[ v27 p435 ]
27:0435(60)AR
The decision of the Authority follows:
27 FLRA No. 60
NATIONAL LABOR RELATIONS BOARD
Agency
and
NATIONAL LABOR RELATIONS BOARD UNION
Union
Case No. 0-AR-1286
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator A. Lee Belcher filed by the Agency 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
A grievance was filed by the Union on behalf of Robert F. Markey, an
employee of the Agency's Houston Regional Office. The parties submitted
a stipulation of facts to the Arbitrator, who rendered his Opinion and
Award based on the stipulation without an oral hearing.
A. The Stipulated Facts
The Agency had given employee Donald Lewis a notie of proposed
suspension. Markey had provided Lewis with an affidavit for Lewis' use
in responding to the proposed suspension. Assistant General Counsel
Kinney was assigned by the Agency's Headquarters Office, Washington,
D.C., to investigate the matters raised by Lewis' response to the
proposed suspension. Kinney requested that Markey provide a statement
to the Agency, in the form of an affidavit, regarding the matters raised
by the affidavit Markey had supplied to Lewis. Markey was allowed time
to discuss the matter with the Union. The Union asserted to the Agency
that it was entitled to be present, and that Markey was entitled to be
represented by the Union, during the taking of such an affidavit.
Kinney again met with Markey. Markey requested the presence of a Union
representative, and Kinney refused. Markey requested immunity from
discipline for any matters that would be discussed. Kinney refused on
the grounds that she did not know what Markey was going to say; she
ordered Markey to provide an affidavit, and he complied. The Union then
filed the grievance that gave rise to this arbitration matter.
B. The Issues
The parties stipulated the issues before the Arbitrator as follows:
1. Did the National Labor Relations Board (Agency) violate
Article 3, Section 1; and Article 5, Section 8(a) of the
collective bargaining agreement when it refused to allow a
representative of the National Labor Relations Board (Union) to
attend an examination by AGC Elizabeth Kinney of employee Robert
F. Markey on 15 March 1985?
2. Did the Agency violate Article 3, Section 1; or Article 4,
Sections 6 and 10; or Article 5, Section 8(b) of the collective
bargaining agreement when it refused to allow the employee to have
a representative of the Union attend the 15 March 1985 examination
described above?
3. Did the Agency violate Article 3, Section 1 when it failed
to assure Markey that his participation in the 15 March 1985
examination was voluntary?
4. If any of the above are answered in the affirmative, what
shall be the remedy?
C. The Arbitrator's Award
The Arbitrator found that the Agency violated the contract when it
refused to allow the Union to be present when Markey was questioned by
Kinney. He further found that Kinney's questioning of Markey about his
previous affidavit was in the nature of the cross-examination of a
witness, and was not simply in the nature of factfinding.
As his award, the Arbitrator held that:
1. The Agency violated Article 3, Section 1, and Article 5, Section
8(a) of the parties' agreement when it refused to allow a Union
representative to attend Kinney's examination of Markey.
2. The Agency violated Article 4, Section 10 and Article 5, Section
8(b) of the agreement when it refused to allow Markey to have a Union
representative present at the examination.
3. An employee has the right to union representation in any agency
examination of previously sworn statements upon his or her timely
request given to the agency.
4. The Agency did not violate Article 3, Section 1 when it declined
to assure Markey that his participation in the examination was
voluntary.
5. The request that it be declared that an employee has the right to
participate or not participate in examinations of information previously
given in an affidavit is denied.
6. The request for expungement of Markey's affidavit from the
Agency's record is denied.
III. Positions of the Parties
A. The Agency's Exceptions
In its exceptions, the Agency argues that the Arbitrator's findings
are contrary to law and Authority precedent. The Agency also argues
that the Arbitrator exceeded his authority by finding that all employees
have a right to union representation in any examination of previously
sworn statements without regard to what the facts may be in other given
circumstances.
B. The Union's Opposition
In support of the findings and conclusions of the Arbitrator, the
Union argues that the Agency's exceptions ignore the Arbitrator's basic
finding as to the nature of the investigation. The Union argues that
the Agency is only disagreeing with the Arbitrator's factual findings
and the conclusions he reached from those findings as to the meaning of
the parties' collective bargaining agreement.
IV. Analysis and Conclusions
We conclude that the Agency's exceptions fail to establish that the
award (other than the third paragraph) is deficient. The Arbitrator
made certain findings of fact and applied the provisions of the parties'
collective bargaining agreement to resolve the issues which were
submitted to him. He concluded that under those provisions Markey and
the Union had certain contractual rights. The Agency's exceptions which
dispute these conclusions constitute nothing more than disagreement with
the Arbitrator's interpretation and application of the collection
bargaining agreement, and provide no basis for finding the award
deficient. As the Authority has consistently stated, the interpretation
and application of the collective bargaining agreement is a question
solely for the arbitrator, since it is the arbitrator's construction of
the agreement for which the parties have bargained. See, for example,
Department of Health and Human Services, Social Security Administration,
Louisville, Kentucky District and National Federation of Federal
Employees, Local 1790, 10 FLRA 436, 437 (1982). In addition, to the
extent the Agency takes issue with the Arbitrator's view of the facts,
this likewise constitutes nothing more than disagreement with the
Arbitrator's reasoning and conclusions and provides no basis for finding
the award deficient. U.S. Army Corps of Engineers, Kansas City District
and National Federation of Federal Employees, Local 29, 22 FLRA No. 15
(1986).
However, we find that the Agency's exception to the third paragraph
of the Arbitrator's award has merit. In that paragraph of the award,
the Arbitrator held that "an employee has a right to union
representation in any agency examination of previously sworn statements
upon his/her timely request given to the agency." We find that the
Agency's argument in support of this exception establishes that this
paragraph of the award is deficient. An arbitrator exceeds his or her
authority when the arbitrator issues an affirmative order that goes
beyond the scope of the matter submitted to arbitration. For example,
Environmental Protection Agency, Region 9 and Engineers and Scientists
of California, MEBA, AFL-CIO, 17 FLRA 365 (1985).
In this case the Arbitrator exceeded his authority by failing, in the
third paragraph, to confine his award to the issues presented to him.
The parties stipulated that the issues concerned only the rights of
Markey and the Union with regard to the March 15, 1985 examination of
Markey. The third paragraph of the award goes beyond the scope of the
stipulated issues, because it determines the rights of all employees to
union representation in any Agency examination of previously sworn
statements. See also U.S. Department of Housing and Urban Development
and American Federation of Government Employees, Local No. 3412, 24 FLRA
No. 47 (1986). We will modify the award accordingly.
V. Decision
The Arbitrator's award is modified to delete the third paragraph of
the award. The Agency's exceptions are denied in all other respects.
Issued, Washington, D.C., June 16, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY