49:1111(105)AR - - HQ Air Force Materiel Command and AFGE, Council 214 - - 1994 FLRAdec AR - - v49 p1111



[ v49 p1111 ]
49:1111(105)AR
The decision of the Authority follows:


49 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

HQ AIR FORCE MATERIEL COMMAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214

(Union)

0-AR-2532

_____

DECISION

May 25, 1994

_____

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 Frank A. Keenan 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 Arbitrator sustained a grievance with regard to the work location of a Union official on 100 percent official time. The Arbitrator also retained jurisdiction over various remedial actions pending completion of the parties' contract negotiations.

For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute. Accordingly, we will set the award aside.

II. Preliminary Matter

The Union claims that the Agency's exceptions were untimely because they were not filed within 30 days following service of the award as required under section 7122(b) of the Statute. The Union states that the Agency was required to file its exceptions by October 21, 1993, but did not do so until October 25, 1993. The Union acknowledges that section 2429.22 of the Authority's Rules and Regulations provided the Agency with 5 additional days for service of the exceptions by mail but argues that the Authority may not, by regulation, extend a jurisdictional deadline established by the Statute. The Union also maintains that Federal courts have rejected rules that sought to extend jurisdictional filing deadlines.

The Union has previously raised such arguments before the Authority and the Authority has repeatedly rejected them. Most recently, in International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 433 (1993), we reiterated our position that the 5-day allowance for service by mail does not extend the prescribed period for filing documents but, rather, is an allowance for mail service. See also U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 46 FLRA 1297, 1301 (1993) (Hill Air Force Base); Federal Trade Commission, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211, 34 FLRA 14, 15 (1989). We have additionally rejected arguments that our interpretation of our Rules and Regulations is improper. Hill Air Force Base; U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1205-06 (1990). Accordingly, we will consider the Agency's exceptions.

III. Background and Arbitrator's Award

Commencing in the early 1980s, the parties' master collective bargaining agreement contained a provision, denominated Section 4.12, which authorized a full-time Union representative at the Agency's headquarters located at Wright-Patterson Air Force Base (AFB), Ohio. During subsequent contract negotiations in 1989, the parties agreed to provide a second full-time representative at headquarters under Section 4.12.(1) The grievant, Paul Palacio, assumed a position as a "4.12 representative" in June 1982, requiring him to relocate from Kelly AFB, Texas to Wright-Patterson AFB, Ohio. Award at 1. In April 1990, Palacio requested and was granted a temporary relocation to Kelly AFB due to a personal emergency. Palacio retained his status as a 4.12 representative, entitled to 100 percent official time, until September 1990. At that time, he was elected as a local Union representative at Kelly AFB and, as such, was entitled to remain at Kelly on 100 percent official time under Section 4.13 of the parties' agreement.(2) Palacio was not reelected to the local Union position and, in February 1992, sought resumption of his representative status under Section 4.12. The Agency advised Palacio that he would have to return to Wright-Patterson AFB in order to receive official time under the parties' agreement. Palacio declined to relocate to Wright-Patterson AFB and, instead, remained at Kelly AFB where he was placed in leave without pay status and worked for the Union from his home. In April 1993, Palacio resumed his work duties at Kelly AFB and did not draw any official time under either Section 4.12 or Section 4.13.

In October 1992, the parties' agreement expired. Palacio advised the Agency that the Union would no longer be bound by the provision in Section 4.12 that designated the location of the full-time Union representatives. In the Union's view, the location of full-time representatives constituted a permissive subject of bargaining. In response, the Agency claimed that management had the right to determine the work site of employees under Section 4.12 and that management had decided that the employees who had been granted Section 4.12 official time were required to report to Wright-Patterson AFB. The Agency also claimed that the practice regarding official time under Section 4.12 survived the expiration of the agreement.

The Union subsequently filed a grievance claiming that the Agency "committed a statutory unfair labor practice" in violation of the Statute and the parties' agreement by "den[ying] our rights under the Statute concerning those permissive subjects of bargaining by refusing to recognize those subjects as identified by the [U]nion as permissive." Award at 5. As a remedy, the Union requested a number of affirmative actions, including a cease and desist order and reimbursement to the Union for monies paid to Palacio that would have been paid by the Agency had Palacio been placed on 100 percent official time. The Agency denied the grievance.

When the grievance was not resolved, it was submitted to arbitration. The parties did not stipulate to any issues. However, the Arbitrator found that the Union's formulation of the issue, set forth below, was appropriate:

Is Management required to honor the [Union's] decision not to be bound by that portion of Section 4.12 of the Contract, which dictates the work location of full-time representatives? And if so, what should the remedy be?

Id. at 21.

The Arbitrator first addressed the Agency's claim that the grievance was not arbitrable and the Union's assertion that the Agency's arbitrability challenge was untimely. The Arbitrator rejected the Union's contention, finding that a substantive arbitrability challenge can be raised at any time. The Arbitrator also rejected the Agency's claim. The Arbitrator found that the grievance and arbitration provisions of the parties' agreement survived the expiration of the agreement because they are mandatory subjects of bargaining and, further, that the agreement was "broad enough to encompass arbitral consideration of an unfair labor practice violation . . . ." Id. at 22.

With respect to the merits of the grievance, the Arbitrator concluded that "the Agency was not entitled to continue to insist on a continuation of . . . Section 4.12" after the parties' agreement expired and the Union gave notice that it would no longer be bound by that provision. Id. at 28. In reaching this result, the Arbitrator rejected the Agency's argument that the provisions of Section 4.12 authorizing 100 percent official time and requiring that the full-time Union representatives be stationed at Wright-Patterson AFB were "inextricably intertwined[,]" and, as such, were mandatory subjects that survived the expiration of the agreement. Id. at 23. The Arbitrator found that the Agency's position was "undermined by the fact that 5 U.S.C. 7131(d) makes mandatory only the 'amount' of official time as a subject of bargaining." Id. at 24.

The Arbitrator also relied on the Authority's decisions in Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA 100 (1984) (FAA) and American Federation of Government Employees, AFL-CIO and U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA 272 (1980) (AFLC, Wright Patterson). In particular, the Arbitrator found that the requirement that Union representatives who are on 100 percent official time must be located at headquarters is "indistinguishable" from the situation in AFLC, Wright-Patterson, in which proposals that involved the designation of union representatives from prescribed organizational levels were found to infringe on the union's right to designate its own representatives. The Arbitrator stated that "where an employee will discharge his representational functions is no less a sole [u]nion prerogative than is the [u]nion's determination of who will discharge such functions[.]" Award at 28 (emphasis in original). Consequently, the Arbitrator concluded that after the agreement expired and the Union indicated its intent that it would no longer be bound by the provision in Section 4.12 requiring full-time Union representatives to be designated from the ranks of employees assigned to headquarters, the Agency could not insist that the provision continue in effect.

The Arbitrator then addressed the Union's requested remedy and found that it raised a number of issues that could be rendered moot as a result of the parties' impending negotiations. As a result, the Arbitrator ordered the Agency to cease and desist from insisting that "all 4.12 representatives be from among the ranks of those employees assigned to [h]eadquarters[.]" Id. at 29. Additionally, the Arbitrator retained jurisdiction over other remedial actions pending further contract negotiations.

IV. Positions of the Parties

A. Agency's Exceptions

The Agency excepts to the award on three grounds. First, the Agency contends that the Arbitrator exceeded his authority by making a negotiability determination. In the Agency's view, only the Authority is empowered to render negotiability determinations. In support of this contention, the Agency cites Interpretation and Guidance, 11 FLRA 626 (1983) and Department of Housing and Urban Development and American Federation of Government Employees, Local 476, AFL-CIO, 18 FLRA 783 (1985) (HUD). Second, the Agency argues that the Arbitrator exceeded his authority by determining that the Union could rescind the agreement provisions relating to the location of Union representatives. In this connection, the Agency states that the Arbitrator's finding that the Union rescinded the agreement is "inextricably intertwined" with the Arbitrator's negotiability determination. Exceptions at 5. The Agency maintains that because the Arbitrator lacked the authority to make a negotiability determination, he lacked authority to rule on the rescission issue.

As its third exception, the Agency asserts that the Arbitrator's finding that the Union could rescind the portion of Section 4.12 regarding the location of the Union representative is incorrect, as a matter of law, because the finding does not draw its essence from the agreement. Rather, the Agency views Section 4.12 as a mandatory subject of bargaining that survived the expiration of the agreement. Thus, assuming the Arbitrator was authorized to make a negotiability determination, the Agency claims that the Arbitrator's interpretation of Section 4.12 is wrong and that neither of the cases relied on by the Arbitrator is directly on point. The Agency claims that the Arbitrator extrapolated from the referenced Authority decisions to find that Section 4.12 contained a limit on the Union's selection of its representatives and that this limitation was a permissive subject of bargaining that could be repudiated once the agreement expired. The Agency asserts that Section 4.12 does not limit the Union's selection of desired representatives but, rather, is a reasonable accommodation that deals with "geographic reality[.]" Id. at 6. According to the Agency, Section 4.12 in no way limits the Union's right to designate its representatives, but instead provides 100 percent official time for two Union representatives located at Agency headquarters. The Agency claims that the Arbitrator's decision contradicts the plain language of Section 4.12 and the parties' intent to link official time to representatives at headquarters. In the Agency's view, the Arbitrator's interpretation of Section 4.12 is a "dissection of this provision . . . giving meaning to one phrase in a single sentence and expunging the rest." Id. at 7.

B. Union's Opposition

The Union claims that the Arbitrator did not make a negotiability determination but, rather, resolved an unfair labor practice issue. The Union adds that if a negotiability issue was resolved, such resolution is consistent with the role of an arbitrator in resolving grievances. Consequently, the Union maintains that the Arbitrator did not exceed his authority.

As to the Agency's third exception, the Union asserts that the Agency has misconceived the nature of the grievance. According to the Union, the issue in this case involved a claimed violation of the Statute and not a matter of contract interpretation.

V. Analysis and Conclusions

An arbitration award is deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation. U.S. Department of the Navy, Glenview Naval Air Station, Glenview, Illinois and American Federation of Government Employees, Local 1641, 48 FLRA 1420 (1994). In this case, we find that the award is inconsistent with section 7131(d) of the Statute. Accordingly, we will set the award aside.

A. The Arbitrator Did Not Exceed His Authority

The Agency maintains, based on the Authority's decision in HUD,(3) that the Arbitrator exceeded his authority by making a negotiability determination that only the Authority was authorized to resolve. The Agency further maintains that because the Arbitrator lacked the authority to make a negotiability determination, he also lacked the authority to rule on whether the Union could rescind the contract provision relating to the location of Union representatives. We disagree.

In Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347 (1984) (Louis A. Johnson) the Authority held, based on its position in Interpretation and Guidance, 11 FLRA 626 (1983), that negotiability disputes which arise between an agency and an exclusive representative under section 7117(c)(1) must be resolved only by the Authority as required by section 7105(a)(2)(E) and that such disputes may not be resolved by an arbitrator in the guise of a grievance. The Authority further ruled, however, that "disputes relating to the meaning and application of provisions of the parties' collective bargaining agreement, including provisions therein dealing with the obligation to bargain, are subject to resolution under the negotiated grievance procedure and a negotiability appeal is not the proper forum in which to resolve such disputes." Louis A. Johnson, 15 FLRA at 350. Thus, grievance arbitrators may consider "the collateral issue of the obligation to bargain" in the course of resolving a grievance as long as their conclusions are "consistent with the Statute and relevant decisions of the Authority . . . ." Id. at 351.

In this case, the issue before the Arbitrator was whether the Agency's actions violated Section 4.12 of the parties' bargaining agreement. Thus, the Arbitrator was resolving a dispute between the parties concerning the meaning and application of a specific provision of the parties' agreement. As the Authority concluded in Louis A. Johnson, such disputes are properly raised under the negotiated grievance procedures. See also United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 578-79 (1990); Panama Canal Commission and International Organization of Masters, Mates and Pilots, 27 FLRA 907, 910 (1987) (Panama Canal Commission). Additionally, in the course of resolving the dispute before him, the Arbitrator considered the parties' arguments regarding the negotiability of Section 4.12. However, his findings as to those arguments were "collateral" to his resolution of the instant grievance. Id.; Louis A. Johnson, 15 FLRA at 351. Consequently, we conclude that the Agency's arguments that the Arbitrator exceeded his authority provide no basis for finding the award deficient.

B. The Award Is Inconsistent With Law

Although the Arbitrator was not precluded from considering the collateral issue of the obligation to bargain in the course of resolving the grievance, his determination must be consistent with the Statute and relevant Authority precedent. Panama Canal Commission, 27 FLRA at 911; Louis A. Johnson, 15 FLRA at 351. The Agency argues in this regard that, assuming the Arbitrator did have the authority to make a negotiability determination, his interpretation of Section 4.12 of the parties' agreement is wrong as a matter of law. We agree.

Section 7131(d) of the Statute provides that "any employee representing 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." Under this provision, the parties to a collective bargaining relationship are required to negotiate over proposals involving the amount of official time available for use by union representatives during any particular time period. American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986). Thus, if a matter is encompassed within the definition of section 7131(d), it will constitute a mandatory subject of bargaining.

In Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 689 (1987) the Authority held that the use of official time under section 7131(d) includes "its amount, allocation and scheduling . . . ." Similarly, we now find that the location at which official time is to be exercised is also inextricably connected to the use of official time and is, therefore, a matter over which bargaining is required. We note, in this regard, the statement in the legislative history of the Statute that the provision that became section 7131(d) "makes all other matters concerning official time for unit employees engaged in labor-management relations activity subject to negotiation . . . ." H.R. Rep. No. 1403, 95th Cong., 2d Sess. 59 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, (Comm. Print No. 96-7), at 705 (1979) (emphasis added).

In arriving at this finding, we specifically reject the Union's claim that the location at which official time is granted is a permissive subject of bargaining under Authority precedent involving a union's right to designate its own representatives. The determination of the location of representatives who may engage in representational activity on official time in no way dictates the identity of the union's representatives. Similarly, although the negotiation of official time for a national union officer would be a mandatory subject of bargaining under section 7131(d), the union would remain free to determine the identity of that officer.(4) As we have stated, there is no statutory entitlement to perform on official time representational duties of the type covered by section 7131(d). U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1214 (1991) (agreement concerning the amount of time during which representational duties may be performed on official time does not encroach on the Union's duty to represent unit employees). Thus, regardless of the amount of official time available for section 7131(d) purposes, a union is free to designate as many representatives as it wishes at any location it chooses. But those representatives may not perform their duties on official time for matters covered by section 7131(d) unless the parties have negotiated an agreement to that effect.

In this case, the parties negotiated an amount of official time, encompassed within Section 4.12, to be granted to two Union representatives assigned to Agency headquarters. Contrary to the Arbitrator's determination, we conclude that this provision in no way constrains the Union in its statutory right to designate its representatives. Rather, this provision merely embodies the negotiated agreement that entitles two Union representatives located at Agency headquarters to receive 100 percent official time. In our view, there is no reason why Section 4.12 would preclude the Union from continuing to designate the grievant as a Union representative. It would limit the grievant's ability to perform his representational responsibilities on official time only if he chooses to remain at Kelly AFB. Indeed, the record reflects that prior to the expiration of the parties' agreement, the grievant was placed on leave without pay status and worked for the Union out of his home. Thus, as the facts of this case clearly establish, the only limitation that Section 4.12 imposes on the Union concerns the number of representatives who are entitled to receive 100 percent official time under the terms of the parties' agreement. Otherwise, this provision in no way limits the Union's right to designate as many representatives, selected from as many Agency locations, as circumstances may require.

For this reason, AFLC, Wright-Patterson, relied on by the Arbitrator, can be readily distinguished. In that case, the Authority found nonnegotiable several agency proposals that required the union to designate its representatives from prescribed organizational levels when dealing with the agency in the performance of certain representational functions. The Authority concluded that those proposals would have infringed upon the union's right to designate its own representatives. Unlike AFLC, Wright-Patterson, the present case involves only the provision of official time and presents no interference with the designation of the Union's representatives.

Having found that Section 4.12 of the parties' agreement constitutes a mandatory subject of bargaining under relevant Authority precedent, we further find that it survived the expiration of the parties' agreement, unless the parties expressly agreed otherwise. See FAA, 15 FLRA at 102; Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984) (upon the expiration of the parties' agreement, mandatory subjects of bargaining continue, to the maximum extent possible, absent express agreement to the contrary or unless modified in a manner consistent with the Statute; permissive subjects of bargaining may be unilaterally terminated by either party). There is no evidence that the parties agreed to any modification of Section 4.12. Accordingly, we conclude that the Arbitrator's award, finding that the Union unilaterally could rescind a portion of Section 4.12, is deficient as inconsistent with section 7131(d) of the Statute. Therefore, we will set the award aside.(5)

VI. Decision

The award is set aside.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Section 4.12 provides:

100 percent official time is provided for two union representatives at AFLC headquarters. These representatives are required to report to their work site at the beginning and end of each workday unless other arrangements are agreed to in advance. The work site of these representatives is designated as the office provided by HQ AFLC for use of AFGE Council 214 in accordance with Article 33.01.

2. Section 4.13 provides:

In addition to the representatives authorized official time provided above, the Union is hereby authorized the following numbers of representatives with 100 percent official time:

a) 4 100% representatives at Warner Robins AFB, Kelly AFB, Tinker AFB, Hill AFB, and McClellan AFB.

b) 2 100% representatives at Newark Air Station and Wright-Patterson AFB.

c) 1 100% representative at Battle Creek, Michigan.

3. We note that the Agency's reliance on HUD is misplaced. There, the Authority addressed the authority of an interest arbitrator to resolve a negotiability dispute. That authority differs in significant respects from the authority of a grievance arbitrator to resolve disputes involving the obligation to bargain that are collateral to issues concerning the meaning and application of a collective bargaining agreement.

4. In that situation, unlike the one presented here, however, the right to official time would inhere in a particular officer, regardless of where the officer was located or reassigned.

5. In view of our decision, it is unnecessary to address the Agency's additional contention that the award fails to draw its essence f