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

[ v55 p805 ]

55 FLRA No. 138

U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916
(Union)

0-AR-2888

_____

DECISION

September 17, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Don J. Harr 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.

      The Arbitrator denied a grievance filed by the Agency that alleged that the Union violated applicable law, rule, regulation, past practice, and the parties' collective bargaining agreement when a Union representative used official time to negotiate a collective bargaining agreement covering employees of a different agency.

      For the reasons stated below, we find that the Agency's exceptions that the award is contrary to section 7131(a) of the Statute and does not draw its essence from the parties' agreement do not establish that the award is deficient. With respect to the Agency's remaining exceptions, we conclude that the record contains insufficient factual findings for us to determine whether the award is contrary to the cited laws. Accordingly, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings on the issues raised by these exceptions, consistent with this decision.

II.     Background

      Under Article 4, Section 4.13 of the parties' collective bargaining agreement, the Union is authorized up to four unit employees to serve as full-time Union representatives. [n1]  The employee in this case has been a full-time Union representative under Article 4 since December 1992.

      During the pay period that began November 26 and ended December 9, 1995, the Union representative "negotiated a term agreement with the Defense Printing Service (Navy)[.]" Award at 4. These negotiations were conducted at the Union's hall from 0800-1600 hours (8:00 a.m.-4:00 p.m.) The Agency learned that the Union representative had negotiated the Navy agreement and had submitted a time and attendance (T&A) record covering the same time period. On the T&A record, the Union representative reported that he performed representational activities for the unit located at the Agency by arriving early, staying late, performing representational activities on the weekend, and splitting up his work day. See Exceptions, Attachment 5 (Time and Attendance Record). The Union representative reported a total of 140.5 hours for time spent negotiating the Navy agreement and performing representational activities at the Agency. Of the total hours reported, the Union representative claimed 72.5 hours as official time for Agency representational activities and an additional 7.5 hours of annual leave.

      Subsequently, pursuant to Article 6 of the parties' agreement, the Agency filed a grievance alleging that the Union representative had improperly used official time to negotiate an agreement not covering the bargaining unit. The Agency requested the Union to reimburse it for wages and benefits, excluding approved annual leave paid to the Union representative during the pay period involved, or it would charge the employee annual leave for the 72.5 hours of official time that the employee had reported. The Union denied the grievance.

      The Arbitrator found that the Union representative provided the bargaining unit of Agency employees eighty hours of representation during the pay period in dispute. The Arbitrator further found that a past practice existed of "full-timers [Union representatives on 100 percent official time] flexing their work hours" to properly represent the bargaining unit and to fulfill their obligations to the Agency. Award at 6. According to the Arbitrator, this practice began in 1986 with the first [ v55 p806 ] Union full-timer and was consistent with the Union's position during negotiations for the parties' collective bargaining agreement as well as with previous arbitration awards. The Arbitrator further determined that the wording "otherwise in a duty status" in Article 4, Section 4.05, applied to employees serving as Union representatives on a part-time basis and not to full-time Union representatives described in Article 4, Section 4.13.

      The Arbitrator found, therefore, based on bargaining history, past practice, and the parties' agreement, that it was unreasonable for the Agency to attempt to "restrict the working hours" of the Union representative to the day shift of 0645 to 1530 (6:45 a.m.-3:30 p.m.). Id. Accordingly, the Arbitrator found that the Agency had not shown that the Union violated law, rule, regulation, past practice, or the parties' agreement when the Union representative negotiated an agreement for the Navy unit. He, therefore, denied the grievance.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator's finding that the Union representative provided the bargaining unit 80 hours of representation is contrary to law based on four grounds.

      First, the Agency states that section 6130(a)(2) of the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act), Pub. L. No. 97-221, 96 Stat 227 (codified at 5 U.S.C. §§ 6101 note, 6106, 6120-6133), prohibits any flexible or compressed work schedule that is not expressly provided for under a collective bargaining agreement. The Agency asserts that the Union has never negotiated for full-time Union representatives to have compressed or flexible work schedules as defined in the Work Schedules Act. The Agency argues, therefore, that the award is inconsistent with section 6130(a)(2) because there is no express agreement that provides for a flexible work schedule.

      Second, the Agency asserts that the Union representative did not account for his time and attendance in accordance with 5 U.S.C. § 6101(a)(3)(B). [n2]  According to the Agency, his time and attendance record shows that he claimed official time (duty time) for representational activities on 13 consecutive days and also requested and received approval for 7.5 hours of annual leave on the same day that he claimed 8 hours of official time for bargaining unit representational activities. The Agency states that the reported time is not consistent with the requirement under 5 U.S.C. § 6101(a)(3)(B) that the basic 40-hour week be scheduled on 5 days, Monday through Friday, with 2 consecutive days off, unless the agency head has first determined that such a schedule would seriously handicap the organization in carrying out its functions or would substantially increase costs.

      Third, the Agency contends that the Arbitrator's finding is inconsistent with 5 U.S.C. § 6101(a)(3)(F), which provides that breaks in working hours of more than 1 hour may not be scheduled in a basic work day. According to the Agency, as the Union representative was not on official time between 8:00 a.m. and 4:00 p.m., he "must have used . . . official time in split shift increments of more than 1 hour[,]" which is contrary to 5 U.S.C. § 6101(a)(3)(F). Exceptions at 12.

      In connection with its claim that the award is contrary to section 6101(a)(3)(B) and (F), the Agency asserts that the Arbitrator improperly found that the Union representative's scheduling was supported by a past practice. The Agency states that "while the award may have properly concluded that the 'flexing' of hours was a past practice," the evidence establishes that it was only a past practice in that there was a specific reason for a full-timer to work early or late on unit business. Id. at 15. The Agency contends that the Union representative ordinarily worked the day shift from 6:45 a.m. to 3:30 p.m. and there is no evidence to show that he performed representational duties during the disputed time or, except for one instance, that he needed to vary his schedule.

      Fourth, the Agency asserts that the Arbitrator's award is contrary to section 7131(a) of the Statute because the Arbitrator did not find that the Union representative was required to be in a duty status when he considered the official time that the Union representative claimed.

      Additionally, the Agency contends that the Arbitrator's finding that the language "otherwise in a duty status," in Article 4, Section 4.05, does not apply to full-time Union representatives does not draw its essence from the parties' agreement. According to the Agency, Article 4, Section 4.05, requires linkage between the use of official time and duty status. [ v55 p807 ]

B.     Union's Opposition

      The Union contends that the evidence supports the Arbitrator's award. According to the Union, as the Agency operates its work site 24 hours a day, 7 days a week, full-time Union representatives must set their hours of duty to fulfill their representational obligations. The Union contends that the Union representative involved here was on his own time when he negotiated the agreement for the Navy, which lasted for "6.5 days." Opposition at 3. The Union contends that "[b]y [arriving at] work early, staying late, working weekends, and splitting up his work day," he was able to perform 80 hours of representation for the Agency [Air Force] bargaining unit. The Union asserts that the Union representative did inform his supervisor that he was going to "alter his work schedule." Id.

      The Union disagrees with the Agency's contention that the award is contrary to 5 U.S.C. § 6130(a)(2). The Union asserts that although the parties' agreement is silent on the issue of hours of work, Article 33 permits local negotiations on matters not covered by the agreement. Citing United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 581-82 (1960), the Union argues that "past practice" is "equally binding as the collective bargaining agreement[.]" Opposition at 7. The Union asserts, therefore, that as the Arbitrator found that a past practice existed of full-timers flexing their work hours, the Agency is in error when it claims there is no negotiated agreement that allows full-timers to flex their work hours. The Union further contends that the flexing of work hours was also the intent of the parties in negotiating Article 4, Section 4.13 in 1986. [n3] 

      The Union next contends that the award is not inconsistent with 5 U.S.C. §§ 6101(a)(3)(B) and (F) because section 6101 does not apply to full-time Union representatives in the same manner as it does to employees on duty and performing Agency work. The Union states that the Agency cannot assign representational duties to full-timers.

      The Union asserts that the Agency's essence contention is simply a disagreement with the Arbitrator's interpretation of the parties' agreement.

IV.     Analysis and Conclusions

A.     The Record Is Insufficient for a Determination as to Whether the Award Is Deficient Under 5 U.S.C. § 6130(a)(2)

      The Authority reviews questions of law raised in a party's exceptions and an arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. Here, the Agency claims that the award is contrary to 5 U.S.C. § 6130(a)(2) of the Work Schedules Act.

      The Agency contends that the award is contrary to section 6130(a)(2) because there is no express agreement that provides for a flexible work schedule. [n4]  Section 6130(a)(2) provides:

Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter [Flexible and Compressed Work Schedules] except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.

Thus, under the Work Schedules Act the benefits of a flexible or compressed work schedule do not apply to employees in a unit represented by an exclusive representative "except to the extent expressly provided under a written agreement between the agency and such [representative]." S. Rep. No. 365, 97th Cong., 2d Sess. 15 (1982), reprinted in 1982 U.S. Code & Cong. & Admin. News at 577. Additionally, where flexible schedules are properly in place, section 6122 of the Act permits employees to vary their starting and quitting times, as long as they are present during designated hours (core hours) and days, and permits employees to work longer than their 8-hour daily work requirement so as to accumulate "credit hours" to be used to reduce the length of the workweek or of another workday. [n5]  See 5 U.S.C. [ v55 p808 ] § 6122(a); Office of Personnel Management Handbook on Alternative Work Schedules (Flexible Work Schedules), at 2-3 (June 3, 1998); Maritime/Metal Trades Council and Panama Canal Commission, 18 FLRA 326, 336 (1985) (Panama).

      In this case, the time and attendance record shows that the Union representative claimed 72.5 hours of Agency official time by arriving at work early, staying late, working weekends, and splitting up his work day. The Arbitrator made no findings concerning whether the Union representative's schedule was permitted under a collective bargaining agreement within the meaning of the Work Schedules Act. We have considered the Arbitrator's finding that the Agency had failed to show that the Union "violated law, rule, regulation, past practice, or the 1989 Master Labor Agreement" when the Union representative claimed the reported hours of official time. Award at 6. However, this finding is not sufficient for us to determine whether the Union representative's schedule was permitted under a collective bargaining agreement as required under the Work Schedules Act. Although the Arbitrator found that the Agency had failed to show that the Union violated law, the Arbitrator did not address or consider the Work Schedules Act in the award.

      Therefore, we are unable to assess, based on the record, whether the award is deficient under the Work Schedules Act as the Agency claims or whether the Union representative is entitled to the official time claimed as found by the Arbitrator. In such circumstances, and consistent with Authority precedent, we remand the award to the parties. See Army Research, 53 FLRA at 1710-11. On remand, absent settlement, the parties should submit this case to the Arbitrator to make the necessary factual findings regarding whether the Union representative's schedule was permitted under a collective bargaining agreement within the meaning of the Work Schedules Act, and if not, whether the Union representative is entitled to the official time on some other basis. Based on these factual findings, the Arbitrator should make the necessary conclusions as to whether the Union representative is entitled to the reported official time under the Work Schedules Act.

B.     The Record Is Insufficient for a Determination as to Whether the Award Is Deficient Under 5 U.S.C. § 6101(a)(3)(B) and (F)

      The Agency's contends that the award is contrary to 5 U.S.C. §§ 6101(a)(3)(B) and (F).

As relevant here, section 6101(a)(3) provides:
[e]xcept when the head of an Executive agency . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that---
. . . .
(B)     the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;
. . . .
(F)     breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

      An employee is defined in section 6101(a)(1), in pertinent part, as one:

whose pay is fixed under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, but does not include an employee or individual excluded from the definition of employee in section 5541(2) of this title, except as specifically provided under this paragraph.

      There is nothing in the record to show that the Union representative, a WG-10 welder, is excluded from the definition of employee in section 6101. Therefore, we find that section 6101 applies to the Union representative.

      As previously stated, where flexible and compressed work schedules have not been established pursuant to the Work Schedules Act, employees' workweeks are established pursuant to 5 U.S.C. § 6101. Under 5 U.S.C. § 6101, Federal agencies are required to establish a basic workweek of five (5) 8-hour days, Monday through Friday. 5 U.S.C. § 6101(a)(2) and (3) and 5 C.F.R. § 610.121. See also Panama 18 FLRA at 335. In interpreting section 6101 and 5 C.F.R. Part 610, the Comptroller General has stated that the "establishment of work schedules to best accomplish the agency's work is generally a matter within the discretion of the [ v55 p809 ] agency concerned, within the parameters established by law, and regulations and guidance provided by the Office of Personnel Management (OPM)." Comp. Gen. No. B-258316 (June 2, 1995) (unpublished). 5 C.F.R. Part 610 was promulgated by OPM, pursuant to specific statutory authority. National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843, 849 (1996) (Department of Agriculture), petition for review denied, National Association of Agriculture Employees v. FLRA, 106 F.3d 442 (D.C. Cir. 1996).

      In this case, the Arbitrator found that a past practice existed of full-timers flexing their work hours. Although the Arbitrator determined that the Agency had failed to show that the Union violated law with respect to the Union representative's schedule, the Arbitrator did not address or consider 5 U.S.C. § 6101(a)(3) in the award. We find, therefore, that the record does not contain sufficient findings of fact for us to determine whether the Arbitrator's determination that the Agency failed to show that the Union violated law is a finding that the Agency had exercised its discretion and decided that full time Union representatives could change their schedules under a statutory exception to the scheduling requirements of 5 U.S.C. § 6101(a)(3).

      We are unable to assess, therefore, based on the record, whether the award is deficient under 5 U.S.C. § 6101 as the Agency claims or whether the Union representative is entitled to the official time reported as found by the Arbitrator. Thus, consistent with Authority precedent, we remand the award to the parties. See Army Research, 53 FLRA at 1710-11. On remand, absent settlement, the parties should submit this case to the Arbitrator, and if the Arbitrator finds that the Union representative's schedule was not permitted under a collective bargaining agreement within the meaning of the Work Schedules Act, he should be asked to make the necessary factual findings regarding whether the Union representative's schedule was permitted under the exceptions to the scheduling requirements under 5 U.S.C. § 6101(a)(3). Based on these factual findings, the Arbitrator should make the necessary conclusion as to whether the Union representative is entitled to the reported official time because of exceptions to the scheduling requirements permitted under 5 U.S.C. § 6101(a)(3).

C.     The Award is Not Contrary to Section 7131(a) of the Statute

      The Agency's assertion that the award is contrary to section 7131(a), because the Arbitrator did not find that the Union representative was required to be in a duty status during the time he claimed official time, provides no basis for finding the award deficient.

      Section 7131(a) of the Statute provides that "[a]ny employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes . . . during the time the employee otherwise would be in a duty status." By its wording, section 7131(a) applies only to official time used by employees representing a union in the negotiation of a collective bargaining agreement. The Arbitrator's award was not based on an application of section 7131(a). Rather, the Arbitrator's award was based on his interpretation of the language "otherwise in a duty status" in Article 4, Section 4.05, which concerns the use of official time for representational activities other than negotiations under the parties' negotiated agreement. The Arbitrator found that this provision applied to part-time and not full-time Union representatives. The award concerns, therefore, the Arbitrator's interpretation of the parties' agreement pertaining to matters not covered by section 7131(a). Consequently, as section 7131(a) concerns official time in the negotiation of a collective bargaining agreement and as the parties' agreement concerns official time for other representational activities, the award is not inconsistent with section 7131(a).

D.     The Award Does Not Fail to Draw Its Essence from the Parties' Collective Bargaining Agreement

      The Agency's contention that the Arbitrator's interpretation of the language "otherwise in a duty status" in Article 4, Section 4.05 does not draw its essence from the parties' agreement does not demonstrate that the award is deficient. The Arbitrator found that Article 4, Section 4.05 did not apply to full-time Union representatives. The Arbitrator's finding was based on his interpretation of the parties' agreement and his evaluation of the evidence, including the bargaining history of the agreement and previous arbitration awards. It is well-established that the question of interpretation of the parties' agreement is a question solely for the arbitrator, as it is the arbitrator's construction of the agreement for which the parties have bargained. U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 399 (1997) (citing U.S. Department of Health and Human Services, Social [ v55 p810 ] Security, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1188 (1990)).

      Nothing in the wording of the parties' agreement or the Agency's argument demonstrates that the Arbitrator's conclusion is implausible, irrational, or unconnected to the wording and purpose of the agreement. U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990). Accordingly, the Agency's exception that the award fails to draw its essence from the parties' agreement does not establish that the award is deficient.

V.     Decision

      The Agency's exceptions that the award is contrary to section 7131(a) of the Statute and does not draw its essence from the parties' collective bargaining agreement are denied. With respect to the issues of whether the Union representative's schedule met the requirements of section 6130(a)(2) of Work Schedules Act, and if not, whether the schedule was permitted under 5 U.S.C. § 6101(a)(3), the case is remanded to the parties for resubmission to the Arbitrator, absent settlement, for further action consistent with this decision.


APPENDIX

Article 4 provides, in relevant part, as follows:

SECTION 4.05: OFFICIAL TIME - GENERAL
In order to develop and maintain effective labor-management relations, the Employer agrees to allow official time as provided in Section 4.06 and Section 4.07 below to employees who are officials/stewards of the Union who have been designated in writing and who are otherwise in a duty status to accomplish the specified functions as set forth herein. Only one such Union steward/official will be permitted to attend authorized functions on official time unless an exception is granted on a case-by-case basis by the Employer, or unless more than one representative is authorized by specific provisions of this Agreement.
. . . .
SECTION 4.13: FULL-TIME LOCAL REPRESENTATIVES
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.

5 U.S.C. § 6101(a)(3), in pertinent part, provides:

(3)     Except when the head of an Executive agency . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that-
. . . .
(B)     the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;
. . . .
(F)     breaks in working hours of more than 1 hour may not be scheduled in a basic workday.





Footnote # 1 for 55 FLRA No. 138

   The pertinent provisions of the parties' agreement are set forth in the Appendix to this decision.


Footnote # 2 for 55 FLRA No. 138

   The text of 5 U.S.C. §§ 6130(a)(3)(B) and (F) is set forth in the Appendix to this decision.


Footnote # 3 for 55 FLRA No. 138

   In support, the Union references a 1986 letter from the Agency to the Union concerning the administration of full-time Union representatives that states that "[f]ull-timers are assigned to the day shift, but they are considered under a flexitime status and may set their own hours of duty." Opposition, Attachment 12.


Footnote # 4 for 55 FLRA No. 138

   Section 6122 of the Work Schedules Act au