21:0388(50)AR - VA Medical Center, Brockton, Mass. and NAGE, Local R1-25 -- 1986 FLRAdec AR



[ v21 p388 ]
21:0388(50)AR
The decision of the Authority follows:


 21 FLRA No. 50
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, BROCKTON, MASSACHUSETTS
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R1-25
 Union
 
                                            Case No. 0-AR-990
 
                                 DECISION
 
                  I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Martin Lubow filed by the Veterans Administration (the
 Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The dispute before the Arbitrator arose when the Activity notified
 the local union president, the grievant, that official time for his
 representational activities was to be reduced from 100 percent to 15
 percent because of workload demands.  The grievant was instructed to
 return to his duties as a housekeeping aid for 85 percent of his work
 time.  The Arbitrator identified the basic issue in the dispute as what
 was a reasonable amount of official time under the parties' collective
 bargaining agreement for the union president to carry out appropriate
 representational activities.
 
    The Arbitrator issued a nine paragraph award in the matter.  In
 paragraph 1, the Arbitrator determined that under the parties' national
 and local supplemental collective bargaining agreements the Activity was
 required to provide union officers with a reasonable amount of official
 time to enable them to carry out appropriate representational activities
 while not neglecting their responsibilities as employees to their
 assigned departments.  In paragraphs 4, 5 and 6, here in dispute, the
 Arbitrator essentially provided as follows:
 
          4.  The supervisors shall grant sufficient (official time) to
       the grievant and other union officers to perform appropriate union
       work for reasonable periods of time, provided there is no work
       emergency . . . .
 
          5.  The decision to impose a 15% limitation of (official time)
       on the union president was arbitrary, capricious, discriminatory,
       retaliatory and unreasonable.  It is revoked.  While not granting
       100% of official time, 50%, or 80%, I am holding that if the union
       president's list of anticipated representational duties and time
       required is 40 hours or more for a given time and if the matters
       listed are appropriate and the times required are reasonable, that
       he be granted such (official) time . . . not to exceed 40 hours a
       week.  However, each week should stand on its own.  If an
       anticipated event is cancelled, it shall be the union
       representative's responsibility to bring that to the attention of
       his supervisor and to make himself available for his regular
       duties.  The VA may monitor the union official's duties by
       requiring a log after the fact of how time was actually spent.  If
       a pattern of abuse is found, the VA would then not be acting
       arbitrarily to take that into account in considering future
       requests for (official time).  If the parties differ as to what is
       "appropriate" to work on or what is a "reasonable" amount of time
       to perform the task, they should negotiate such matters in good
       faith.
 
          6.  For each day of annual leave that (the grievant) can prove
       he spent a full day performing appropriate union work for
       reasonable periods of time, or part thereof, he shall be provided
       a substitute day, or part thereof, of annual leave.  On the other
       hand, I see no reason why the grievant should not take a turn at
       weekend and holiday work, though I think it would impede his
       effectiveness as union president to put him into the normal shift
       rotation.  The parties are directed to negotiate the details of
       such an arrangement.
 
                              III.  ECXEPTION
 
    As its exception, the Agency contends that the paragraphs 4, 5, and 6
 of the award are deficient because they contravene management's right
 under section 7106(a)(2)(B) of the Statute to assign work.  In support
 of its exception, the Agency argues that the disputed paragraphs are
 deficient because they prohibit the assignment of work to union
 officials engaged in representational activities except in emergencies
 and also prohibit the assignment of work to the union president on
 weekends and holidays except in emergencies.  The Agency further argues
 that paragraph 6 of the award is also deficient because, by requiring
 the cancellation of annual leave taken by the union president, the award
 imposes a retroactive prohibition on management's right to assign work.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    The Authority finds that the Agency has misconstrued the Arbitrator's
 award.  In paragraph 1 of the award, the Arbitrator expressly provides
 that Union officials are to receive only a reasonable amount of official
 time to carry out appropriate union activities, while not neglecting
 their assigned duties.  Additionally, in paragraph 4, the Arbitrator
 only requires that supervisors grant "sufficient" time to enable union
 officers to carry out appropriate activities and then only if there is
 no work emergency.  Further, in paragraph 5 of the award, the Arbitrator
 again only provides for granting reasonable amounts of official time for
 appropriate representational activities, with any differences as to what
 is "reasonable" and "appropriate" subject to negotiation by the parties.
  Moreover, contrary to the Agency's second contention, the Arbitrator in
 paragraph 6 of the award clearly states that there is no reason why the
 grievant should not be assigned weekend and holiday work, even though,
 in the Arbitrator's view, it might impede his effectiveness as union
 president.  Thus, the Authority finds, contrary to the Agency's
 assertions, that the Arbitrator's award does not in any way improperly
 interfere with management's right to assign work.  American Federation
 of Government Employees, AFL-CIO, New York-New Jersey Council of
 District Office Locals, Social Security Administration and Department of
 Health and Human Services, Social Security Administration District
 Office Operations, 7 FLRA 413 (1981).  Furthermore with regard to
 paragraph 6 of the award, the Authority finds that the recrediting of
 annual leave taken for periods when official time should have been
 granted and was improperly denied is not deficient.  See, e.g., American
 Federation of Government Employees, Local 1395 and Department of Health
 and Human Services, Social Security Administration, 10 FLRA 18 (1982).
 The Authority therefore concludes that the Agency has failed to
 establish that the Arbitrator's award is deficient as alleged.
 
                               V.  DECISION
 
    Acco