Overseas Education Association (Union) and Office of Dependents Schools, Department of Defense (Activity)

 



[ v04 p98 ]
04:0098(17)AR
The decision of the Authority follows:


 4 FLRA No. 17
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
 and
 
 OFFICE OF DEPENDENTS SCHOOLS,
 DEPARTMENT OF DEFENSE
 Activity
 
                                            Case No. 0-AR-34
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
 REVIEW OF THE AWARD OF ARBITRATOR NICHOLAS H. ZUMAS UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, THE GRIEVANT IN
 THIS MATTER IS THE UNION'S PRESIDENT WHO IS A TEACHER STATIONED IN
 AUGSBURG, GERMANY.  THE PARTIES HEREIN HAVE A COLLECTIVE BARGAINING
 AGREEMENT WITH A PROVISION CONCERNING USE OF OFFICIAL TIME BY UNION
 REPRESENTATIVES FOR THE PURPOSE OF CONDUCTING LABOR-MANAGEMENT BUSINESS.
  /1/ DURING THE FALL OF THE SCHOOL YEAR 1978-79, THE UNION PRESIDENT
 TOOK SEVERAL LEAVE WITHOUT PAY (LWOP) DAYS AND WAS ALLOWED ON SOME DAYS
 TO USE ONE-HALF DAY LWOP AND ONE-HALF DAY OF THE "RELEASE TIME" PROVIDED
 FOR IN ARTICLE 8, SECTION 2 OF THE PARTIES' AGREEMENT FOR THE PURPOSE OF
 CONDUCTING LABOR-MANAGEMENT BUSINESS.  AT THE REQUEST OF THE UNION'S
 BOARD OF 'DIRECTORS, THE UNION PRESIDENT DECIDED TO ASSUME FULL-TIME
 STATUS COMMENCING JANUARY 1979.  IN DECEMBER 1978, HE PRESENTED TO HIS
 PRINCIPAL A SCHEDULE IN WHICH HE WOULD TAKE HALF-DAY LWOP AND HALF-DAY
 "RELEASE TIME" FOR THE BALANCE OF THE SCHOOL YEAR.  THE SCHEDULE WAS
 DISAPPROVED BY THE ACTIVITY.  THEREAFTER, THE PRESIDENT SUBMITTED
 ANOTHER SCHEDULE INTERSPERSING WHOLE DAYS OF LWOP WITH WHOLE "RELEASE
 TIME" DAYS.  THE SECOND SCHEDULE WAS ALSO DISAPPROVED BY THE ACTIVITY
 WHICH ASSERTED THAT ARTICLE 8 OF THE PARTIES' AGREEMENT REQUIRED THE
 UNION PRESIDENT TO TAKE THE FULL 90 "RELEASE TIME" DAYS BEFORE BEING
 ALLOWED TO TAKE ANY LWOP.
 
    THE UNION GRIEVANCE, CONCERNING THE AGENCY'S INTERPRETATION AND
 APPLICATION OF ARTICLE 8, SECTIONS 2 AND 3 (NOTE 1, SUPRA) OF THEIR
 COLLECTIVE BARGAINING AGREEMENT, WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    INSOFAR AS IS RELEVANT HEREIN, THE ARBITRATOR STATED THE ISSUE BEFORE
 HIM TO BE:
 
    DO SECTIONS 2 AND 3 OF ARTICLE 8 OF THE AGREEMENT REQUIRE THAT THE
 ASSOCIATION'S PRESIDENT
 
    EXERCISE HIS OPTION TO TAKE LEAVE WITHOUT PAY ONLY AFTER HE HAS USED
 HIS FULL 90 DAYS OF
 
    RELEASE TIME?
 
    AS TO THIS ISSUE, THE ARBITRATOR FOUND THE ACTIVITY'S INTERPRETATION
 OF THE AGREEMENT TO BE ERRONEOUS, AND SUSTAINED THE UNION'S GRIEVANCE,
 STATING:
 
    THERE IS NO REQUIREMENT UNDER SECTION 2 THAT SUCH RELEASE TIME DAYS
 BE USED DURING ANY
 
    PERIOD OF THE SCHOOL YEAR . . . THERE IS NOTHING IN THE LANGUAGE OF
 SECTION 3 TO SUGGEST THAT
 
    THE 90 DAYS ALLOWED IN FULL PAY STATUS BE EXHAUSTED BEFORE THE
 ASSOCIATION PRESIDENT IS
 
    ENTITLED TO TAKE LEAVE WITHOUT PAY.
 
    THE ARBITRATOR'S AWARD WAS AS FOLLOWS:
 
    1-- THAT FUTURE ARRANGEMENTS WITH RESPECT TO RELEASE TIME DAYS AND
 LEAVE WITHOUT PAY AS
 
    PROVIDED IN SECTIONS 2 AND 3 OF ARTICLE 8 SHALL COMPLY WITH THE
 ARBITRATOR'S FINDINGS.
 
    2-- THAT THE DISPUTED DAYS AS SET FORTH IN APPENDIX 1 OF THE
 ASSOCIATION'S BRIEG /2/ BE
 
    AND HEREBY ARE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND
 WITHOUT CHARGE TO
 
    LEAVE" AND ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF RELEASE
 TIME IN FULL PAY STATUS.
 
    3-- THAT THE ASSOCIATION PRESIDENT BE AND HEREBY IS DECLARED A
 PARTICIPANT/WITNESS, THAT
 
    APRIL 6, 9, 10, 11 AND 12, 1979 ARE TO BE DUTY DAYS, AND MANAGEMENT
 SHALL PROVIDE HIM WITH
 
    TRANSPORTATION EXPENSE BETWEEN AUGSBURG, GERMANY AND WASHINGTON, D.C.
 AND RETURN, PURSUANT TO
 
    ARTICLE 13, SECTION 10 OF THE AGREEMENT /3/ BETWEEN THE PARTIES.
 
    4-- THAT ASSOCIATION'S REQUEST FOR ATTORNEY'S FEES BE AND THE SAME IS
 HEREBY DENIED.  THERE
 
    IS NO EVIDENCE IN THIS RECORD TO SHOW THAT THE ACTION TAKEN BY
 MANAGEMENT HAS "RESULTED IN THE
 
    WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR
 DIFFERENTIALS" OF THE
 
    ASSOCIATION PRESIDENT, AS REQUIRED BY TITLE 5, SECTION 5596(B) OF THE
 UNITED STATES CODE, OR
 
    WAS OTHERWISE AUTHORIZED OR WARRANTED.
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411
 (1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
 AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
 44741(1979)), REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE UNION
 FILED AN OPPOSITION WHICH THE AUTHORITY DETERMINED WAS UNTIMELY FILED
 UNDER THE APPLICABLE RULES OF PROCEDURE AND WHICH THEREFORE WAS NOT
 CONSIDERED BY THE AUTHORITY IN DETERMINING WHETHER TO ACCEPT THE
 AGENCY'S PETITION FOR REVIEW AND WHETHER TO GRANT THE ACCOMPANYING
 REQUEST FOR A STAY.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTIONS WHICH ALLEGE THAT THE AWARD FAILS TO DRAW ITS
 ESSENCE FROM THE PARTIES' NEGOTIATED AGREEMENT, THAT THE AWARD EXCEEDS
 THE ARBITRATOR'S AUTHORITY, AND THAT THE AWARD VIOLATES LAW AND
 REGULATION BY BEING PUNITIVE IN NATURE.  PURSUANT TO SECTION 2411.47(F)
 OF THE AMENDED RULES, THE AUTHORITY GRANTED THE AGENCY'S REQUEST FOR A
 STAY.  THE AGENCY FILED A POST-ACCEPTANCE BRIEF PURSUANT TO SECTION
 2411.36 OF THE AMENDED RULES.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER THE ARBITRATOR'S AWARD
 IS DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR
 ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 
    THE AGENCY'S EXCEPTIONS RELATE TO PARTS 2 AND 3 OF THE ARBITRATOR'S
 AWARD.  PART 2 OF THE ARBITRATOR'S AWARD ORDERS "THAT THE DISPUTED DAYS
 . . . ARE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND WITHOUT
 CHARGE TO LEAVE" AND ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF
 RELEASE TIME IN FULL PAY STATUS." IN ITS FIRST EXCEPTION TO THIS PART OF
 THE ARBITRATOR'S AWARD, THE AGENCY ALLEGES THAT PART 2 OF THE AWARD
 FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT.  REGARDING THIS
 EXCEPTION, THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
 7122(A)(2) OF THE STATUTE WHERE THE AWARD DOES NOT DRAW ITS ESSENCE FROM
 THE COLLECTIVE BARGAINING AGREEMENT.  UNITED STATES ARMY MISSILE
 MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60 (1980);  RED
 RIVER ARMY DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R14-52, 3 FLRA NO. 32 (1980).  THE AUTHORITY HAS HELD THAT TO FIND AN
 AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE ON THE GROUND
 THAT AN AWARD FAILS TO DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING
 AGREEMENT, CONSISTENT WITH THE STANDARD APPLIED BY FEDERAL COURTS IN THE
 PRIVATE SECTOR, IT MUST BE DEMONSTRATED THAT THE ARBITRATOR'S AWARD
 CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE AGREEMENT;  OR IS SO
 UNFOUNDED IN REASON AND FACT, SO UNCONNECTED WITH THE WORKING AND
 PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN
 INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR;  OR THAT IT EVIDENCES A
 MANIFEST DISREGARD OF THE AGREEMENT;  OR THAT, ON ITS FACE, THE AWARD
 DOES NOT REPRESENT A PLAUSIBLE INTERPRETATION OF THE CONTRACT.  RED
 RIVER ARMY DEPOT, SUPRA, CITING U.S. ARMY MISSILE MATERIEL READINESS
 COMMAND, SUPRA.
 
    APPLYING THESE STANDARDS TO PART 2 OF THE ARBITRATOR'S AWARD AT ISSUE
 HEREIN, THE RECORD BEFORE THE AUTHORITY, INCLUDING SPECIFICALLY THE
 ISSUE AS ARTICULATED BY THE ARBITRATOR AND THE PARTIES' ENTIRE
 AGREEMENT, DEMONSTRATES THAT PART 2 OF THE AWARD FAILS TO DRAW ITS
 ESSENCE FROM THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  AS STATED
 PREVIOUSLY, THE ARBITRATOR FRAMED THE ISSUE INVOLVED BEFORE HIM, INSOFAR
 AS IS RELEVANT HEREIN, TO BE:
 
    2-- DO SECTIONS 2 AND 3 OF ARTICLE 8 OF THE AGREEMENT REQUIRE THAT
 THE ASSOCIATION'S
 
    PRESIDENT EXERCISE HIS OPTION TO TAKE LEAVE WITHOUT PAY ONLY AFTER HE
 HAS USED HIS FULL 90
 
    DAYS OF RELEASE TIME?
 
    IN THIS REGARD, ARTICLE 8 OF THE PARTIES' AGREEMENT (NOTE 1, SUPRA)
 PROVIDES THAT THE UNION PRESIDENT SHALL BE ALLOWED 90 DAYS "RELEASE
 TIME" FOR CONDUCTING LABOR-MANAGEMENT BUSINESS PER SCHOOL YEAR, AND IN
 ADDITION HE OR SHE SHALL BE ALLOWED THE OPTION OF TAKING LWOP FOR THE
 BALANCE OF THE SCHOOL YEAR.  THUS, ARTICLE 8 OF THE AGREEMENT PROVIDES
 ONLY TWO OPTIONS AVAILABLE TO THE UNION PRESIDENT FOR CONDUCTING LABOR
 MANAGEMENT BUSINESS:  "RELEASE TIME" OR LWOP.  FURTHERMORE, THE
 ARBITRATOR CLEARLY FRAMED THE ISSUE BEFORE HIM AS WHETHER THE CONTRACT
 REQUIRED EXHAUSTION OF THE "RELEASE TIME" BEFORE LWOP COULD BE TAKEN.
 HOWEVER, AFTER SUSTAINING THE UNION'S INTERPRETATION OF ARTICLE 8 OF THE
 PARTIES' AGREEMENT, THAT IS, THAT LWOP COULD BE USED BEFORE THE 90 DAYS
 OF "RELEASE TIME" IS EXHAUSTED, THE ARBITRATOR THEN WENT ON TO FASHION A
 REMEDY FOR WHICH THERE APPEARS TO BE NO RATIONAL BASIS IN THE AGREEMENT.
  SPECIFICALLY, THE AGREEMENT DOES NOT PROVIDE, IN ARTICLE 8 OR
 ELSEWHERE, ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, FOR ANY
 DAYS WHICH ARE "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND WITHOUT CHARGE
 TO LEAVE" AND (WHICH) ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF
 RELEASE TIME IN FULL PAY STATUS" AS ORDERED IN PART 2 OF THE AWARD.
 THUS, IT APPEARS THAT THE ARBITRATOR, BY AWARDING AS A REMEDY PAID DAYS
 EXCUSED FROM DUTY WHICH ARE NOT "RELEASE TIME", DISREGARDED THE TERMS OF
 THE AGREEMENT AND FASHIONED A THIRD TYPE OF PAY STATUS FOR THE PURPOSE
 OF CONDUCTING LABOR-MANAGEMENT BUSINESS FOR WHICH THERE IS NO RATIONAL
 BASIS IN THE AGREEMENT.  THUS, THE AWARD EVIDENCES A MANIFEST DISREGARD
 OF THE AGREEMENT WHICH EXPRESSLY PROVIDES ONLY TWO OPTIONS AS TO PAY
 STATUS FOR THE CONDUCT OF LABOR-MANAGEMENT BUSINESS BY THE UNION
 PRESIDENT:  LEAVE WITHOUT PAY OR "RELEASE TIME".  THEREFORE, THE AWARD
 MUST BE MODIFIED BY STRIKING PART 2, PURSUANT TO SECTION 7122(A) OF THE
 STATUTE AND SECTION 2411.37 OF THE AUTHORITY'S AMENDED RULES OF
 PROCEDURE.
 
    THE AGENCY FURTHER TAKES EXCEPTION TO PART 2 OF THE ARBITRATOR'S
 AWARD ON THE GROUNDS THAT IT EXCEEDS THE ARBITRATOR'S AUTHORITY AND
 VIOLATES LAW AND REGULATION BY BEING PUNITIVE IN NATURE.  IN VIEW OF OUR
 DISPOSITION OF PART 2 OF THE AWARD ON THE BASIS OF THE AGENCY'S FIRST
 EXCEPTION THERETO, IT IS UNNECESSARY TO ADDRESS THESE ADDITIONAL
 EXCEPTIONS CONCERNING PART 2 OF THE AWARD.
 
    IN ADDITION, THE AGENCY TAKES EXCEPTION TO PART 3 OF THE ARBITRATOR'S
 AWARD INSOFAR AS IT ORDERS THAT THE UNION PRESIDENT BE "DECLARED A
 PARTICIPANT/WITNESS" AND THAT APRIL 6, 9, 10, 11 AND 12, 1979 BE
 CONSIDERED DUTY DAYS.  IN ITS FIRST EXCEPTION TO PART 3 OF THE AWARD,
 THE AGENCY CONTENDS THAT IT FAILS TO DRAW ITS ESSENCE FROM THE
 AGREEMENT.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY CONTENDS THAT
 ARTICLE 13, SECTION 10E (NOTE 3, SUPRA) OF THE PARTIES' AGREEMENT
 PROVIDES THAT WITNESSES AND PARTICIPANTS IN AN ARBITRATION WILL BE IN A
 DUTY STATUS BUT THAT NO PROVISION FOR PREPARATION TIME FOR ARBITRATION
 IS FOUND IN ARTICLE 13 OR ELSEWHERE IN THE AGREEMENT.  THE AGENCY
 CONTENDS THAT THE HEARING IN QUESTION WERE NOT EVEN SPENT IN TRAVEL.
 THUS THE AGENCY CONCLUDES THAT THE ARBITRATOR'S AWARD OF OFFICIAL TIME
 FOR THESE DAYS LACKS A BASIS IN THE AGREEMENT.
 
    THE AGENCY'S FIRST EXCEPTION TO PART 3 OF THE AWARD STATES A GROUND
 UPON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
 7122(A)(2) OF THE STATUTE AS PREVIOUSLY DISCUSSED IN REFERENCE TO PART 2
 OF THE AWARD.  HOWEVER, IT DOES NOT APPEAR FROM THE RECORD BEFORE THE
 THE AUTHORITY THAT PART 3 OF THE AWARD FAILS TO DRAW ITS ESSENCE FROM
 THE COLLECTIVE BARGAINING AGREEMENT.  THUS, IT DOES NOT APPEAR THAT PART
 3 OF THE ARBITRATOR'S AWARD CANNOT IN ANY RATIONAL WAY BE DERIVED FROM
 THE AGREEMENT;  OR IS SO UNFOUNDED IN REASON AND FACT, SO UNCONNECTED
 WITH THE WORKING AND PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS
 TO MANIFEST AN INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR;  OR THAT
 IT EVIDENCES A MANIFEST DISREGARD OF THE AGREEMENT;  OR THAT, ON ITS
 FACE, THE AWARD DOES NOT REPRESENT A PLAUSIBLE INTERPRETATION OF THE
 CONTRACT.  U.S. ARMY MISSILE MATERIAL READINESS COMMAND, SUPRA AND RED
 RIVER ARMY DEPOT, SUPRA.  WHILE THE REASON FOR THE ARBITRATOR'S AWARD OF
 "DUTY DAYS" AS A "PARTICIPANT/WITNESS" IS NOT ENTIRELY CLEAR IN THE
 AWARD, IT WOULD APPEAR FROM THE RECORD AS A WHOLE, INCLUDING THE
 ARGUMENTS MADE BY THE AGENCY IN ITS PETITION FOR REVIEW, THAT THIS PART
 OF THE AWARD RELATED TO THE GRIEVANT'S PREPARATION TIME FOR THE
 ARBITRATION HEARING.  IT IS NOTED FROM THE RECORD BEFORE THE AUTHORITY
 THAT ARTICLE 13 ("GRIEVANCE PROCEDURE"), SECTION 6 OF THE PARTIES'
 AGREEMENT PROVIDES TEACHERS AND ASSOCIATION REPRESENTATIVES REASONABLE
 AMOUNTS OF OFFICIAL TIME FOR PREPARATION AND PRESENTATION OF GRIEVANCES.
  /4/ THE AWARDING OF DUTY DAYS FOR PREPARATION TIME FOR THE GRIEVANT
 HEREIN, THEREFORE, WOULD APPEAR TO HAVE A RATIONAL BASIS IN THE
 AGREEMENT, AND CANNOT BE SAID TO BE SO UNCONNECTED WITH THE WORDING AND
 PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN
 INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR.  THEREFORE, THERE IS NO
 BASIS FOR FINDING PART 3 OF THE AWARD DEFICIENT ON THE GROUND THAT THE
 AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT.
 
    THE AGENCY'S SECOND EXCEPTION TO PART 3 OF THE AWARD IS THAT IT
 EXCEEDS THE ARBITRATOR'S AUTHORITY.  IN SUPPORT OF THIS EXCEPTION, THE
 AGENCY CONTENDS THAT THE PARTIES' AGREEMENT PROVIDES NO SEPARATE
 ENTITLEMENT FOR PREPARATION TIME AND THAT NO JUSTIFICATION FOR THIS
 AWARD, OTHER THAN A VAGUE REFERENCE TO ARTICLE 13, WAS GIVEN BY THE
 ARBITRATOR.
 
    THE AGENCY'S SECOND EXCEPTION STATES A GROUND UPON WHICH THE
 AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE
 STATUTE.  DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE AND LOCAL
 1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA NO. 38 (1980).
  IN THIS CASE, HOWEVER, THE RECORD BEFORE THE AUTHORITY DOES NOT
 DEMONSTRATE THAT THE AWARD EXCEEDS THE ARBITRATOR'S AUTHORITY.  THAT IS,
 THERE IS NO INDICATION THAT THE SCOPE OF THE ISSUE BEFORE THE ARBITRATOR
 WAS SO LIMITED, BY THE PARTIES OR THE AGREEMENT, SUCH THAT HE EXCEEDED
 HIS AUTHORITY BY AWARDING THE GRIEVANT "DUTY DAYS" FOR PREPARATION FOR
 THE ARBITRATION.  ESSENTIALLY, BY ARGUING THAT IT CANNOT FIND
 "JUSTIFICATION" FOR THE AWARD OF PREPARATION TIME IN THE AGREEMENT, THE
 AGENCY IS REITERATING ITS ARGUMENTS WITH RESPECT TO ITS CONTENTION THAT
 THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT.  AS PREVIOUSLY
 STATED, IT DOES NOT APPEAR THAT THE ARBITRATOR'S AWARD OF PREPARATION
 TIME IS WITHOUT A RATIONAL BASIS IN THE AGREEMENT.  THEREFORE, THERE IS
 NO BASIS FOR FINDING PART 3 OF THE AWARD DEFICIENT ON THE GROUND THAT
 THE ARBITRATOR EXCEEDED HIS AUTHORITY.
 
    THE AGENCY'S THIRD EXCEPTION TO PART 3 OF THE AWARD IS THAT THE AWARD
 VIOLATES LAW AND REGULATION BY BEING PUNITIVE IN NATURE.  IN SUPPORT OF
 THIS EXCEPTION, THE AGENCY CONTENDS THAT, SINCE THE AWARD "LACKS
 JUSTIFICATION," IT IS THUS ILLEGAL AND UNPAYABLE.  THE AGENCY FURTHER
 CONTENDS THAT ONE OF THE DISPUTED DUTY DAYS AWARDED BY PART 3 OF THE
 AWARD, APRIL 9, HAD BEEN PREVIOUSLY GIVEN TO THE GRIEVANT BY THE
 ACTIVITY AS "ANY-PURPOSE-LEAVE" /5/, AND THAT THEREFORE COMPLIANCE WITH
 THE ARBITRATOR'S AWARD WOULD RESULT IN DUAL COMPENSATION, WHICH IS
 ILLEGAL.
 
    THE AGENCY'S THIRD EXCEPTION STATES A GROUND, I.E. THAT THE AWARD
 VIOLATES LAW OR REGULATION, ON WHICH THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, IN THIS
 CASE, THE RECORD BEFORE THE AUTHORITY DOES NOT DEMONSTRATE THAT THE
 AWARD VIOLATES LAW OR REGULATION.  AS TO THE CONTENTION THAT PART 3 OF
 THE AWARD IS ILLEGAL BECAUSE IT "LACKS JUSTIFICATION," AS STATED IN THE
 DISCUSSION CONCERNING THE AGENCY'S FIRST AND SECOND EXCEPTIONS TO PART 3
 OF THE AWARD, IT HAS NOT BEEN DEMONSTRATED THAT PART 3 OF THE
 ARBITRATOR'S AWARD IS WITHOUT JUSTIFICATION IN THE AGREEMENT.  AS TO THE
 AGENCY'S CONTENTION THAT APRIL 9 WAS GIVEN TO THE GRIEVANT AS
 "ANY-PURPOSE-LEAVE", AND THAT COMPLIANCE WITH PART 3 OF THE AWARD WOULD
 RESULT IN ILLEGAL DUAL COMPENSATION, THE RECORD BEFORE THE AUTHORITY
 DOES NOT DEMONSTRATE THAT THE AWARD REQUIRES THE AGENCY TO COMPUTE AND
 MAKE ANY ILLEGAL PAYMENTS TO THE GRIEVANT.  IN THIS REGARD, THE
 ARBITRATOR'S AWARD MERELY STATES THAT THE FIVE DAYS IN DISPUTE IN PART 3
 OF THE AWARD "ARE TO BE DUTY DAYS." IN EFFECT, THE AWARD DOES NO MORE
 THAN STATE THAT THE GRIEVANT HAS A GENERAL ENTITLEMENT TO BE CONSIDERED
 A PARTICIPANT/WITNESS ON THE DAYS IN QUESTION, AND THEREBY BE IN A DUTY
 STATUS.  THE AWARD IN NO MANNER DIRECTS THE PAYMENT OF DUAL COMPENSATION
 CONTRARY TO THE REQUIREMENTS OF APPLICABLE LAW AND REGULATIONS, AND THE
 AGENCY HAS NOT DEMONSTRATED IN WHAT WAY IT MIGHT.  THEREFORE THE
 AGENCY'S THIRD EXCEPTION PROVIDES NO BASIS FOR FINDING PART 3 OF THE
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE AND SECTION
 2411.37 OF THE AMENDED RULES OF PROCEDURE.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37 OF THE
 AMENDED RULES, THE AWARD OF THE ARBITRATOR IS MODIFIED BY STRIKING PART
 2 THEREOF CONSISTENT WITH THIS OPINION AND, AS SO MODIFIED, IS
 SUSTAINED.  IT IS NOTED THAT PART 2 OF THE AWARD ESSENTIALLY CONSTITUTES
 AN APPARENT ATTEMPT BY THE ARBITRATOR TO REMEDY A VIOLATION OF THE
 AGREEMENT WHICH HE DETERMINED WAS COMMITTED BY THE AGENCY.  ALTHOUGH WE
 HAVE FOUND THAT THE REMEDY AS FASHIONED BY THE ARBITRATOR HEREIN FAILED
 TO DERIVE ITS ESSENCE FROM THE PARTIES' AGREEMENT, THIS WOULD NOT
 PRECLUDE THE PARTIES FROM AGREEING BETWEEN THEMSELVES TO AN APPROPRIATE
 REMEDY FOR THE VIOLATION, SUCH AS INTERSPERSING THE LEAVE WITHOUT PAY
 AND "RELEASE TIME" DAYS, OR FROM AGREEING TO RESUBMIT THE ISSUE OF AN
 APPROPRIATE REMEDY TO THE ARBITRATOR, OR TO ANOTHER ARBITRATOR.
 
    ISSUED, WASHINGTON, D.C., AUGUST 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ARTICLE 8 OF THE PARTIES' AGREEMENT, "USE OF OFFICIAL TIME,"
 PROVIDES IN RELEVANT PART:
 
    SECTION 2.  THE ASSOCIATION PRESIDENT SHALL RECEIVE NINETY (90) DAYS
 RELEASE TIME IN FULL
 
    PAY STATUS IN EACH SCHOOL YEAR FOR THE PURPOSE OF CONDUCTING
 LABOR/MANAGEMENT BUSINESS.  EACH
 
    AREA DIRECTOR SHALL RECEIVE FORTY-FIVE (45) DAYS RELEASE TIME IN FULL
 PAY STATUS IN EACH
 
    SCHOOL YEAR FOR THE PURPOSE OF CONDUCTING LABOR/MANAGEMENT BUSINESS.
 THE PRESIDENT AND EACH
 
    AREA DIRECTOR SHALL GIVE HIS/HER PRINCIPAL SUFFICIENT NOTICE SO THAT
 A SUBSTITUTE MAY BE
 
    ACQUIRED BEFORE TAKING SUCH RELEASE TIME.  NORMALLY FIVE WORKING DAYS
 SHALL BE CONSTRUED AS
 
    SUFFICIENT NOTICE.  SHOULD USE OF OFFICIAL TIME LIMITATIONS BE ISSUED
 BY AN OUTSIDE AGENCY
 
    WHICH WOULD REQUIRE REDUCTION OF THIS NINETY DAY ALLOWANCE FOR THE
 PRESIDENT AND FORTY-FIVE
 
    DAY PER AREA DIRECTOR ALLOWANCE THEN THE PRESIDENT AND EACH AREA
 DIRECTOR SHALL RECEIVE THE
 
    MAXIMUM TIME ALLOWED BY SUCH OUTSIDE AGENCY REGULATION.
 
    SECTION 3.  IN ADDITION TO THE ABOVE PROVISION, THE ASSOCIATION
 PRESIDENT SHALL BE ALLOWED
 
    TO EXERCISE THE OPTION OF TAKING LEAVE WITHOUT PAY FOR ANY REMAINING
 PORTION OF THE SCHOOL
 
    YEAR PROVIDED MANAGEMENT IS GIVEN ADEQUATE NOTICE.  SHOULD THE
 PRESIDENT EXERCISE THIS OPTION,
 
    HE/SHE SHALL BE RETURNED TO THE SAME SCHOOL AND EVERY REASONABLE
 EFFORT SHALL BE MADE BY
 
    MANAGEMENT WHEN HE/SHE IS RETURNED TO DUTY TO RETURN HIM/HER TO THE
 SAME POSITION PREVIOUSLY
 
    HELD IN THAT SCHOOL.
 
    /2/ APPENDIX 1 OF THE UNION'S BRIEF BEFORE THE ARBITRATOR PROVIDES:
 
    DISPUTED DAYS IN THE SCHEDULE OF THE OEA PRESIDENT. LWOP WAS DENIED
 BY DODDS FOR EACH.  THE
 
    DEA ASKS THAT EACH BE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF
 PAY AND WITHOUT CHARGE TO
 
    LEAVE" AND THAT THEY NOT BE COUNTED AS ANY OF THE 90 DAYS OF RELEASE
 TIME IN FULL PAY STATUS
 
    SPECIFIED IN ARTICLE 8, SECTION 2 OF THE AGREEMENT.  (TABLE OMITTED)
 
    /3/ ARTICLE 13, SECTION 10E OF THE PARTIES' AGREEMENT PROVIDES:
 
    E.  IF THE PARTIES FAIL TO AGREE ON A JOINT SUBMISSION OF THE ISSUE
 FOR ARBITRATION, EACH
 
    SHALL SUBMIT A SEPARATE SUBMISSION AND THE ARBITRATOR SHALL DETERMINE
 THE ISSUE OR ISSUES TO
 
    BE HEARD.  THE ARBITRATOR'S HEARING WILL NORMALLY BE AT THE SCHOOL
 SITE.  ALL PARTICIPANTS,
 
    INCLUDING WITNESSES, IN THE HEARING SHALL BE IN A DUTY STATUS AND, IN
 THE EVENT THE HEARING IS
 
    NOT HELD AT A SITE WITHIN COMMUTING DISTANCE, PARTICIPANTS, INCLUDING
 WITNESSES, SHALL BE
 
    PROVIDED TRANSPORTATION IN ACCORDANCE WITH THE JTR, VOL. II.  BASED
 ON THIS INFORMATION, THE
 
    ARBITRATOR SHALL DETERMINE THE WITNESSES TO PROVIDE TESTIMONY.  EACH
 PARTY MAY RECOMMEND
 
    WITNESSES BY PROVIDING FULL NAME AND ADDRESS, A NOTARIZED STATEMENT
 SETTING FORTH THE EXPECTED
 
    TESTIMONY, AND AN EXPLANATION OF THE RELEVANCE OF THE TESTIMONY TO
 THE ISSUE.
 
    /4/ RELEVANTLY, ARTICLE 13, SECTION 6 PROVIDES:
 
    B.  A TEACHER, IN PRESENTING A GRIEVANCE UNDER THIS AGREEMENT, SHALL:
 
   .          .          .          .
 
 
    (4) BE ENTITLED TO A REASONABLE AMOUNT OF OFFICIAL TIME FOR THE
 PREPARATION AND
 
    PRESENTATION OF HIS/HER GRIEVANCE, IF HE/SHE IS IN AN ACTIVE DUTY
 (PAY) STATUS;
 
   .          .          .