39:1207(103)AR - - Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and NAGE Local R4-97 - - 1991 FLRAdec AR - - v39 p1207



[ v39 p1207 ]
39:1207(103)AR
The decision of the Authority follows:


39 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL MINE WARFARE ENGINEERING ACTIVITY

YORKTOWN, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-97

(Union)

0-AR-1833

DECISION

March 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Stanley H. Sergent. A grievance was filed over the Agency's refusal to permit the Union's vice president to use official time allocated to the use of the Union's president. The Arbitrator ruled that under the parties' agreement, Union officers other than the president are not entitled to use any of the official time hours allocated to the president.

The Union filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the exceptions.

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On July 14, 1989, the Agency denied official time to the Union vice president because she had exceeded the official time allocated to her position and denied her request to use official time allocated to the Union president under the parties' official time agreement. The Union filed a grievance claiming that the official time agreement allows other Union officials to use the official time allocated to the Union president. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated the issue to be "the meaning and intent of an agreement governing the use of official time by Union representatives which was entered into by the parties on April 12, 1988." Arbitrator's Award at 16-17. More specifically, the Arbitrator stated that the question raised is "whether, under the terms of that agreement, Union officers other than the Union President are entitled to use any of the official time hours that are allocated to the President." Id. at 17. The Arbitrator focused on Section 4, Part 2 of the agreement, which provides as follows:

Section 4. Amounts of Official Time

Official time is authorized for those functions authorized in Section 3, Part I above as follows:

(1) Union President - 36 hours per pay period

(2) Vice President, - a bank of twenty hours per pay period

Secretary/
Treasurer,
(2) Stewards

It is agreed that the Union President may not use any of the 20 hour bank of hours allocated for the other representatives. . . .

Id. at 18 (quoting the official time agreement).

The Arbitrator denied the grievance. He concluded that under the parties' official time agreement, Union officers other than the president are not entitled to use any of the 36 hours of official time allocated to the president.

The Arbitrator was persuaded by the fact that "nothing in the language of Section 4, Part 2, of the Official Time Agreement either expressly states or by reasonable implication suggests that other Union officials can use any of the official time allocated to the Union President." Id. at 19. Furthermore, the Arbitrator found that it was reasonable to assume that the parties would have inserted appropriate language in the official time agreement to provide for the use by other Union officers of the official time allocated to the Union president if an agreement to that effect had in fact been reached in negotiations. In the Arbitrator's view, the Union was "asking the arbitrator to legislate new language under the guise of interpretation, thus giving the Union a benefit it failed to achieve through negotiations." Id. at 20. The Arbitrator also found that the Union's argument was "undermined by the fact that the language of Section 4, Part 2, sets up separate 'banks' of official time for the Union President and other officials." Id.

In addition, the Arbitrator rejected the Union's contention that the Agency tacitly agreed that other representatives could use official time allocated to the president. The Arbitrator explained that the Union relied on a comment made by the Agency's chief negotiator Marilyn Teplitz and that Teplitz readily conceded that she had made the comment attributed to her to the effect that management did not care if others used the Union president's official time, provided that the president did not exceed the 36 hours he was allocated. However, the Arbitrator stated that the Union failed to mention that Teplitz proceeded to explain that another officer could use the official time allocated to the president only if that person was delegated to act in the president's behalf. The Arbitrator found that Teplitz' testimony concerning her comment and clarification was corroborated by other Agency witnesses and that their testimony and understanding of the official time agreement was fully supported by the Agency's official notes taken during the negotiations.

The Arbitrator also rejected the Union's reliance on notes prepared by Teplitz prior to negotiations concerning her "fallback" position. The Arbitrator found, contrary to the Union's argument, that nothing in the notes indicated that other representatives could use the president's official time unless the president has delegated his authority to another officer.

The Arbitrator further found that the Agency's position was fully supported by the Navy Mine Warfare Engineering Activity Instruction No. 12711.1, which was prepared and implemented soon after the official time agreement was executed. The purpose of the instruction was to outline procedures for granting, using, and accounting for official time pursuant to the official time agreement. The Arbitrator found that the instruction was persuasive because it had been prepared with the participation of the Union president, who acknowledged that he had authorized the language in the instruction which requires that "leave be charged to the appropriate Union representative when the caps authorized under Section 4, Part 2 of the Official Time Agreement are exceeded." Id. at 24.

Finally, the Arbitrator rejected the Union's contention that to preclude other representatives from using the official time allocated to the Union president denies the Union sufficient time to adequately represent unit employees. The Arbitrator primarily found that because the 56 hours allocated to the Union for official time is the product of collective bargaining, any increase or change in the allocation of those hours must be achieved through collective bargaining and not arbitration.

III. First Exception

A. Contentions

The Union contends that the award is deficient because the Arbitrator reached an erroneous conclusion in deciding that the Union representatives could not be delegated any of the Union president's official time.

The Union argues that although the parties had agreed that a reasonable amount of official time under the agreement for the type of activities involved in this case would total 56 hours, the Arbitrator's interpretation could result in the Union receiving only 20 hours of official time simply because the Union president is unavailable because of his work load. The Union also argues that in view of the language of the agreement, the Arbitrator's conclusion that other Union representatives could not use the president's official time is erroneous. The Union maintains that although there is a prohibition preventing the Union president from using other representatives' time, there is absolutely no prohibition against other representatives using the president's time. The Union further argues that the Arbitrator erroneously accepted the testimony of the Agency's chief negotiator, which was that her comments and notes all indicated that another officer could use the official time allocated to the Union president only if that person was delegated to act in the president's behalf. The Union claims that this distinction is "artificial," "ill-conceived, and ridiculous." Exceptions at 6.

In sum, the Union asserts that the award deprives the Union of the reasonable amount of official time to represent employees guaranteed by the official time agreement.

B. Analysis and Conclusions

We construe the Union's contention that the Arbitrator erred by determining that Union representatives could not use the official time allocated to the Union president as a claim that the award fails to draw its essence from the agreement, and we conclude that the Union fails to establish that the award is deficient. In order for an award to be found deficient on the basis that it does not draw its essence from the agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990) (OSHA).

These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. OSHA, 34 FLRA at 575. The question of the interpretation of the collective bargaining agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576; Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987) (Misco) (as long as an arbitrator is even arguably construing the collective bargaining agreement, a court's conviction that the arbitrator committed serious error does not suffice to find the award deficient).

The Arbitrator's conclusion that Section 4, Part 2 of the parties' official time agreement prohibited other Union officials from using the official time allocated to the president constituted his interpretation and application of the agreement. The Union's argument that the Arbitrator imposed a prohibition not provided by the agreement does not establish that the award fails to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority.

Unlike the awards which the Authority has found deficient because they failed to draw their essence from the collective bargaining agreement, the Union fails to establish that the Arbitrator's interpretation of Section 4, Part 2 conflicts with express provisions of the agreement. See American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725 (1985); Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98 (1980). The Union further fails to establish that the Arbitrator's interpretation is irrational, unfounded, or implausible. Instead, the Union's argument constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and an attempt to have its interpretation of the agreement substituted for that of the Arbitrator. Disagreement with an arbitrator's interpretation and application of a collective bargaining agreement provides no basis for finding that the award does not draw its essence from the agreement or for finding that the award is otherwise deficient under the Statute. See, for example, OSHA, 34 FLRA at 576; Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988) (that the agency or the Authority may have interpreted the agreement differently provides no basis for finding the award deficient; the question of the interpretation of the collective bargaining agreement was a question solely for the arbitrator because it was the arbitrator's construction of the agreement for which the parties bargained); Misco, 484 U.S. at 37-38.

Accordingly, we will deny this exception.

IV. Second Exception

A. Contentions

The Union contends that the award is contrary to law. The Union maintains that section 7114(a)(1) of the Statute imposes an affirmative obligation on the Union to represent all bargaining unit employees and that the parties' official time agreement improperly restricts the time that may be needed to carry out this representational duty. The Union claims that by quantifying the number of hours the Union can use to represent employees, the agreement encroaches on the statutorily imposed duty to represent. Alternatively, the Union argues that, assuming the Union's right to a reasonable amount of official time to represent unit employees can be restricted, the official time agreement unlawfully infringes on the Union's internal management and its right to decide how it is going to delegate the 56 hours of representation.

B. Analysis and Conclusions

We conclude that the Union's exception provides no basis for finding the award to be deficient. We reject the Union's claim that the parties' official time agreement encroaches on the Union's statutory duty to represent employees by restricting the amount of time for representational duties, and we find that the Union fails to establish that the award enforcing that agreement is contrary to the Statute. In our view, the Union's claims evidence a misunderstanding of the provisions of the Statute providing for official time and the obligation of the exclusive representative to represent all employees in the unit.

The parties negotiated an official time agreement allocating specified amounts of official time for the performance of representational activities encompassed by section 7131(d) of the Statute. Under section 7131(d) of the Statute, parties may negotiate amounts of official time that are reasonable, necessary, and in the public interest. For example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221 (1990) (Naval Aviation Depot). The Arbitrator found that under the terms of the parties' agreement on official time, the official time allocated to the Union president cannot be used by other Union officials. Consequently, the Union fails to establish that either the official time agreement or the Arbitrator's award that merely enforces his interpretation and application of that agreement is contrary to section 7131(d) of the Statute. See Naval Aviation Depot, 36 FLRA at 221 (union failed to establish that either the provision of parties' agreement relating to official time or the arbitrator's award based on his interpretation of the provision was inconsistent with section 7131(d)).

We also find that the Union fails to establish that either the official time agreement or the award is contrary to section 7114 of the Statute because it encroaches on the Union's duty to represent unit employees. Simply stated, neither the agreement nor the award restricts the time that may be needed to carry out those representational duties. Instead, the official time provisions of the contract constitute the parties' agreement on the amount of time during which those representational duties may be performed on official time, and the award simply enforces that agreement. As the Arbitrator stated in rejecting the Union's argument that the agreement denied it sufficient time to represent unit employees, the 56 hours allocated to the Union was a product of collective bargaining and any increase or change must be achieved through collective bargaining and not through arbitration.

Moreover, we reject the essence of the Union's exception, which is that section 7114 of the Statute entitles an exclusive representative to perform representational activities of the type covered by section 7131(d) on official time. In our view, section 7114 provides no such right or entitlement. As we noted, the Statute provides quite the opposite: section 7131(d) provides that unions and agencies may negotiate an amount of official time for representational duties that is reasonable, necessary, and in the public interest. The parties negotiated such an agreement and the Arbitrator has applied that agreement. For the Union to now argue that enforcement of the parties' official time agreement is contrary to the Statute is totally without merit. As the court indicated in AFGE Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530 (D.C. Cir. 1986), Congress in section 7131(d) committed the determination of the amount of official time to the union and the agency together, not to either party alone. Furthermore, the U.S. Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 104 (1983), specifically rejected an argument that provisions of the Statute "aimed at equalizing the positions of management and labor suggest that Congress intended employee representatives to be treated as though they were 'on the job' for all purposes. Indeed, the [Statute's] provision of a number of specific subsidies for union activities supports precis