American Federation of Government Employees, Local 3911 and United States Environmental Protection Agency, 0-AR-3495, September 19, 2002, 58 FLRA No. 20.

The Authority turned down the union’s exceptions to an award in which the arbitrator denied a grievance alleging that the agency violated provisions of (1) the collective bargaining agreement (CBA) and (2) a flexiplace agreement (FA) when it denied the request of a union official on 100% official time to to be placed on flexiplace two days per pay period to perform union representational work at an "alternative work location" (i.e., his home).

The agency denied the grievant’s request because, among other things, there was no provision in the flexiplace agreement for conducting union business at an alternative work location (AWL). When the subsequent grievance was denied, the union referred the matter to arbitration where the stipulated issue was whether the agency violated provisions of the collective bargaining agreement (e.g., a provision allowing a union representative to leave his/her work station for representational purposes) and a flexiplace agreement, which states the conditions under which AWL requests could be approved.

The arbitrator said that the "parties stipulated that the Union has the burden to prove its case by a fair preponderance of the credible evidence." He went on to find that there was no credible evidence that the agency discriminated against the grievant, that the record established that denial of the grievant's application didn't preclude him from leaving his work station to perform representational functions and that there was no credible evidence that agency’s action compromised the grievant's contractual rights to "form, join, and assist labor organizations or to refrain from any such activity." In short, the arbitrator found no violation of the collective bargaining agreement provisions at issue.

Turning to the flexiplace agreement, he found, among other things, that employees participating in the program "must only perform EPA business while on a Flexiplace assignment." FLRA, in describing the award, said the following:

He [the arbitrator] determined the words "EPA business" were "unclear and ambiguous;" the Union had the burden to prove its case by a preponderance of the evidence; and the absence of any persuasive evidence to resolve the ambiguity precluded a finding that the Agency violated Section IV [of the flexiplace agreement] by concluding that the performance of representational activities did not constitute EPA business under this section.

Finding no violation of the CBA or the FA, the arbitrator denied the grievance. The union filed exceptions, all of which were rejected by the Authority.

We suspect that most of our readers will raise their eyebrows at learning that the arbitrator found the words "EPA business" to be "unclear and ambiguous." He did, however, eventually conclude that, in FLRA's words, "the performance of representational activities did not constitute EPA business"--but only because the union didn't advance, in FLRA's words, "any persuasive evidence to resolve the ambiguity." (Keep in mind that the arbitrator earlier said that the "parties stipulated that the Union has the burden to prove its case by a fair [sic] preponderance of the credible evidence.") Thus language the arbitrator found ambiguous was resolved in management's favor only because the union didn't meet its burden of resolving the ambiguity in its favor.

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