51:1371(111)AR - - DOD, Army and Air Force Exchange Service and AFGE [ Worldwide Consolidated Bargaining Unit ] - - 1996 FLRAdec AR - - v51 p1371



[ v51 p1371 ]
51:1371(111)AR
The decision of the Authority follows:


51 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(WORLDWIDE CONSOLIDATED BARGAINING UNIT)

(Union)

0-AR-2590

_____

DECISION

June 14, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Barnett M. Goodstein 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 Regulations. The Union filed an opposition to the Agency's exceptions.

As relevant here, the Arbitrator sustained a grievance concerning the use of official time by employees acting as Union representatives.

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance contending that the Agency violated the parties' master collective bargaining agreement by limiting the amount of official time available for use by Union representatives and the conditions under which it could be used. The grievance was submitted to arbitration.

The parties did not stipulate the issues for the Arbitrator's consideration, but rather individually raised issues concerning whether the Agency violated the parties' agreement with respect to the: (1) amount of official time granted Union representatives to perform representational functions and when it could be used; (2) use of Agency telephones by Union representatives "for receiving or making telephone calls for representational purposes;" (3) application of the "release" and "delay[]" provisions of the agreement; and (4) use of workload requirements to control issues for which official time is authorized. Award at 5 and 6. Because the parties did not stipulate the issues, the Arbitrator stated that he would address all issues raised by the parties.

The Arbitrator recognized that Article 9, Section 5 of the parties' agreement requires Union representatives to "use official time prudently . . . ."(2) Id. at 8. The Arbitrator found that other portions of Article 9, Section 5 require a Union representative who is seeking to leave the work area during working hours for representational purposes to first notify the supervisor and report the estimated time required. The Arbitrator further interpreted Article 9, Section 5, and Article 10, Section 7 as allowing Union representatives who have telephones at their desks to use those telephones for representational purposes without giving management advance notice. Additionally, the Arbitrator found that the part of Article 9, Section 5 requiring Union representatives to notify their supervisors before leaving the work area and the 2-day delay provision under Article 6, Section 3 did not apply to a Union representative's use of a telephone for representational purposes. According to the Arbitrator, the only time limitations on Union representatives' use of telephones for representational purposes are those that the parties negotiate. The Arbitrator also found that the Agency had violated the agreement by removing a telephone from the work desk of a representative who used the telephone for representational purposes.

As to the Union's claim that the Agency was violating Article 6, Section 3 by using the 2-day delay provision to restrict Union representational activity, the Arbitrator found that the agreement did not permit the Agency to seek specific information from the representative or to restrict the amount of time requested by the representative. Rather, according to the Arbitrator, the agreement was silent on both counts and left those matters for the parties to negotiate. The Arbitrator noted that if during such negotiations, the parties could not agree on the amount of official time, they could grieve the matter under their negotiated grievance procedure.

The Arbitrator directed Union representatives to put all requests for official time in writing and management to respond to such requests in writing, with an explanation as to particular workloads requiring a 2-day delay and an indication of the date and time when Union representatives could leave the work area to perform representational duties. The Arbitrator directed the parties to give their written requests and responses to each other upon completion, and stated that these requirements would provide a record that could be presented to an arbitrator to use in resolving subsequent grievances.

III. Exceptions

A. Agency's Contentions

With respect to the portion of the award concerning Union representatives' use of telephones, the Agency contends that the award is contrary to law. According to the Agency, the award grants representatives "the unfettered right to use the [Agency's] telephones for representational duties, without limitation, and without obtaining a release on official time," and thereby denies the Agency its rights to direct employees and assign work under section 7106(a)(2)(A) and (B), respectively, and to negotiate an amount of official time which is consistent with section 7131(d) of the Statute.(3) Exceptions at 3. The Agency also contends that, given the fact that the Agency's telephones are necessary for the efficient conduct of its business, the award is contrary to section 7101 of the Statute. Further, relying on earlier awards by different arbitrators, the Agency asserts that this portion of the award does not draw its essence from the agreement.

With respect to the portion of the award requiring employees to make written requests for official time and management to make written responses to such requests, the Agency contends that the Arbitrator exceeded his authority because: (1) that issue was not before him; (2) he fashioned a remedy without finding a violation of the agreement; and (3) the requirement of written requests and responses was one that he added to the agreement. The Agency also asserts that this portion of the award does not draw its essence from the agreement.

B. Union's Opposition

The Union asserts that the award is consistent with law because the parties negotiated their agreement pursuant to section 7131(d) of the Statute and, under applicable precedent, section 7131(d) is an exception to management's rights under section 7106(a). The Union also argues that the award draws its essence from the parties' agreement and that the Arbitrator did not exceed his authority.

IV. Analysis and Conclusions

A. The Portion of the Award Concerning Union Representatives' Use of Agency Telephones for Representational Purposes Is Not Contrary to Sections 7106(a)(2)(A) and (B), 7131(d), or 7101 of the Statute

Section 7131(d) of the Statute carves out an exception to management's rights under section 7106(a) of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 346-48 (1992) (BATF) (Member Armendariz concurring in part and dissenting in part); Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987) (MEPS). Cf. U.S. Immigration and Naturalization Service v. FLRA, 4 F.3d 268, 272 n.7 (4th Cir. 1993) (In addressing an agency's contention that section 7106(a)(2)(B) proscribes granting official time generally, the court stated that "[r]eading the various management rights in § 7106(a) in such a categorically broad way would remove all but the most trivial matters from the bargaining table."). Under the carve-out exception, matters that pertain to "'the use of official time under section 7131(d)--that is, its amount, allocation and scheduling--[are] negotiable absent an emergency or other special circumstances . . . .'" BATF, 45 FLRA at 347 (quoting MEPS, 25 FLRA at 689). In our view, the reference in section 7131(d) to the granting of official time "in any amount" negotiated by the parties in accordance with the specified criteria encompasses the allocation and scheduling of official time. See American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1529-31 (D.C. Cir. 1986).

Turning to the instant case, we find that the award concerns matters pertaining to the amount of official time under section 7131(d). The Agency has not asserted or demonstrated the existence of an emergency or other special circumstances. Consequently, consistent with BATF and MEPS, the award does not impermissibly affect management's rights under section 7106(a)(2)(A) and (B). Cf. National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Washington, D.C., 48 FLRA 1323, 1327-28 (1994) (proposal requiring the assignment of inspectional work to other employees before the assignment of that work to union president was not subject to the carve-out exception of section 7131(d) because it did not concern the amount or scheduling of official time).(4)

We also find that the award is not inconsistent with section 7101 of the Statute. The official time provisions of the parties' agreement, as interpreted by the Arbitrator, further the public interest and contribute to effective Government by enhancing the ability of Union representatives to participate in representational activities that promote the resolution of disputes and effective labor-management relations. See, e.g., Social Security Administration, Inland Empire Area, 46 FLRA 161, 176 (1992). Moreover, as found by the Arbitrator, procedures exist for the Agency to address Union representatives' use of official time.

We conclude, therefore, that this exception provides no basis for finding the award deficient.

B. The Award Draws Its Essence from the Agreement

In order for the Authority to find that an award is deficient on the ground that it fails to draw its essence from an agreement, the party making the allegation must demonstrate 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, 575-76 (1990).

The Agency has failed to demonstrate that the award is deficient under any of the tests set forth above. The Arbitrator recognized that the parties made distinctions in their collective bargaining agreement between Union representatives who physically leave their work area for representational purposes and those who merely receive and make telephone calls for representational purposes. With regard to the portion of the award concerning Union representatives' use of telephones for representational purposes, the Agency has not shown that this part of the award is deficient under the standard set forth above. The provisions in the parties' agreement relating to official time other than telephone use indicate that the parties knew how to craft time limits where desired. For example, the portion of Article 9, Section 5 relating to Union representatives who desire to leave the work area to perform representational duties sets forth specific requirements on their use of official time. In this connection, a Union representative must notify his or her immediate supervisor of the estimated time required and the supervisor must determine, based on workload, whether the representative can be released, and in no event can the release be delayed longer than the time limit set forth in Article 6. In direct contrast, the last sentence of Article 9, Section 5, which refers specifically to telephone use, expressly provides that the release procedure is not intended to preclude representatives' access to or use of telephones for official business as set forth in Article 10, Section 7.

Further, we reject the Agency's construction of the award as granting Union representatives an "unfettered right" to use Agency telephones at their desks for representational purposes. Exceptions at 3. The first sentence of Article 9, Section 5 provides in part that Union representatives should use official time "prudently[.]" In our view, the Arbitrator's award suggests that this requirement applies to all use of official time, including Union representatives' use of telephones for representational purposes, and we expect the parties to act consistent with this understanding. This requirement provides a reasonableness standard for Union representatives' use of telephones for representational purposes. If the Agency believes that Union representatives are not using telephones for representational purposes prudently, as required by the agreement, the Agency may file a grievance or, consistent with the award and section 7131(d) of the Statute, request to negotiate on this matter. Consequently, the Arbitrator's recognition that, under the agreement, Union representatives must use official time prudently demonstrates that the award does not grant Union representatives an unfettered right to use Agency telephones for representational purposes.

For the reasons set forth above, we find that the Arbitrator's interpretation is not irrational, unreasonable, or implausible. Rather, the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the master agreement. See, e.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 365-66 (1990) (National Weather Service).

We also find that the Agency has not established that the Arbitrator's order directing the parties to submit official time requests and responses to each other in writing could not, in any rational way, be derived from the parties' agreement or that the Arbitrator's determination is irrational, unfounded, or implausible. Rather, the Agency's exception constitutes nothing more than disagreement with the Arbitrator's application of the parties' agreement to require the parties to submit official time requests and responses in writing.

We further reject the Agency's reliance on previous arbitration awards to support its contention that the award fails to draw its essence from the master agreement. The Authority does not find arbitration awards deficient on the basis that they conflict with previous arbitration awards. See International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 50 FLRA 533, 536-37 (1995); U.S. Department of Veterans Affairs, Medical Center, Northport, New York and National Federation of Federal Employees, Local 387, 49 FLRA 630, 637 (1994). Accordingly, we deny this exception.

C. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164-65 (1996) (DCAA, Central Region); U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995); National Weather Service, 36 FLRA at 362. However, when parties do not stipulate the issue, an arbitrator does not exceed his or her authority when the arbitrator formulates and decides the issue. DCAA, Central Region, 51 FLRA at 1164-65; National Weather Service, 36 FLRA at 362-63.

In the instant case, the parties did not agree on the issues to be arbitrated. The Arbitrator noted that the parties expressed different reasons for the problems arising from Union representatives' use of official time to perform representational functions under the parties' agreement. To address the problems described by the parties, the Arbitrator formulated the issues as concerning the amount of official time that could be used by Union representatives and when it could be used, whether management attempted to unilaterally control when official time will be authorized for Union representatives to perform representational functions, and whether management applied the release and delay provisions of the master agreement in an impermissible manner.

In the absence of a stipulated issue, the Arbitrator was free to formulate the issues. The Arbitrator found that the Agency applied the release and delay provisions of the parties' agreement in a manner that impermissibly restricted the use of official time by Union representatives for representational functions. To remedy the Agency's improper conduct, and to address the problems arising from the Agency's application of these provisions, the Arbitrator directed the parties to submit requests for official time and responses to such requests in writing. We find that the Arbitrator's remedy is responsive to the issues that he formulated and, as such, does not demonstrate that the award is deficient. See, for example, DCAA, Central Region, 51 FLRA at 1164-65; National Weather Service, 36 FLRA at 363; U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990). Consequently, we deny the Agency's exception.

V. Decision

The Agency's exceptions are denied.

APPENDIX

ARTICLE 6

RESPONSIBILITIES AND OBLIGATIONS OF THAT THE PARTIES

. . . .

Section 3. Both parties recognize the necessity for time limits with respect to certain of their responsibilities and obligations. However, such time limits may be extended by mutual agreement of the Parties. If an employee or representative cannot be released for a valid work-related reason at the time of a request for representational assistance, the event to which the assistance applies will be postponed until the release(s) can occur. The delay will be no more than two consecutive workdays.

. . . .

ARTICLE 9

UNION RIGHTS AND REPRESENTATION

. . . .

Section 5. It is agreed by the Parties that Union Representatives should use official time prudently and that supervisors have the obligation to consider requests for and grant official time in accordance with this Master Agreement. A Local Union Representative, when desiring to leave his work area for the purpose of performing representational duties during working hours, shall first notify his immediate supervisor and will inform the immediate supervisor of the estimated time required. The immediate supervisor will determine, based upon the workload, whether the Union Representative can be released. In no instance will release be delayed longer than that specified in Article Six (6) Section Three (3). The Union Representative will then determine the availability of the employee to be represented by contacting that employee's immediate supervisor and, workload permitting, arrange for the employee's release. Such representative will report to his supervisor upon return to his shop or work area after completion of representational duties. Local Management may maintain a record of official time used for representational duties. This release procedure is not intended to preclude representatives access to or use of telephones for official business, as outlined in Article Ten (10) Section [Seven (7)].

Section 6. There shall be no restraint, coercion or discrimination against any Union official because of the performance of duties in consonance with this Master Agreement and the Act, or against any employee for filing a complaint or acting as a witness under this Master Agreement, the Act, or applicable regulation. Management agrees to direct employees to the Union when it is determined that a complaint/grievance exists, and the employee requests union representation.

ARTICLE 10

FACILITIES AND SERVICES

. . . .

Section 7. At locations where the Union has an office provided by [the Agency] and a telephone is not currently installed, the Union may request a telephone for its use in conducting necessary representational obligations. In locations where no office space is provided, the Union will have access to telephones utilized by the Employer for the stated purpose.




Separate Opinion of Chair Segal, Concurring in Part and Dissenting in Part:

I concur in my colleagues' conclusions that (1) the Arbitrator did not exceed his authority, and (2) the award draws its essence from the agreement insofar as it requires the parties to submit official time requests and responses to each other in writing. However, for the following reasons, I do not join in the remainder of the majority opinion, concerning the future use of telephones by Union representatives.(*)

First, I would find that this portion of the award fails to draw its essence from the parties' agreement. In this regard, the record discloses that the parties negotiated a detailed provision to govern Union representatives' requests for official time, and the Agency's responses to those requests. That provision, in Article 9 of the agreement, specifies, among other things, that: official time must be used by Union representatives prudently; requests for official time must include an estimate of the amount of time required; and Agency determinations of "whether the Union Representative can be released[]" are to be based on workload considerations. Attachment to Union's Opposition at Article 9, Section 5. The fact that the parties did not intend Agency consideration of requests for official time to be a meaningless exercise is evident from their express agreement on the maximum period of time that a representative's release could be delayed. See id. at Article 6, Section 3.

Even a cursory reading of Article 9 demonstrates that the parties carefully considered, and balanced, their respective interests in performing representational responsibilities and completing the Agency's work. Nevertheless, the Arbitrator concluded both that there is "no limitation on the time" Union representatives can use telephones for representational work, and that a Union representative "has the right to use [a] telephone for representational work without first notifying the supervisor or receiving permission to do so." Award at 10, 11. I note that construing the parties' agreement in this way goes beyond what the Union sought in arbitration; according to the Arbitrator, the Union requested "the right to answer telephones without the necessity of securing advance approval therefor[.]" Award at 5 (emphasis added).

The Arbitrator based his interpretation of the parties' agreement on the final statement in Article 9, Section 5 that the "release procedure is not intended to preclude representatives' access to or use of telephones for official business[.]" My colleagues also find that statement compelling. However, I believe the Arbitrator and the majority read too much into these words. An agreement that release procedures are not intended to preclude a union representative's access to telephones is quite different from one authorizing that same representative unlimited access to such telephones with no prior approval. I find it implausible to construe that, having agreed on clear and specific procedures for requesting use of official time and a "prudent" limitation on the quantity of such time, the parties also agreed that no limitations or procedures would apply when a telephone is used to conduct representational activity. In short, the Arbitrator's construction shows insufficient fidelity to what the parties "bargained for." Accordingly, I would find that this portion of the award is deficient as failing to draw its essence from the parties' agreement.

I note that the majority indicates its expectation that Union representatives will use telephones for representational purposes "prudently," consistent with the terms of the parties' agreement governing official time. I agree that limiting the use of official time to what is prudent would be consistent with the agreement. However, I do not read the award to require this; instead, as pointed out above, the Arbitrator expressly concluded that there is "no limitation" on telephones used for official time. Award at 10 (emphasis added). Given the Arbitrator's express conclusion, I am unable to agree with the majority that the award "suggests" to the contrary. In any event, in my view, such a suggestion would not cure the deficiency. I also am not persuaded that the deficiency in the award is cured by either the Authority's expectations or the fact that the Agency can act -- by filing grievances and/or requesting negotiations -- in ways not directed by the award.

Second, as I would find the award deficient because it fails to draw its essence from the parties' agreement, I address only briefly the Agency's alternative argument that the award is inconsistent with its rights to direct employees and assign work. Relying on Authority case law, the majority states that section 7131(d) constitutes ("carves out") an exception to management's rights in section 7106(a)(2) as it relates to amount, allocation, and scheduling of official time, except in situations involving emergencies or special circumstances. However, on its face, section 7131(d) speaks only to agreements about the "amount" of official time. As interpreted by the Arbitrator, the parties' agreement is not limited in this way. In addition, the Supreme Court has held that management's rights under section 7106(a)(2) may be constrained only by "applicable laws" and that "the term 'applicable laws' refers to laws outside the [Statute]." Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922, 930 (1990) (emphasis in original). As section 7131(d) undoubtedly is within, not "outside," the Statute, and as it unambiguously applies only to "amounts" of official time, I have doubts that the majority's application of the carve-out theory in this case can withstand close scrutiny. These doubts are not removed by the courts' opinions in U.S Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993) (INS), and American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986) (AFGE), cited by the majority. Indeed, the decision in INS recognizes that section 7106 may result in limitations on official time negotiated under section 7131(d). INS, 4 F.3d at 272 n.7 ("Some 'official time' proposals could excessively interfere with the management right to 'assign work' . . . ."). Similarly, as relevant here, the decision in AFGE addressed a proposal that certain union representatives be authorized 100 percent official time. 798 F.2d at 1526. As the proposal at issue in AFGE concerned an "amount" of official time, the court's decision regarding it does not support, in my view, a broad application of the "carve-out" theory here.




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


Authority's Footnotes Follow:

1. Chair Segal's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision.

2. Relevant agreement provisions are set forth in the Appendix to this decision.

3. Section 7131(d) of the Statute states, in relevant part, that except as provided in the preceding subsections of section 7131, employees 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."

4. Because we find that the Arbitrator was not enforcing a contractual arrangement for employees adversely affected by the exercise of management's rights, we find that we need not apply Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990). See U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen and Schedulers Union, Local 2, 49 FLRA 1363, 1367-68 (1994).


Chair Segal Opinion Footnote Follows:

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