41:0394(40)AR - - Treasury, Customs Service, Region IV, Miami District and NTEU Chapter 137 - - 1991 FLRAdec AR - - v41 p394
[ v41 p394 ]
The decision of the Authority follows:
41 FLRA No. 40
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Roger I. Abrams filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Union filed a grievance concerning the Agency's administration of the official time provisions of the parties' collective bargaining agreement. The Union alleged that the Agency violated the parties' agreement by requiring the grievant, a Union official, to report each morning at 8 a.m. to his supervisor before he could be granted official time. The Arbitrator sustained the grievance and ordered the Agency to cease and desist from enforcing the reporting requirement before considering the grievant's requests for official time.
For the reasons stated below, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is a Senior Inspector who has served as president or chief steward of the Union for 15 years. The grievant uses "a considerable amount" of official time under the parties' collective bargaining agreement. Award at 4. Previously, in requesting official time, the grievant supplied his supervisor with a weekly schedule of his Union plans for the week, told his supervisor where he would be, and reported directly to the Union office in the morning. The grievant was not required to report for duty first before requesting official time. The grievant claimed that he followed this procedure for obtaining official time for over 10 years.
In November 1989, the grievant was reassigned from the docks to the cargo audit team under new supervision. The grievant informed his new supervisor that his Union position would require official time. The grievant's supervisor responded that, in order to be granted official time, the grievant would have to report to him at 8 a.m. and that he would grant the grievant's request on a day-to-day basis.
On November 30, 1989, the Union filed a grievance protesting the Agency's administration of the official time provisions in the parties' agreement. The grievance was denied and subsequently submitted to arbitration.
The parties stipulated before the Arbitrator to the following issue: "Did the Agency violate the Agreement by requiring [the grievant] to report each morning at 8:00 a.m. before it considered his request for official time?" Id. at 2.
Before the Arbitrator, the Union asserted that the Agency violated Article 33 of the parties' agreement by requiring the grievant to report each morning to his supervisor before he could be granted official time.(*) The Union argued that the Agency's decision to place restrictions on the grievant's use of official time was motivated by the grievant's Union involvement.
The Agency argued before the Arbitrator that its "policy requiring [the grievant] to report each day before requesting official time was based on Article 25, Section 6A, of the [parties'] [a]greement." Id. at 14. The Agency also argued that the Union did not meet its burden in this case of showing that there was a past practice that was violated. The Agency took the position that the grievant was seeking "'an abusive amount of time' . . . . [and] cannot be given his total work day to do Union work . . . ." Id. at 13 (quoting Agency Brief). The Agency also argued that under Article 33 "only a 'reasonable' amount of time is allowed." Id.
The Arbitrator determined that Article 33 of the parties' collective bargaining agreement governed the matter in dispute. The Arbitrator noted that although Article 33, section 12, provides "that consent of a supervisor is required and certain information must be supplied, it does not indicate whether that consent can be prearranged or must be obtained on a day-to-day basis at the beginning of a shift." Id. (emphasis in original). The Arbitrator also noted that Article 33 does not state when a request for official time may be made.
The Arbitrator found, contrary to the Agency's claim, that Article 25, section 6A, of the parties' agreement "has nothing at all to do with official time[.]" Id. at 14. The Arbitrator noted that Article 25 only provides "that employees who are required to wear a uniform must report to the first duty station in a neat, clean, and complete uniform." Id.
The Arbitrator found that the evidence before him that there was a past practice was "very useful in interpreting the relevant contract provisions in Article 33." Id. at 16. The Arbitrator found that the parties' agreement "protects the Union's right to use a 'reasonable amount of official time for all matters relating to the administration of this Agreement and joint labor-management relations matter[s] arising under Chapter 71, Labor-Management Relations, Title 5, United States Code.'" Id. at 18 (quoting Article 33, section 7.A. of the parties' agreement). The Arbitrator also found that "Article 33 does not limit when official time may be requested . . . ." Id. at 19. Therefore, the Arbitrator determined that the Agency violated the parties' agreement by requiring the grievant to report each morning before the grievant's request for official time was considered.
The Arbitrator sustained the grievance because the Agency "unreasonably interfered with the contractual right to take official time for legitimate Union business." Id. As a remedy, the Arbitrator ordered the Agency "to cease and desist from enforcing the requirement that [the grievant] report each morning at 8:00 a.m. before it considers his request for official time." Id. at 20.
III. Positions of the Parties
The Agency contends that the Arbitrator's award is contrary to law and does not draw its essence from the parties' agreement.
The Agency contends that the Arbitrator "should have followed the schematic theory implemented by the Authority in past practice cases, but instead, the [Arbitrator's] decision avoids case law[, and] reaches a conclusion which is without any legal underpinning." Agency's Exceptions at 8. The Agency contends that the Arbitrator's approach to his decision "resulted in a misallocation of the burden of proof." Id. In this regard, the Agency argues that because the Arbitrator failed to use the established criteria for finding a past practice, the grievant was never required to make a prima facie case. Therefore, the Agency maintains it was forced into a position of demonstrating the nonexistence of a past practice. The Agency argues that "[t]he correct allocation of the burden of proof would require the Agency only to rebut the presumption of a past practice." Id. at 8-9.
The Agency also argues that the Arbitrator's decision does not draw its essence from the parties' agreement because the Arbitrator's interpretation of that agreement was flawed. The Agency argues that it has been denied due process by a decision that "fails to consider legal precedent, misallocates the burden of proof, and misinterprets the National Agreement[.]" Id. at 9.
The Union asserts that the Arbitrator's award is not contrary to law. The Union claims that it was not necessary for the Arbitrator to find that the Union was required to make a prima facie case or that the Agency had to rebut the presumption of a past practice as claimed by the Agency. The Union contends that the Arbitrator used the finding that there was a past practice only as a guide to help him interpret the provisions of Article 33, section 12. The Union notes that the "'custom or past practice of the parties'" is an important standard used by arbitrators in the interpretation of ambiguous contract language. Union's Opposition at 5 n.3.
The Union asserts that the Arbitrator's award draws its essence from the agreement. The Union argues that the Agency is only disagreeing with the Arbitrator's interpretation of the agreement, which is binding on the parties.
IV. Analysis and Conclusions
We conclude that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.
The Agency's contention that the Arbitrator's award is contrary to law because it fails to follow Authority case law on past practice provides no basis for finding the award deficient. The issue before the Arbitrator, as stipulated by the parties, was whether the Agency had violated the parties' collective bargaining agreement. In resolving the issue, the Arbitrator considered the parties' past practice only to interpret the agreement. Consequently, we find that the Agency's argument that the award is contrary to law is no more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and his evaluation of the evidence. See U.S. Department of the Navy, United States Marine Corps, Finance Center, Kansas City, Missouri and American Federation of Government Employees, Local 2094, 38 FLRA 221, 228-29 (1990) (Finance Center); Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789, 790-91 (1988).
The Agency claims that the Arbitrator misallocated the burden of proof from the Union to the Agency. The Arbitrator concluded that the evidence demonstrated that the Agency violated the parties' collective bargaining agreement. Unless a specific burden of proof is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate. U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, 40 FLRA 88, 93 (1991). In the absence of any evidence that the Arbitrator was obligated to apply a specific burden of proof, the Agency's claim that the Arbitrator misallocated the burden of proof to the Agency provides no basis for finding the award deficient.
The Agency also argues that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Treasury, U.S. Customs Service, New York, New York and National Treasury Employees Union, 39 FLRA 278, 284 (1991).
The Agency has not demonstrated that the award is deficient under any of these tests. The Arbitrator interpreted and applied the provisions of the parties' collective bargaining agreement to find that the Agency violated the agreement by requiring the grievant to report each morning before the grievant's request for official time was considered. We have no basis on which to conclude that the Arbitrator's interpretation of these provisions is implausible, irrational, or unconnected to the wording of the agreement. In our view, the Agency's argument in this regard constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement, and his reasoning and conclusions. See Finance Center, 38 FLRA at 228-29.
The Agency's exceptions are denied.
Article 33, "Stewards And Official Time," provides in relevant part:
Section 7.A. Stewards or chief stewards designated pursuant to the terms of this Article, or Chapter President recognized pursuant to the terms of this Article, shall be granted a reasonable amount of official time for all matters relating to the administration of this Agreement and joint labor-management relations matters arising under Chapter 71, Labor-Management Relations, Title 5, United States Code.
. . . .
Section 9. The official time authorized under this Article may not be used as a matter of routine. It shall be the duty of all stewards and Union officers utilizing official time under this Article to conserve and minimize the use of official time to the greatest extent practicable and to conduct necessary representational activities expeditiously and efficiently.
. . . .
Section 12. Union officials or stewards who wish to perform representational functions during duty hours must receive the consent of their immediate supervisor before undertaking such activity. The steward or official shall provide sufficient information about the nature of the representational activity he desires to perform so that the appropriateness of the activity can be verified. As a minimum, the steward or Union official must explain to the supervisor where he is going, the purpose and nature of his visit, and when he expects to retur