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

 

1. 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.

    

2. 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.

    

3. 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]

    

    

4. Order

   We deny the Agency’s exception.

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

   Member DuBester, concurring:

    

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