47:1314(122)AR - - DOD Contracts Audit Agency Northeastern Region, Lexington, MA and AFGE, Council of Locals 163 - - 1993 FLRAdec AR - - v47 p1314
[ v47 p1314 ]
The decision of the Authority follows:
47 FLRA No. 122
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL OF LOCALS 163
July 22, 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 Cornelius J. McAuliffe 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 contending that the Agency violated the parties' collective bargaining agreement by denying requests from the Union president for official time for himself and the chief steward to perform various Union activities. As relevant here, the Arbitrator sustained the grievance with respect to 20 requests and directed the Agency to reimburse the Union officials for 87 hours of official time covered by those requests.
For the following reasons, we conclude that the award must be modified as set forth below.
II. Background and Arbitrator's Award
On November 5 and 6, 1991, prompted by the Agency's insistence on advance requests for official time, the Union president submitted requests to his supervisor for official time to perform 26 different Union activities, including time for the preparation and investigation of unfair labor practice (ULP) charges. On November 6 and 8, 1991, the supervisor responded to the requests and, as relevant here, denied the requests for official time for the preparation and investigation of the ULP cases on the basis that the parties' collective bargaining agreement "did not permit time for work relating to a ULP charge[.]" Award at 11.
Following the Agency's denial of the requests for official time, the Union filed two ULP charges on November 13, 1991, against the Agency in Case No. BN-CA-20172 and Case No. BN-CA-20173.(1) The record does not contain a copy or a description of the charge in Case No. BN-CA-20172. The charge in Case No. BN-CA-20173 alleged that the Agency's denial of the Union's requests for official time to perform Union activities constituted improper "discrimination [against the Union] and interference with [U]nion activity" in "violation of [U]nion rights" under the Statute. Id. at 5.
On November 27, 1991, the Union filed a grievance over the Agency's denial of the requested official time. The Agency denied the grievance on December 6, 1991, and the matter was submitted to arbitration.
After noting that the parties were unable to agree on the issue, the Arbitrator framed the issue on the merits as follows:
Did the [A]gency violate the contract when it denied the requests made on 11/5 or 11/6, 1991 for time for [U]nion activities for the [U]nion president and the chief steward? If so, what should the remedy be?
Id. at 3.
The Arbitrator stated that, before the arbitration hearing was held, the Agency had filed a motion with the Arbitrator noting, among other things, the ULP charge filed by the Union in Case No. BN-CA-20173. In that motion, the Agency cited section 7116(d) of the Statute and argued that because the issue in that charge concerned facts similar to the facts involved in the grievance, the Arbitrator should exclude "all evidence of past practice regarding Union [use of official] time . . . from the arbitration hearing." Id. at 5.
The Arbitrator denied the Agency's motion. The Arbitrator found that the ULP charge in Case No. BN-CA-20173 and the grievance presented different legal issues. According to the Arbitrator, the ULP charge alleged "[U]nion discrimination and employer interference with [U]nion activity" in violation of the Statute while the grievance alleged a violation of the parties' collective bargaining agreement. Id. The Arbitrator stated that section 7116(d) of the Statute had the effect of "bifurcating the legal issues under the [Statute] from the interpretation and application issues of the collective bargaining contract." Id. However, the Arbitrator found that even if section 7116(d) of the Statute precluded him from deciding the issue presented in the ULP charge, "there is no prohibition on the [A]rbitrator from hearing of the existence or non-existence of a past practice and considering it solely as evidence of the correct interpretation or application of a written clause of the contract." Id. at 6.
The Arbitrator found that the only issue before him was "whether there is a contract violation of Article IV, which provides for the use of working time with pay to perform union activity."(2) Id. at 19. The Arbitrator determined that the issue was controlled by Article IV, Section 3 of the parties' agreement, which he found mandates that a reasonable amount of time be granted "for all matters relating to the administration of the contract and to [the Statute]." Id. at 14 (emphasis in original). The Arbitrator found that the Agency was administering Article IV, Section 3 "tightly and conservatively[,]" but that the provision did not permit such an interpretation because it "grants in clear and forthright language" official time for all matters relating to the administration of the agreement. Id. In this regard, the Arbitrator found that the provision "includes prep[aration] time for grievances at any stage, including arbitration[,]" as well as "investigations, document preparation, written and oral communications, pre-hearing conferences, consultations, meetings with lawyers or potential witnesses, settlement discussions, hearings, and preparation and research for any of these in [ULP] matters." Id. at 14-15. The Arbitrator further found that official time under this provision applies whether or not the date of a meeting for which preparation time is needed has been specifically scheduled.
The Arbitrator next addressed the Agency's contention that Union officials were required to request official time in advance. Noting that Article IV, Section 3 provides that official time "'shall be granted[,]'" the Arbitrator stated that the "supervisor is given no say in this, regardless of whether [A]gency work remains outstanding." Id. at 16 (emphasis in original). The Arbitrator found that the "only restriction seems to be in Section 6 of Article IV, which requires that permission be obtained to leave the work area to conduct [U]nion business. This requirement is not expressed for [U]nion work done at the work area." Id. (emphasis in original). Accordingly, the Arbitrator concluded that "an unlimited amount" of Union work related to collective bargaining, including grievances, [ULPs], and contract negotiations, "can be done at the work area, and no supervisory permission is required." Id. The Arbitrator further found that supervisory permission is required if the Union official has to leave the work area for more than 1 hour.
As relevant here, the Arbitrator sustained the grievance to the extent that the Agency: (1) required the Union officials to obtain permission to conduct Union business at the workplace and to conduct Union business for up to 1 hour away from the workplace; and (2) denied the Union officials permission to conduct Union business away from the workplace for periods over 1 hour. In sum, the Arbitrator granted 20 of the Union's November 5 and 6 requests for official time.
As a remedy, the Arbitrator ordered that "[a] total of eighty-seven (87) hours shall be granted by the [A]gency as reimbursement for time requested [by the Union] in the twenty sustained items." Id. at 20. The Arbitrator also directed the Union's president to "indicate" to the Agency whether any of those hours "were actually performed by [the] Chief Steward . . ., in which case the eighty-seven hours shall be divided" between the two Union officials accordingly. Id.
III. Positions of the Parties
The Agency contends that the Arbitrator's award is contrary to law.
The Agency excepts to the Arbitrator's decision to consider evidence of the existence or non-existence of a past practice between the parties as evidence of the correct interpretation of the parties' contract. Although the Agency concedes that evidence of past practice is normally relevant to issues of contract interpretation, it contends that the Arbitrator should have excluded testimony concerning the parties' past practice because the Union had filed a ULP charge involving the same denials of official time. The Agency asserts that the Arbitrator "should either be barred from considering the issue of past practice, or perhaps in the alternative be obliged to defer to the Authority's findings on the issue" in the ULP proceeding because "inconsistent determinations" could be made by the Authority and the Arbitrator. Exceptions at 7.
Moreover, although it "believed it futile" to make such an argument before the Arbitrator, the Agency states that the Authority could also examine the issue of past practice to determine whether section 7116(d) of the Statute "would preclude consideration of some of the issues that were raised before the Arbitrator." Id. at 7 n.5. The Agency further states that the "legal theories underlying the matter taken to arbitration and the [ULP] complaint do differ somewhat" and that the Authority has held that section 7116(d) "is not applicable when different legal theories underlie the [ULP] and the grievance[.]" Id. at 6, 7 n.5. Nevertheless, the Agency argues that the Authority "may address this issue as well." Id. at 7 n.5.
The Agency also excepts to the Arbitrator's determination that the parties' agreement authorizes official time for matters relating to ULPs, including time for the preparation and investigation of charges. The Agency claims that this determination is contrary to section 7131 of the Statute. The Agency concedes that the Authority has ruled that official time for such purposes is negotiable under section 7131(d) "since 'such matters undeniably involve labor-management relations'[.]" Id. at 5 (quoting American Federation of Government Employees, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 45 FLRA 391, 401 (1992) (INS), petition for review filed, No. 92-1995 (4th Cir. Aug. 19, 1992). However, relying on section 7131(c) of the Statute, the Agency argues that "both the Arbitrator['s] and the Authority's holdings in this regard are contrary to law." Id. According to the Agency, official time for participation in ULP proceedings is authorized only to the extent that it is provided in the Authority's regulations issued pursuant to section 7131(c) of the Statute. The Agency claims that because section 7131(d) expressly applies to official time except as provided in the preceding subsections of section 7131, section 7131(d) does not authorize negotiation of official time for matters covered by section 7131(c), including official time for participation in ULP proceedings.
Finally, the Agency contends that the Arbitrator's remedy is contrary to Social Security Administration and American Federation of Government Employees, AFL-CIO, 19 FLRA 887 (1985), reconsideration denied, 20 FLRA 876 (1985) (SSA). The Agency states that in SSA the Authority held that "[i]f official time is wrongfully denied and representational functions are performed on other than official time, a grievant may be compensated at the appropriate straight-time rate for that time." Id. at 4 (emphasis in original).
The Agency claims that in this case, the Arbitrator made no finding as to whether either the Union president or the Chief Steward "actually used nonduty time to perform the activities in question." Id. The Agency contends that the reference in the award to the division of hours between the Union president and the Chief Steward "clearly indicates that such a determination remains to be made." Id.
The Union contends that the Arbitrator properly allowed testimony on past practice. Further, the Union asserts that granting official time for preparing ULP charges is not illegal under section 7131(d) of the Statute. The Union notes the Agency's concession that the Authority has clearly ruled that such time is properly negotiable, and argues that the Agency does not contend that the Arbitrator made an error, but rather that the Arbitrator "followed the law and the Agency does not like the law in this regard." Opposition at 3. The Union argues that "dislike of the law" is not a proper basis on which to find the award deficient. Id.
Finally, the Union contends that the Agency "has offered no basis whatsoever" to establish that the "award of 87 hours of compensation at the straight[-]time rate" is contrary to law. Id. at 1. The Union asserts that the award does not deviate from SSA and that, rather than objecting to the Arbitrator's remedy as being contrary to law, "the Agency truly objects to the [A]rbitrator's [judgment] as to the number of hours awarded." Id.
IV. Analysis and Conclusions
A. Section 7116(d) and Past Practice
In order for a grievance to be precluded under section 7116(d) of the Statute by an earlier-filed ULP charge: (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been in the discretion of the aggrieved party. For example, U.S. Department of Defense, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 37 FLRA 1268, 1272 (1990). In determining whether a grievance and a ULP charge involve the same issue, we will look at whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar. Id.
The Arbitrator compared the allegation contained in the ULP charge in Case No. BN-CA-20173 with the issue framed in the grievance and found that the legal issues presented in the ULP charge and grievance were different. We agree. Although the ULP charge and the grievance both arose from the Agency's denial of the Union official's requests for official time, the legal theories advanced in the cases are different. The theory advanced in the grievance was that the Agency should not have denied the Union official's requests for official time for work relating to the preparation and investigation of ULP cases because the parties' collective bargaining agreement provides for official time in those circumstances. Therefore, the issue presented for resolution in the grievance was whether the parties' contract provides for official time under the specific circumstances. On the other hand, the theory of the ULP charge was that the Agency should not have denied the official time requests because denying the requests constituted discrimination against the Union and unlawful interference with Union activity in violation of section 7116(a)(1) of the Statute. Thus, the issue presented by the ULP charge was whether the Agency's conduct constituted unlawful discrimination and interference within the meaning of the Statute.
As the theory advanced in the grievance involved solely a question of contract interpretation and application, whereas the theory advanced in the ULP charge concerned a violation of section 7116(a)(1) of the Statute based on discriminatory treatment of the Union and unlawful interference with Union activity, we find that the issues in the two proceedings are clearly different. Specifically, the grievance involved whether the official time provision of the parties' collective bargaining agreement entitled Union officials to official time for certain activities, while the ULP charge alleged an interference with the Union's statutory rights. See, for example, American Federation of Government Employees, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 178 (D.C. Cir. 1992) (noting that the ULP charge and the grievance in Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (OEA) were based on different legal predicates because "the ULP charge in OEA alleged a violation of § 7116(a) [of the Statute], while the grievance claimed a breach of the collective bargaining agreement"); Department of the Interior, Washington, D.C. et al., 31 FLRA 267, 276 (1988) (the Authority found that a grievance and a ULP charge raised different issues where the grievance sought to enforce the employees' contractual right to call-back premium pay, while the ULP charge sought to enforce the union's statutory right not to be required to re-sign a validly executed agreement). Accordingly, we find that section 7116(d) of the Statute did not bar the grievance in this case.(3)
Moreover, the Agency has failed to establish that anything in section 7116(d) bars evidence that is relevant in a ULP proceeding from being used in a grievance proceeding whether or not the grievance itself would be barred by section 7116(d). Therefore, the Agency's contention that the Arbitrator should not have considered the parties' past practice provides no basis for finding the award deficient. Rather, the Agency's contention constitutes nothing more than disagreement with the Arbitrator's application of past practice in his interpretation of the parties' agreement and his evaluation of the evidence. Such disagreement provides no basis for finding the award deficient. See Office of Hearings and Appeals; U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398 (1991) (exception relating to arbitrator's application of past practice constituted nothing more than disagreement with arbitrator's interpretation and application of the collective bargaining agreement and his evaluation of the evidence).
B. The Award Is Not Contrary to Section 7131 of the Statute
We have consistently rejected claims that official time to prepare and investigate ULP charges can only be authorized by the Authority under section 7131(c) of the Statute and not negotiated by the parties under section 7131(d) of the Statute. INS, 45 FLRA at 401 (quoting U.S. Department of Justice and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362, 371 (1990)). The Agency has advanced no persuasive reason for us to find that our holding in these cases is incorrect. We find, therefore, that the Agency's exception to the Arbitrator's determination that the parties' contract authorizes official time for matters relating to ULPs provides no basis for finding the award deficient.
C. The Remedy
The Agency asserts that the award is contrary to Authority precedent because the Arbitrator did not determine whether either Union official had actually performed on nonduty time the representational functions that were the subject of the Union's requests for official time. Section 7131(d) of the Statute authorizes parties to negotiate official time for the performance of representational activities. We have held that where official time authorized by the provisions of a collective bargaining agreement is wrongfully denied and the representational functions are performed on nonduty time, section 7131(d) entitles the aggrieved employee to be paid at the appropriate straight-time rates for the amount of time that should have been official time. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 358-59 (1990) (National Weather Service); American Federation of Government Employees and Social Security Administration, 21 FLRA 69, 72-73 (AFGE); SSA, 19 FLRA at 889.
In this case, the Arbitrator ordered that "eighty-seven (87) hours . . . be granted by the [A]gency as reimbursement for time requested [by the Union] in the twenty sustained items." Award at 20. The Arbitrator also directed the Union president to indicate to the Agency whether any of the 87 hours were actually performed on nonduty time by the Union's chief steward and, if so, required the Agency to divide the 87 hours between the two accordingly. The award does not specifically require reimbursement at straight-time rates and does not address whether the Union officials who performed the covered representational functions did so on nonduty time.
Consequently, consistent with National Weather Service, AFGE, and SSA, we will modify the award so that it explicitly states that the remedy of 87 hours of reimbursement ordered by the Arbitrator is to be paid at the appropriate straight time rate and applies only to the extent that the Union officials actually performed representational functions covered by the 20 requests sustained by the Arbitrator on nonduty time.
The award is modified by replacing the first sentence of the "Remedy" with the following:
A maximum of eighty-seven (87) hours of straight time pay shall be granted by the Agency as reimbursement for time requested in the 20 sustained items, to the extent that the Union officials actually performed representational functions covered by the 20 requests on nonduty time.
Article IV of the parties' collective bargaining agreement, entitled "Official Time," provides in relevant part:
A. Any officially recognized Union representative 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 5 U.S.C., Chapter 71.
1. Examples of "matters relating to the administration of this Agreement" include grievance meetings, both formal and informal, arbitration hearings, and the quarterly labor-management meetings discussed in Article VI.
2. Examples of "joint labor-management matters" arising under Title 5 shall include formal discussions concerning conditions of employment, unfair labor practice settlement meetings, hearings, and formal negotiation (including preparations for negotiation) sessions.
. . . .
C. Where the amount of official time is limited to a "reasonable amount of time," a "reasonable amount of time" will be mutually agreed upon by the Employer and the designated representative on a case-by-case basis. Where resolution cannot be achieved at the local level, the Union official will notify the Regional Resources Manager to resolve the matter.
SECTION 6: Stewards and officers, when desiring to leave their work areas, for substantial (more than one (1) hour) periods of time to discuss in-process or potential grievances or to provide assistance by telephone during work hours shall first obtain authority from their immediate supervisors and will at that time inform their supervisor of the general nature of the business to be transacted and the approximate time they will be away from the work area. Upon entering a work area under the cognizance of a supervisor other than his own, a steward shall contact the supervisor and advise him of his presence and the name of the employee to be contacted. Upon return to their own work areas, stewards and employees will report to their immediate supervisors and advise them of their return. Any denial of official time will be reduced to writing upon request of the Union. Normally, only one Union representative will be granted reasonable official time to act in a representative capacity in any individual case. In the event additional representation is required, it will be at the mutual agreement of the Employer and the Union.
Section 7131 of the Statute, entitled "Official Time," provides:
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.
(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.
(d) Except as provided in the preceding subsections of this section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
(If blank, the decision does not have footnotes.)
1. The charge in Case No. BN-CA-20172, along with two other charges filed after the grievance in this case, led to the issuance of a consolidated complaint by the General Counsel. A hearing on the complaint was held before an Administrative Law Judge in October 1992 and the case is pending before the Judge. The charge in Case No. BN-CA-20173 was withdrawn in January 1992.
2. The pertinent text of Article IV of the parties' agreement and of provisions of the Statute is set forth in the Appendix to this decision.
3. Having found that the issues in the two proceedings are clearly different and, therefore, that section 7116(d) of the Statute did not bar the grievance in this case, we express no view as to whether: (1) the ULP charge in Case No. BN-CA-20173 presented an issue that was cognizable under section 7116 of the Statute; and (2) whether section 7116(d) bars consideration by an arbitrator of an issue that was previously included in a ULP charge even though it presented no issue that was cognizable under section 7116. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441, 447 n.2 (1990).
Additionally, we note that the Agency does not appear to argue that the ULP charge in Case No. BN-CA-20172 bars the grievance in this case. As stated above, the record does not contain a copy or a description of this charge. As there is nothing in the record that describes t