United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Big Spring, Texas (Agency) and American Federation of Government Employees, Local 3809 (Union)

[ v62 p49 ]

62 FLRA No. 13

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
BIG SPRING, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3809
(Union)

0-AR-4134

_____

DECISION

March 23, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Rhonda R. Rivera filed by the Agency under § 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 sustained a grievance alleging that the Agency violated the parties' agreement by denying the grievants' requests for a certain number of official time hours to prepare for a hearing. As a remedy, the Arbitrator ordered the Agency to restore to the grievants any annual leave used in lieu of official time and pay them at a straight time rate for any additional hours used.

      For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      Grievant N, a Union official, was asked to represent grievant M at a hearing before the Equal Employment Opportunity Commission (EEOC). To prepare for the hearing, grievant N requested official time for August 29, 2005 in the amount of 10 hours for herself and 8 hours for grievant M. [n1]  The Agency questioned whether the number of hours requested was reasonable and approved only 4 hours of official time for each grievant. Subsequently, grievants N and M requested, and were granted, 6 and 4 hours of annual leave, respectively.

      Grievant N spent a total of 21 hours from August 22 to August 29, and grievant M spent a total of 12 hours on August 29, preparing for the EEOC hearing. The Union filed a grievance alleging that the Agency violated the parties' agreement by not granting the grievants an adequate amount of official time to prepare for the hearing. The unresolved grievance was submitted to arbitration, where the Arbitrator framed the "core issue" as whether the Agency's decision "to limit the [o]fficial [t]ime to four hours for each of the [g]rievants was `reasonable' under the circumstances." Award at 9. In this regard, the Arbitrator explained that, in order to be reasonable, "the decision [could] not be `arbitrary, capricious, or unreasonable or made in bad faith.'" Id. at 8 (citing Agency's Post Hearing Brief at 4).

      The Arbitrator found that the Agency denied the Union's request for official time based exclusively on the advice of its attorney, who was the Union's opposing counsel in the EEOC hearing. This, the Arbitrator found, raised "the appearance of impropriety and bias." Id. at 9. Moreover, the Arbitrator found that the Agency provided no other evidence to support its decision to grant only 4 hours of official time to each grievant. The Arbitrator rejected the Agency's claim that the grievants' official time requests were untimely. See id. at 8. The Arbitrator found that, although grievant N asked for official time for August 29th, "she never stated how she would allocate her time." Id. at 9.

      Based on the foregoing, the Arbitrator concluded that the Agency's decision to grant each grievant only 4 hours of official time to prepare for the EEOC hearing was arbitrary and capricious. To remedy the violation, the Arbitrator ordered the Agency to pay the grievants straight-time pay for the time they actually expended preparing for the hearing, less the time taken as annual leave, and to restore annual leave that was used.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency does not challenge the Arbitrator's findings on the merits. Instead, the Agency claims that the remedy is contrary to law and fails to draw its essence from the parties' agreement because both [ v62 p50 ] Authority precedent and the parties' agreement require official time requests to be made in advance. See Exceptions at 5-7 (citing United States Dep't of Transp., Fed. Aviation Admin., SW Region, Ft. Worth, Tex., 59 FLRA 530, 532 (2003) (FAA) and Articles 6 and 7 of the parties' agreement).  [n2]  According to the Agency, the grievants requested official time in advance only for August 29 and only in the amount of 10 hours for grievant N and 8 hours for grievant M. Therefore, the Agency claims the remedy covering time used on other days, exceeding the number of requested hours, is deficient.

B.     Union's Opposition

      The Union asserts that the Agency's exceptions should be denied because the Agency did not identify a law with which the award conflicts or claim in arbitration that the grievants did not properly request official time. Alternatively, the Union asserts that the award is neither contrary to law nor fails to draw its essence from the parties' agreement because the Arbitrator correctly found that the Agency wrongly denied the grievants' requests for official time and that the grievants subsequently prepared for the hearing on non-duty time.

IV.      Preliminary Issue

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). The Union's assertion that the Agency did not claim in arbitration that the grievants failed to properly request official time is rejected because the record shows that the Agency alleged in arbitration that "at no time did [the grievants] make a request for official time for August 22, 23, or 25." Agency's PHB at 5. Consequently, we will consider the Agency's exceptions.

V.      Analysis and Conclusions

A.      The Award Is Not Contrary To Law

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under the Statute, parties may negotiate official time in "any amount" that they agree is "reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(d); see United States Small Bus. Admin., Wash., D.C., 42 FLRA 890, 900 (1991). "Once the parties have agreed on the terms and conditions of § 7131(d) official time in their collective bargaining agreement, an issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for an arbitrator, unless the contract provision is unenforceable." United States Dep't of Homeland Sec., United States Customs and Border Prot., United States Border Patrol, El Paso, Tex., 61 FLRA 122, 125 (2005) (Customs).

      Consistent with the foregoing, the parties' agreement contains several contract provisions governing official time. See Exceptions at 5 and Agency's PHB at 2-3. The Arbitrator did not specify which of those contract provisions she was applying. [n3]  However, the Arbitrator found that the parties' agreement precludes denials of official time that are "arbitrary, capricious, or unreasonable or made in bad faith." Award at 8 (citing Agency's PHB at 4). Applying this standard, the Arbitrator concluded that the Agency's denial of the grievants' requests for official time was arbitrary and capricious because it was based exclusively on the advice of its attorney, who was also the Union's opposing counsel.

      The Agency does not argue that the contractual standard for denying official time, which the Arbitrator applied, was unenforceable. Rather, the Agency claims that the remedy conflicts with Authority precedent because the grievants' requests for official time were not made in advance, with respect to the specific days and hours for which the Arbitrator ordered a remedy. Exceptions at 5 (citing FAA, 59 FLRA at 532). Under [ v62 p51 ] Authority precedent, the prerequisites for awarding straight-time compensation to remedy a wrongful denial of official time are: (1) an employee requested official time to perform official time activities during the employee's regularly scheduled duty hours; (2) management wrongfully denied the request; and (3) the employee thereafter performed the official time activities on non-duty time. FAA, 59 FLRA at 532. As Authority precedent does not establish specific requirements for official time requests, there is no legal support for the Agency's claim that, as a matter of law, the grievants' requests were not sufficient to support the Arbitrator's remedy. To the contrary, as previously explained, requirements governing official time requests must be negotiated and included in a collective bargaining agreement to be enforceable. In that situation, the Authority reviews an arbitrator's interpretation and application of such requirements under the essence standard, not as a matter of law. See Customs, 61 FLRA at 125.

      We find that the Arbitrator made all of the necessary findings to support her award of straight time compensation for the Agency's wrongful denial of the grievants' official time requests. Specifically, the Arbitrator found that the grievants requested official time to prepare for the EEOC hearing during their regularly scheduled duty hours; the Agency wrongfully denied the requests; and the grievants subsequently prepared for the hearing on non-duty time. See Award at 6-8. Consequently, we conclude that the award complies with Authority precedent, and we deny the Agency's exception.

B.      The Award Does Not Fail To Draw Its Essence From the Parties' Agreement

      The Authority will find that an award fails to draw its essence from an agreement when the appealing party establishes 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 purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency claims that the award fails to draw its essence from Articles 6 and 7 of the parties' agreement because the grievants did not request in advance the particular days and hours of official time for which the Arbitrator awarded a remedy. However, the Agency points to nothing in the plain wording of those provisions that requires such specificity. Moreover, the Arbitrator did not interpret the parties' agreement as requiring employees to specify the days and hours that they will use requested official time. To the contrary, the Arbitrator specifically found one request sufficient even though the grievant "never stated how she would allocate her time." Award at 9. As such, the Arbitrator's award granting relief for non-duty time used on days and hours that had not been identified in the grievants' requests for official time is consistent with her interpretation of the parties' agreement. Based on the foregoing, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. We therefore deny the Agency's exception.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 62 FLRA No. 13 - Authority's Decision

   All dates are 2005 unless otherwise noted.


Footnote # 2 for 62 FLRA No. 13 - Authority's Decision

   Article 6 provides, in relevant part: "If an employee has a problem or situation which the employee desires to discuss with the Union during working hours, upon request to their supervisor in advance and workload permitting, the employee may report to the Union official as approved." Article 7 provides, in relevant part: "[L]ocal Union representatives desiring to perform and discharge their responsibilities must request the time from their supervisor prior to leaving the work site." Exceptions a