He found that the Union had agreed to a limitation
on its rights to publish and distribute materials in exchange for access
to agency bulletin boards and facilities. The Union has failed to
demonstrate that the award violates the terms of the agreement.
Finally, the Union's assertion that the award is ambiguous must be
rejected. The Union argues that it is unable to comply with the
Arbitrator's award since he failed to identify the statements in the
bulletin which were contrary to the parties' agreement. However, the
Arbitrator clearly states in his award that the bulletin containing
false and misleading information concerning the resolution of certain
unfair labor practice charges involving Mr. Woodcox. His award directed
the Union to retract the information in the headline and text of the
bulletin which indicated that Mr. Woodcox had been found guilty of four
unfair labor practices. The Union's assertion provides no basis for
finding the award deficient.
V. Decision
For the reasons stated above, the Union's exceptions are denied.
Issued, Washington, D.C., May 12, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY