46:1118(101)AR - - HHS, SSA and AFGE, SSA General Committee - - 1993 FLRAdec AR - - v46 p1118
[ v46 p1118 ]
The decision of the Authority follows:
46 FLRA No. 101
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SSA GENERAL COMMITTEE
January 8, 1993
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 Henry L. Segal filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement and memoranda of understanding by refusing to grant official time for Union representatives for, among other things, attendance at the national convention of the American Federation of Government Employees (AFGE). The Arbitrator sustained the grievance in part and denied it in part. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
AFGE Local 1923 represents employees at the Agency's headquarters and is the largest AFGE local representing Agency employees. As had been the custom in the past, the President of AFGE Local 1923, who is also the deputy spokesperson for the Union, invited the Acting Director of the Agency's Office of Labor Relations and a member of her staff to attend the AFGE national convention. The Acting Director stated that she was unable to attend, but that the invited staff member would attend as an observer. By letter of August 15, 1991, the Acting Director stated the following to the Local President: "'As you are aware, [Agency] employees preparing for, traveling to or from, or attending a union convention during duty hours must be in approved leave status; i.e. annual leave or leave without pay.'" Award at 2, quoting Agency's letter. By letter of the same date, the Acting Director provided the same information to the spokesperson of the Union.
By letter of August 20, 1991, the President of AFGE Local 1923 informed the Acting Director that he was unaware of any requirement that Union officers must be on approved leave status to perform Union-management business while attending the convention. He referred to provisions of the national collective bargaining agreement and asserted that existing law confirmed his position. By letter dated September 9, 1991, the Acting Director, citing section 7131(b) of the Statute, stated that it was the Agency's belief that the convention was specifically intended for internal Union business activities and that participants were "not allowed administrative leave for the period they were in nonduty status." Exceptions, Exhibit 3.
The Union filed a grievance on October 8, 1991, alleging that the Agency improperly refused to grant official time for Union representatives to travel to and from, and to attend the AFGE national convention. The Agency denied the grievance on the grounds that the activity at the convention constituted internal business of a labor organization within the meaning of section 7131(b) of the Statute and thus did not qualify for official time under the parties' agreement. The grievance was submitted to arbitration.
The Arbitrator stated the issue before him as follows:
Whether or not the Agency was obligated to grant official leave time to employees serving as delegates and alternate delegates to the AFGE triennial convention at Anaheim, California beginning August 26, 1991 and continuing through August 30, 1991, for normal duty hours attending the convention.
Award at 1.
The Arbitrator noted that, consistent with section 7131 of the Statute, Article 30 of the parties' national agreement, entitled "Official Time," provides for official time for "'union representational activities and labor-management relations functions.'" Id. at 7, quoting Article 30.(*) The Arbitrator rejected the Agency's contention that the bargaining history of Article 30 demonstrates that the parties did not intend to include Union conventions as activities for which official time could be granted under Article 30. The Arbitrator also concluded that no binding past practice had been established which would preclude the Union from asserting that official time should be granted for the activities in this case.
The Arbitrator next considered the scope of section 7131(b) of the Statute, which provides that any activities performed by an employee relating to the internal business of a labor organization shall be performed during the time the employee is in a nonduty status. The Arbitrator rejected the Union's position that national conventions should not be considered as internal union business under section 7131(b). Rather, the Arbitrator determined that each of the activities at the convention must be considered and that "for activities in preparation for interface with management to come within the ambit of [section 7131(d) of the Statute] justifying official time, there must be a showing of a nexus between the activities at the convention and working conditions of employees of SSA, and it should not be too remote." Id. at 14. Accordingly, the Arbitrator found that he was "constrained to divide the time used at the convention during normal duty hours, for activities encompassed by the term 'internal business of a labor organization' and for activities meriting 'official time.'" Id.
Noting the Union's concession that 1 day of the convention concerned the election of Union officials and, therefore, constituted internal Union business for which official time could not be granted, the Arbitrator found that the remaining 4 days of the convention could not "be classified as completely one or the other." Id. The Arbitrator then considered the agenda of the convention and the nature of the workshops. With respect to the remaining 4 days of the convention, the Arbitrator determined that time equivalent to 2 days involved representational matters for which the delegates and alternate delegates were entitled to official time, and time equivalent to 2 days related to the internal business of a labor organization within the meaning of section 7131(b) of the Statute.
Accordingly, the Arbitrator sustained the grievance in part and denied the grievance in part. He concluded that 2 of the 5 days spent at the convention involved representational activity which merited official time, while the other 3 days concerned the internal business of a labor organization. The Arbitrator also concluded that but for the unjustified action of the Agency in denying the delegates and alternates 2 days of official time, they would not have lost the pay or benefits derived from receiving official time for those 2 days. The Arbitrator directed the Agency to adjust the leave records of the employees involved and grant the employees involved official time for those 2 days. He also directed that any employee who was charged leave without pay be reimbursed with 2 days backpay.
III. Positions of the Parties
A. The Agency
The Agency asserts that the Arbitrator's award is deficient because it does not draw its essence from the parties' collective bargaining agreement. Citing various provisions of Article 30 of the national agreement, the Agency maintains that the award does not represent a plausible interpretation of the agreement.
The Agency also asserts that the award is deficient because it is contrary to section 7131(b) and (d) of the Statute. The Agency contends that "all activities associated with a national union convention are inherently structural and institutional and should be excluded as 'internal union business' under section 7131(b) of the Statute." Id. at 13. The Agency argues that a national union convention is a matter which directly concerns the relationship between union members and their union and asserts that "the role of a [U]nion delegate at the national convention was to engage in activities that were of 'primary concern and benefit only to the labor organization.'" Id. at 16. According to the Agency, there is no provision in the agreement for official time for Union convention activities, "nor could one expect official time for such activities to be reasonable, necessary, and in the public interest [within the meaning of section 7131(d) of the Statute], inasmuch as such activities involve internal [U]nion business and transpire far-removed from the workplace." Id.
B. The Union
The Union argues that the Arbitrator's award is not deficient. With respect to the Agency's contention that the award fails to draw its essence from the parties' collective bargaining agreement, the Union maintains that the Agency is making the same arguments it made before the Arbitrator and is essentially attempting to relitigate the matter before the Authority. With regard to the Agency's contention that the award is contrary to section 7131(b) and (d) of the Statute, the Union contends that the Agency has failed to demonstrate that section 7131 prohibited the Arbitrator from finding that the Union was entitled to official time for activities performed at the national convention.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence from the Agreement
To demonstrate that an award is deficient as failing 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; (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; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).
The Agency has not demonstrated that the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. The Arbitrator concluded that Article 30 of the agreement covered certain activities at national Union conventions if those convention activities were not found to constitute internal Union business. He also found that Article 30 provided official time for convention activities that relate to general labor relations or representational matters. We conclude that this exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the award deficient. See U.S. Small Business Administration Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 897-98 (1991) (arbitrator's interpretation of an official time provision of an agreement did not fail to draw its essence from the agreement).
B. The Award Is Not Contrary to Law
The Agency claims that, by sustaining the grievance in part and awarding the grievants 2 days of official time for time spent at the AFGE national convention, the award violates section 7131(b) and (d) of the Statute because it grants official time for the conduct of internal Union business. We find that the Agency has failed to demonstrate that the award is contrary to section 7131(b) and (d) of the Statute. In this regard, we reject the Agency's assertion that all activities associated with a union convention necessarily constitute internal union business under section 7131(b) of the Statute. Rather, we find that such activities must be considered based on the particular facts and circumstances of each case.
In this case, the Arbitrator specifically concluded that certain portions of the Union convention did not constitute internal Union business, but rather constituted general labor relations matters for which official time could be authorized under section 7131(d) of the Statute and was warranted under the parties' collective bargaining agreement. In our view, the Agency is merely disagreeing with the Arbitrator's findings concerning the nature of the convention activities and his conclusion that certain of those activities were appropriate for the granting of official time under section 7131(d) of the Statute and the parties' agreement. See U.S. Department of the Air Force, Randolph Air Force Base, Texas and American Federation of Government Employees, Local 1840, 45 FLRA 727, 731-32 (1992) (disagreement with arbitrator's interpretation of official time provision in agreement provides no basis for finding an award deficient). Accordingly, we will deny the Agency's exception.
The Agency's exceptions are denied.
Article 30 of the parties' labor agreement provides in relevant part:
. . . .
Section 6--Official Time
A. Grievants and witnesses will be granted a reasonable amount of official time for the purpose of preparation and presentation of arbitration and grievances under this agreement.
B. The parties agree that official time is not appropriate for use by a union representative for work performed at home or outside the time the union representative would otherwise be in duty status. This section is not intended to preclude a remedy of straight time in accordance with case law.
Headquarters in Baltimore
Section 1--Carryover Provisions
. . . .
F. Provisions of Official Time to Union Representatives. Official time for union representatives falls in two general categories.
Subsection 1. Time for Union Representational Activities Requested and/or Approved in Advance by Management:
. . . .
Subsection 2. Time for Representational Activities Initiated by Union Representatives.
. . . .
Office of Hearings and Appeals Central Office (Falls Church)
. . . .
A. In accordance with Section 3 above [which pertains to the amount of official time available for union president, vice presidents, chief steward, assistant chief stewards, and stewards], official time will be granted to union functionaries for the following activities covered under this Agreement:
. . . .
7. Time spent in preparation and presentation of union grievances, general labor-management relations matters, and/or unfair labor practice proceedings as determined