Department of the Navy, Naval Weapons Station, Concord, California, A/SLMR No. 1115

 



[ v01 p133 ]
01:0133(13)CA
The decision of the Authority follows:


 1 FLRA No. 13
                                            APRIL 9, 1979
 
 MR. WILFRED J. SCOTT
 PRESIDENT, LOCAL 1931
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 P.O. BOX 5548
 CONCORD, CALIFORNIA 94524
 
                       RE:  DEPARTMENT OF THE NAVY, NAVAL WEAPONS 
                            STATION, CONCORD, CALIFORNIA, A/SLMR No. 
                            1115, FLRC No. 78A-137
 
 DEAR MR. SCOTT:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 1931, AFL-CIO (THE UNION) FILED TWO UNFAIR LABOR PRACTICE COMPLAINTS
 AGAINST THE DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD,
 CALIFORNIA (THE ACTIVITY).  THE COMPLAINTS ALLEGED, IN EFFECT, THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO
 CONSULT, CONFER OR NEGOTIATE BEFORE ISSUING A LETTER WHICH UNILATERALLY
 ALTERED A PAST PRACTICE WITH RESPECT TO THE AMOUNT OF OFFICIAL TIME
 PERMITTED THE UNION'S PRESIDENT IN THE DISCHARGE OF HIS REPRESENTATIONAL
 RESPONSIBILITIES.  IT WAS FURTHER ALLEGED THAT THE AGENCY VIOLATED
 SECTION 19(A)(1) AND (2) OF THE ORDER BY CHARGING THE UNION'S PRESIDENT
 WITH ANNUAL LEAVE FOR PERIODS OF TIME USED IN EXCESS OF A SPECIFIED
 LIMITATION.
 
    AS FOUND BY THE ASSISTANT SECRETARY, THE UNION AND THE ACTIVITY WERE
 PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDED THAT THE
 UNION PRESIDENT COULD USE A REASONABLE AMOUNT OF OFFICIAL TIME TO
 CONDUCT UNION-MANAGEMENT BUSINESS.  /1/ DURING THE TERM OF THAT
 AGREEMENT, THE ACTIVITY SENT A LETTER TO THE UNION PRESIDENT, AN
 EMPLOYEE AT THE ACTIVITY, STATING THAT "(I)T HAS BEEN PAST PRACTICE . .
 . TO ALLOW THE UNION PRESIDENT APPROXIMATELY 25% OF HIS TIME AS
 'REASONABLE' UNDER THE PROVISIONS OF THE BASIC AGREEMENT FOR CONDUCT OF
 AUTHORIZED UNION ACTIVITIES" AND REQUESTING THAT THE USE OF OFFICIAL
 TIME BE LIMITED TO 25% OF THE UNION PRESIDENT'S WORKWEEK THEREAFTER.  IT
 WAS FURTHER FOUND THAT THE ACTIVITY SUBSEQUENTLY CHARGED THE UNION
 PRESIDENT ANNUAL LEAVE FOR TIME SPENT ON UNION-MANAGEMENT BUSINESS IN
 EXCESS OF 25% OFFICIAL TIME.
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ALJ'S CONCLUSION,
 FOUND THAT DISMISSAL OF THE UNION'S COMPLAINTS WAS WARRANTED.  IN SO
 CONCLUDING, HE STATED:
 
    ESSENTIALLY, WHAT IS INVOLVED HEREIN ARE THE CONFLICTING CONTENTIONS
 OF THE PARTIES AS TO
 
    THE PROPER INTERPRETATION OF THE PROVISION OF THEIR NEGOTIATED
 AGREEMENT ESTABLISHING
 
    "REASONABLE" OFFICIAL TIME FOR THE (UNION'S) PRESIDENT OR HIS DULY
 AUTHORIZED REPRESENTATIVE
 
    TO ENGAGE IN REPRESENTATIONAL ACTIVITIES.  IN THIS CONTEXT, I FIND
 THAT A RESOLUTION OF THE
 
    ISSUES PRESENTED HEREIN REQUIRES AN INTERPRETATION OF THE PARTIES'
 NEGOTIATED AGREEMENT IN
 
    RELATION TO THE USE OF OFFICIAL TIME.
 
    IT HAS BEEN PREVIOUSLY HELD THAT WHERE A MATTER INVOLVES DIFFERING
 AND ARGUABLE
 
    INTERPRETATIONS OF A NEGOTIATED AGREEMENT, AS OPPOSED TO A CLEAR,
 UNILATERAL BREACH OF THE
 
    AGREEMENT, SUCH A MATTER IS A PROPER SUBJECT FOR RESOLUTION UNDER A
 CONTRACTUAL
 
    GRIEVANCE-ARBITRATION PROCEDURE, RATHER THAN THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES OF
 
    THE EXECUTIVE ORDER.  /2/ ACCORDINGLY, AS I FIND THE DISPUTE HEREIN
 TO BE A MATTER OF
 
    CONTRACT INTERPRETATION, AND AS, IN MY VIEW, THE (ACTIVITY'S) CONDUCT
 DID NOT CONSTITUTE A
 
    CLEAR, UNILATERAL BREACH OF THE AGREEMENT, I SHALL ORDER THAT THE
 COMPLAINTS HEREIN BE
 
    DISMISSED.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED, IN ESSENCE, THAT
 THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT
 IT DOES NOT ADDRESS THE ISSUES RAISED IN THE COMPLAINTS.  IN THIS
 REGARD, IT IS ASSERTED THAT THE ISSUES IN THIS CASE ARE THE AGENCY'S
 IMPLEMENTATION OF A UNILATERAL CHANGE IN PAST PRACTICES BY IMPOSING THE
 25% LIMITATION ON THE UNION PRESIDENT'S USE OF OFFICIAL TIME FOR
 LABOR-MANAGEMENT RELATIONS AND BY ASSESSING ANNUAL LEAVE FOR TIME USED
 IN EXCESS OF THAT AMOUNT, AS WELL AS THE POSSIBLE DISCRIMINATORY NATURE
 OF THAT RESTRICTION IF IT WERE IMPLEMENTED SOLELY AGAINST THE UNION
 PRESIDENT.  FINALLY, IT IS CONTENDED THAT THE ALJ AND THE ASSISTANT
 SECRETARY WERE BIASED, IN THAT THEIR DECISIONS WERE BASED ON FACTS OTHER
 THAN THOSE PRESENTED AT THE HEARING.
 
    IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET
 THE REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES
 WHICH INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.
 THUS, IT DOES NOT APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY
 WAS ARBITRARY AND CAPRICIOUS AND NEITHER DOES IT APPEAR THAT HIS
 DECISION PRESENTS A MAJOR POLICY ISSUE.
 
    SPECIFICALLY, NO BASIS FOR AUTHORITY REVIEW IS PRESENTED WITH RESPECT
 TO THE ALLEGATION THAT THE ASSISTANT SECRETARY DID NOT ADDRESS THE
 ISSUES RAISED IN THE UNION'S COMPLAINTS.  THUS, SUCH CONTENTIONS
 CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 FINDING THAT THE DISPUTE HEREIN ESSENTIALLY INVOLVES AN INTERPRETATION
 OF THE PARTIES' NEGOTIATED AGREEMENT AND THAT WHERE, AS HERE, AN ALLEGED
 VIOLATION OF A NEGOTIATED AGREEMENT CONCERNS DIFFERING AND ARGUABLE
 INTERPRETATIONS OF THE AGREEMENT, THE MATTER IS TO BE RESOLVED UNDER THE
 PARTIES' CONTRACTUAL GRIEVANCE AND ARBITRATION MACHINERY RATHER THAN AS
 AN UNFAIR LABOR PRACTICE.  /3/ FURTHER, THE APPEAL CONTAINS NO BASIS TO
 SUPPORT THE CONTENTION OF BIAS IN THE CIRCUMSTANCES OF THIS CASE.
 
    ACCORDINGLY, AS THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
 ARBITRARY AND CAPRICIOUS AND SINCE A MAJOR POLICY ISSUE IS NOT
 PRESENTED, THE APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET
 FORTH IN SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH
 INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES OF
 PROCEDURE.  ACCORDINGLY, THE PETITION FOR REVIEW IS HEREBY DENIED.  /4/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  W. D. WILSON
 
    NAVY
 
    /1/ AS FOUND BY THE ASSISTANT SECRETARY, ARTICLE VI (UNION
 REPRESENTATION AND CONDUCT OF UNION BUSINESS) PROVIDED, IN PERTINENT
 PART, AS FOLLOWS:
 
    SECTION 7.  TIME OFF DURING THE REGULAR WORKING HOURS, AS MAY BE
 NECESSARY, WILL BE
 
    AUTHORIZED TO PERMIT THE RECOGNIZED UNION OFFICERS AND STEWARDS TO
 PROPERLY AND EXPEDITIOUSLY
 
    DISCUSS WITH EMPLOYEES GRIEVANCES AND APPROPRIATE MATTERS DIRECTLY
 RELATED TO WORK SITUATIONS,
 
    AND FOR ATTENDANCE AT MEETINGS WITH THE EMPLOYER.  THE UNION AGREES
 THAT IT WILL GUARD AGAINST
 
    THE USE OF EXCESSIVE TIME WHENEVER BUSINESS OF ANY NATURE IS
 TRANSACTED DURING WORKING HOURS,
 
    AND THAT ONLY THAT AMOUNT OF TIME NECESSARY TO BRING ABOUT A PROMPT
 DISPOSITION OF THE MATTER
 
    WILL BE UTILIZED.
 
    SECTION 11.  THE UNION REPRESENTATIVE (PRESIDENT OF HIS DULY
 AUTHORIZED REPRESENTATIVE)
 
    WILL BE ALLOWED A REASONABLE TIME DURING REGULAR WORKING HOURS TO
 PROPERLY PURSUE HIS OFFICIAL
 
    LIAISON DUTIES WITH THE EMPLOYER AND TO PROVIDE APPROPRIATE
 REPRESENTATION FOR EMPLOYEES.
 
    THE ASSISTANT SECRETARY FURTHER FOUND THAT THE PARTIES' AGREEMENT
 CONTAINED A GRIEVANCE PROCEDURE AS THE EXCLUSIVE METHOD OF SETTLING
 GRIEVANCES OVER THE INTERPRETATION AND APPLICATION OF THE AGREEMENT.
 
    /2/ SEE NORFOLK NAVAL SHIPYARD, 6 A/SLMR 486, A/SLMR 708(1976);
 DEPARTMENT OF THE ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, 6
 A/SLMR 127, A/SLMR NO.  624(1976);  FEDERAL AVIATION ADMINISTRATION,
 MUSKEGON AIR TRAFFIC CONTROL TOWER, 5 A/SLMR 457, A/SLMR NO. 534(1975);
 AND GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS SERVICE,
 CHICAGO FIELD OFFICES, 5 A/SLMR 424, A/SLMR NO. 528(1975).
 
    /3/ IN THIS REGARD, SEE THE COUNCIL'S STATEMENTS IN REQUESTS FOR
 INTERPRETATIONS AND POLICY STATEMENTS, 3 FLRC 874, 878-879 (FLRC 75P-1
 (MAY 23, 1975), REPORT NO.  90);  AND THE COUNCIL'S DECISION IN
 DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG AIR
 FORCE BASE, CALIFORNIA, A/SLMR 485, 4 FLRC 586, 592 (FLRC 75A-25 (NOV.
 19, 1976), REPORT NO. 118), TO THE EFFECT THAT WHILE NOTHING IN THE
 ORDER PROHIBITS AN AGENCY AND A LABOR ORGANIZATION FROM NEGOTIATING
 PROVISIONS FOR THE USE OF OFFICIAL TIME BY UNION REPRESENTATIVES FOR
 CONTRACT ADMINISTRATION AND OTHER REPRESENTATIONAL ACTIVITIES, THE
 NEGOTIATION OF SUCH PROVISIONS INTO AN AGREEMENT DOES NOT THEREBY
 CONVERT A CONTRACTUAL RIGHT INTO A RIGHT GUARANTEED BY THE ORDER AND
 REMEDIABLE UNDER SECTION 19 OF THE ORDER.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.