Overseas Education Association (Union) and Office of Dependents Schools, Department of Defense (Activity)
[ v04 p98 ]
04:0098(17)AR
The decision of the Authority follows:
4 FLRA No. 17
OVERSEAS EDUCATION ASSOCIATION
Union
and
OFFICE OF DEPENDENTS SCHOOLS,
DEPARTMENT OF DEFENSE
Activity
Case No. 0-AR-34
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
REVIEW OF THE AWARD OF ARBITRATOR NICHOLAS H. ZUMAS UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)).
ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, THE GRIEVANT IN
THIS MATTER IS THE UNION'S PRESIDENT WHO IS A TEACHER STATIONED IN
AUGSBURG, GERMANY. THE PARTIES HEREIN HAVE A COLLECTIVE BARGAINING
AGREEMENT WITH A PROVISION CONCERNING USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES FOR THE PURPOSE OF CONDUCTING LABOR-MANAGEMENT BUSINESS.
/1/ DURING THE FALL OF THE SCHOOL YEAR 1978-79, THE UNION PRESIDENT
TOOK SEVERAL LEAVE WITHOUT PAY (LWOP) DAYS AND WAS ALLOWED ON SOME DAYS
TO USE ONE-HALF DAY LWOP AND ONE-HALF DAY OF THE "RELEASE TIME" PROVIDED
FOR IN ARTICLE 8, SECTION 2 OF THE PARTIES' AGREEMENT FOR THE PURPOSE OF
CONDUCTING LABOR-MANAGEMENT BUSINESS. AT THE REQUEST OF THE UNION'S
BOARD OF 'DIRECTORS, THE UNION PRESIDENT DECIDED TO ASSUME FULL-TIME
STATUS COMMENCING JANUARY 1979. IN DECEMBER 1978, HE PRESENTED TO HIS
PRINCIPAL A SCHEDULE IN WHICH HE WOULD TAKE HALF-DAY LWOP AND HALF-DAY
"RELEASE TIME" FOR THE BALANCE OF THE SCHOOL YEAR. THE SCHEDULE WAS
DISAPPROVED BY THE ACTIVITY. THEREAFTER, THE PRESIDENT SUBMITTED
ANOTHER SCHEDULE INTERSPERSING WHOLE DAYS OF LWOP WITH WHOLE "RELEASE
TIME" DAYS. THE SECOND SCHEDULE WAS ALSO DISAPPROVED BY THE ACTIVITY
WHICH ASSERTED THAT ARTICLE 8 OF THE PARTIES' AGREEMENT REQUIRED THE
UNION PRESIDENT TO TAKE THE FULL 90 "RELEASE TIME" DAYS BEFORE BEING
ALLOWED TO TAKE ANY LWOP.
THE UNION GRIEVANCE, CONCERNING THE AGENCY'S INTERPRETATION AND
APPLICATION OF ARTICLE 8, SECTIONS 2 AND 3 (NOTE 1, SUPRA) OF THEIR
COLLECTIVE BARGAINING AGREEMENT, WAS ULTIMATELY SUBMITTED TO
ARBITRATION.
INSOFAR AS IS RELEVANT HEREIN, THE ARBITRATOR STATED THE ISSUE BEFORE
HIM TO BE:
DO SECTIONS 2 AND 3 OF ARTICLE 8 OF THE AGREEMENT REQUIRE THAT THE
ASSOCIATION'S PRESIDENT
EXERCISE HIS OPTION TO TAKE LEAVE WITHOUT PAY ONLY AFTER HE HAS USED
HIS FULL 90 DAYS OF
RELEASE TIME?
AS TO THIS ISSUE, THE ARBITRATOR FOUND THE ACTIVITY'S INTERPRETATION
OF THE AGREEMENT TO BE ERRONEOUS, AND SUSTAINED THE UNION'S GRIEVANCE,
STATING:
THERE IS NO REQUIREMENT UNDER SECTION 2 THAT SUCH RELEASE TIME DAYS
BE USED DURING ANY
PERIOD OF THE SCHOOL YEAR . . . THERE IS NOTHING IN THE LANGUAGE OF
SECTION 3 TO SUGGEST THAT
THE 90 DAYS ALLOWED IN FULL PAY STATUS BE EXHAUSTED BEFORE THE
ASSOCIATION PRESIDENT IS
ENTITLED TO TAKE LEAVE WITHOUT PAY.
THE ARBITRATOR'S AWARD WAS AS FOLLOWS:
1-- THAT FUTURE ARRANGEMENTS WITH RESPECT TO RELEASE TIME DAYS AND
LEAVE WITHOUT PAY AS
PROVIDED IN SECTIONS 2 AND 3 OF ARTICLE 8 SHALL COMPLY WITH THE
ARBITRATOR'S FINDINGS.
2-- THAT THE DISPUTED DAYS AS SET FORTH IN APPENDIX 1 OF THE
ASSOCIATION'S BRIEG /2/ BE
AND HEREBY ARE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND
WITHOUT CHARGE TO
LEAVE" AND ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF RELEASE
TIME IN FULL PAY STATUS.
3-- THAT THE ASSOCIATION PRESIDENT BE AND HEREBY IS DECLARED A
PARTICIPANT/WITNESS, THAT
APRIL 6, 9, 10, 11 AND 12, 1979 ARE TO BE DUTY DAYS, AND MANAGEMENT
SHALL PROVIDE HIM WITH
TRANSPORTATION EXPENSE BETWEEN AUGSBURG, GERMANY AND WASHINGTON, D.C.
AND RETURN, PURSUANT TO
ARTICLE 13, SECTION 10 OF THE AGREEMENT /3/ BETWEEN THE PARTIES.
4-- THAT ASSOCIATION'S REQUEST FOR ATTORNEY'S FEES BE AND THE SAME IS
HEREBY DENIED. THERE
IS NO EVIDENCE IN THIS RECORD TO SHOW THAT THE ACTION TAKEN BY
MANAGEMENT HAS "RESULTED IN THE
WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR
DIFFERENTIALS" OF THE
ASSOCIATION PRESIDENT, AS REQUIRED BY TITLE 5, SECTION 5596(B) OF THE
UNITED STATES CODE, OR
WAS OTHERWISE AUTHORIZED OR WARRANTED.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411
(1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
44741(1979)), REMAIN OPERATIVE WITH RESPECT TO THIS CASE. THE UNION
FILED AN OPPOSITION WHICH THE AUTHORITY DETERMINED WAS UNTIMELY FILED
UNDER THE APPLICABLE RULES OF PROCEDURE AND WHICH THEREFORE WAS NOT
CONSIDERED BY THE AUTHORITY IN DETERMINING WHETHER TO ACCEPT THE
AGENCY'S PETITION FOR REVIEW AND WHETHER TO GRANT THE ACCOMPANYING
REQUEST FOR A STAY.
PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
AGENCY'S EXCEPTIONS WHICH ALLEGE THAT THE AWARD FAILS TO DRAW ITS
ESSENCE FROM THE PARTIES' NEGOTIATED AGREEMENT, THAT THE AWARD EXCEEDS
THE ARBITRATOR'S AUTHORITY, AND THAT THE AWARD VIOLATES LAW AND
REGULATION BY BEING PUNITIVE IN NATURE. PURSUANT TO SECTION 2411.47(F)
OF THE AMENDED RULES, THE AUTHORITY GRANTED THE AGENCY'S REQUEST FOR A
STAY. THE AGENCY FILED A POST-ACCEPTANCE BRIEF PURSUANT TO SECTION
2411.36 OF THE AMENDED RULES.
THE QUESTION BEFORE THE AUTHORITY IS WHETHER THE ARBITRATOR'S AWARD
IS DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR
ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT RELATIONS CASES.
THE AGENCY'S EXCEPTIONS RELATE TO PARTS 2 AND 3 OF THE ARBITRATOR'S
AWARD. PART 2 OF THE ARBITRATOR'S AWARD ORDERS "THAT THE DISPUTED DAYS
. . . ARE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND WITHOUT
CHARGE TO LEAVE" AND ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF
RELEASE TIME IN FULL PAY STATUS." IN ITS FIRST EXCEPTION TO THIS PART OF
THE ARBITRATOR'S AWARD, THE AGENCY ALLEGES THAT PART 2 OF THE AWARD
FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT. REGARDING THIS
EXCEPTION, THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
7122(A)(2) OF THE STATUTE WHERE THE AWARD DOES NOT DRAW ITS ESSENCE FROM
THE COLLECTIVE BARGAINING AGREEMENT. UNITED STATES ARMY MISSILE
MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60 (1980); RED
RIVER ARMY DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R14-52, 3 FLRA NO. 32 (1980). THE AUTHORITY HAS HELD THAT TO FIND AN
AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE ON THE GROUND
THAT AN AWARD FAILS TO DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING
AGREEMENT, CONSISTENT WITH THE STANDARD APPLIED BY FEDERAL COURTS IN THE
PRIVATE SECTOR, IT MUST BE DEMONSTRATED THAT THE ARBITRATOR'S AWARD
CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE AGREEMENT; OR IS SO
UNFOUNDED IN REASON AND FACT, SO UNCONNECTED WITH THE WORKING AND
PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN
INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR; OR THAT IT EVIDENCES A
MANIFEST DISREGARD OF THE AGREEMENT; OR THAT, ON ITS FACE, THE AWARD
DOES NOT REPRESENT A PLAUSIBLE INTERPRETATION OF THE CONTRACT. RED
RIVER ARMY DEPOT, SUPRA, CITING U.S. ARMY MISSILE MATERIEL READINESS
COMMAND, SUPRA.
APPLYING THESE STANDARDS TO PART 2 OF THE ARBITRATOR'S AWARD AT ISSUE
HEREIN, THE RECORD BEFORE THE AUTHORITY, INCLUDING SPECIFICALLY THE
ISSUE AS ARTICULATED BY THE ARBITRATOR AND THE PARTIES' ENTIRE
AGREEMENT, DEMONSTRATES THAT PART 2 OF THE AWARD FAILS TO DRAW ITS
ESSENCE FROM THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. AS STATED
PREVIOUSLY, THE ARBITRATOR FRAMED THE ISSUE INVOLVED BEFORE HIM, INSOFAR
AS IS RELEVANT HEREIN, TO BE:
2-- DO SECTIONS 2 AND 3 OF ARTICLE 8 OF THE AGREEMENT REQUIRE THAT
THE ASSOCIATION'S
PRESIDENT EXERCISE HIS OPTION TO TAKE LEAVE WITHOUT PAY ONLY AFTER HE
HAS USED HIS FULL 90
DAYS OF RELEASE TIME?
IN THIS REGARD, ARTICLE 8 OF THE PARTIES' AGREEMENT (NOTE 1, SUPRA)
PROVIDES THAT THE UNION PRESIDENT SHALL BE ALLOWED 90 DAYS "RELEASE
TIME" FOR CONDUCTING LABOR-MANAGEMENT BUSINESS PER SCHOOL YEAR, AND IN
ADDITION HE OR SHE SHALL BE ALLOWED THE OPTION OF TAKING LWOP FOR THE
BALANCE OF THE SCHOOL YEAR. THUS, ARTICLE 8 OF THE AGREEMENT PROVIDES
ONLY TWO OPTIONS AVAILABLE TO THE UNION PRESIDENT FOR CONDUCTING LABOR
MANAGEMENT BUSINESS: "RELEASE TIME" OR LWOP. FURTHERMORE, THE
ARBITRATOR CLEARLY FRAMED THE ISSUE BEFORE HIM AS WHETHER THE CONTRACT
REQUIRED EXHAUSTION OF THE "RELEASE TIME" BEFORE LWOP COULD BE TAKEN.
HOWEVER, AFTER SUSTAINING THE UNION'S INTERPRETATION OF ARTICLE 8 OF THE
PARTIES' AGREEMENT, THAT IS, THAT LWOP COULD BE USED BEFORE THE 90 DAYS
OF "RELEASE TIME" IS EXHAUSTED, THE ARBITRATOR THEN WENT ON TO FASHION A
REMEDY FOR WHICH THERE APPEARS TO BE NO RATIONAL BASIS IN THE AGREEMENT.
SPECIFICALLY, THE AGREEMENT DOES NOT PROVIDE, IN ARTICLE 8 OR
ELSEWHERE, ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, FOR ANY
DAYS WHICH ARE "EXCUSED FROM DUTY WITHOUT LOSS OF PAY AND WITHOUT CHARGE
TO LEAVE" AND (WHICH) ARE NOT TO BE COUNTED AS ANY OF THE 90 DAYS OF
RELEASE TIME IN FULL PAY STATUS" AS ORDERED IN PART 2 OF THE AWARD.
THUS, IT APPEARS THAT THE ARBITRATOR, BY AWARDING AS A REMEDY PAID DAYS
EXCUSED FROM DUTY WHICH ARE NOT "RELEASE TIME", DISREGARDED THE TERMS OF
THE AGREEMENT AND FASHIONED A THIRD TYPE OF PAY STATUS FOR THE PURPOSE
OF CONDUCTING LABOR-MANAGEMENT BUSINESS FOR WHICH THERE IS NO RATIONAL
BASIS IN THE AGREEMENT. THUS, THE AWARD EVIDENCES A MANIFEST DISREGARD
OF THE AGREEMENT WHICH EXPRESSLY PROVIDES ONLY TWO OPTIONS AS TO PAY
STATUS FOR THE CONDUCT OF LABOR-MANAGEMENT BUSINESS BY THE UNION
PRESIDENT: LEAVE WITHOUT PAY OR "RELEASE TIME". THEREFORE, THE AWARD
MUST BE MODIFIED BY STRIKING PART 2, PURSUANT TO SECTION 7122(A) OF THE
STATUTE AND SECTION 2411.37 OF THE AUTHORITY'S AMENDED RULES OF
PROCEDURE.
THE AGENCY FURTHER TAKES EXCEPTION TO PART 2 OF THE ARBITRATOR'S
AWARD ON THE GROUNDS THAT IT EXCEEDS THE ARBITRATOR'S AUTHORITY AND
VIOLATES LAW AND REGULATION BY BEING PUNITIVE IN NATURE. IN VIEW OF OUR
DISPOSITION OF PART 2 OF THE AWARD ON THE BASIS OF THE AGENCY'S FIRST
EXCEPTION THERETO, IT IS UNNECESSARY TO ADDRESS THESE ADDITIONAL
EXCEPTIONS CONCERNING PART 2 OF THE AWARD.
IN ADDITION, THE AGENCY TAKES EXCEPTION TO PART 3 OF THE ARBITRATOR'S
AWARD INSOFAR AS IT ORDERS THAT THE UNION PRESIDENT BE "DECLARED A
PARTICIPANT/WITNESS" AND THAT APRIL 6, 9, 10, 11 AND 12, 1979 BE
CONSIDERED DUTY DAYS. IN ITS FIRST EXCEPTION TO PART 3 OF THE AWARD,
THE AGENCY CONTENDS THAT IT FAILS TO DRAW ITS ESSENCE FROM THE
AGREEMENT. IN SUPPORT OF THIS EXCEPTION, THE AGENCY CONTENDS THAT
ARTICLE 13, SECTION 10E (NOTE 3, SUPRA) OF THE PARTIES' AGREEMENT
PROVIDES THAT WITNESSES AND PARTICIPANTS IN AN ARBITRATION WILL BE IN A
DUTY STATUS BUT THAT NO PROVISION FOR PREPARATION TIME FOR ARBITRATION
IS FOUND IN ARTICLE 13 OR ELSEWHERE IN THE AGREEMENT. THE AGENCY
CONTENDS THAT THE HEARING IN QUESTION WERE NOT EVEN SPENT IN TRAVEL.
THUS THE AGENCY CONCLUDES THAT THE ARBITRATOR'S AWARD OF OFFICIAL TIME
FOR THESE DAYS LACKS A BASIS IN THE AGREEMENT.
THE AGENCY'S FIRST EXCEPTION TO PART 3 OF THE AWARD STATES A GROUND
UPON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
7122(A)(2) OF THE STATUTE AS PREVIOUSLY DISCUSSED IN REFERENCE TO PART 2
OF THE AWARD. HOWEVER, IT DOES NOT APPEAR FROM THE RECORD BEFORE THE
THE AUTHORITY THAT PART 3 OF THE AWARD FAILS TO DRAW ITS ESSENCE FROM
THE COLLECTIVE BARGAINING AGREEMENT. THUS, IT DOES NOT APPEAR THAT PART
3 OF THE ARBITRATOR'S AWARD CANNOT IN ANY RATIONAL WAY BE DERIVED FROM
THE AGREEMENT; OR IS SO UNFOUNDED IN REASON AND FACT, SO UNCONNECTED
WITH THE WORKING AND PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS
TO MANIFEST AN INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR; OR THAT
IT EVIDENCES A MANIFEST DISREGARD OF THE AGREEMENT; OR THAT, ON ITS
FACE, THE AWARD DOES NOT REPRESENT A PLAUSIBLE INTERPRETATION OF THE
CONTRACT. U.S. ARMY MISSILE MATERIAL READINESS COMMAND, SUPRA AND RED
RIVER ARMY DEPOT, SUPRA. WHILE THE REASON FOR THE ARBITRATOR'S AWARD OF
"DUTY DAYS" AS A "PARTICIPANT/WITNESS" IS NOT ENTIRELY CLEAR IN THE
AWARD, IT WOULD APPEAR FROM THE RECORD AS A WHOLE, INCLUDING THE
ARGUMENTS MADE BY THE AGENCY IN ITS PETITION FOR REVIEW, THAT THIS PART
OF THE AWARD RELATED TO THE GRIEVANT'S PREPARATION TIME FOR THE
ARBITRATION HEARING. IT IS NOTED FROM THE RECORD BEFORE THE AUTHORITY
THAT ARTICLE 13 ("GRIEVANCE PROCEDURE"), SECTION 6 OF THE PARTIES'
AGREEMENT PROVIDES TEACHERS AND ASSOCIATION REPRESENTATIVES REASONABLE
AMOUNTS OF OFFICIAL TIME FOR PREPARATION AND PRESENTATION OF GRIEVANCES.
/4/ THE AWARDING OF DUTY DAYS FOR PREPARATION TIME FOR THE GRIEVANT
HEREIN, THEREFORE, WOULD APPEAR TO HAVE A RATIONAL BASIS IN THE
AGREEMENT, AND CANNOT BE SAID TO BE SO UNCONNECTED WITH THE WORDING AND
PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN
INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR. THEREFORE, THERE IS NO
BASIS FOR FINDING PART 3 OF THE AWARD DEFICIENT ON THE GROUND THAT THE
AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT.
THE AGENCY'S SECOND EXCEPTION TO PART 3 OF THE AWARD IS THAT IT
EXCEEDS THE ARBITRATOR'S AUTHORITY. IN SUPPORT OF THIS EXCEPTION, THE
AGENCY CONTENDS THAT THE PARTIES' AGREEMENT PROVIDES NO SEPARATE
ENTITLEMENT FOR PREPARATION TIME AND THAT NO JUSTIFICATION FOR THIS
AWARD, OTHER THAN A VAGUE REFERENCE TO ARTICLE 13, WAS GIVEN BY THE
ARBITRATOR.
THE AGENCY'S SECOND EXCEPTION STATES A GROUND UPON WHICH THE
AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE
STATUTE. DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE AND LOCAL
1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA NO. 38 (1980).
IN THIS CASE, HOWEVER, THE RECORD BEFORE THE AUTHORITY DOES NOT
DEMONSTRATE THAT THE AWARD EXCEEDS THE ARBITRATOR'S AUTHORITY. THAT IS,
THERE IS NO INDICATION THAT THE SCOPE OF THE ISSUE BEFORE THE ARBITRATOR
WAS SO LIMITED, BY THE PARTIES OR THE AGREEMENT, SUCH THAT HE EXCEEDED
HIS AUTHORITY BY AWARDING THE GRIEVANT "DUTY DAYS" FOR PREPARATION FOR
THE ARBITRATION. ESSENTIALLY, BY ARGUING THAT IT CANNOT FIND
"JUSTIFICATION" FOR THE AWARD OF PREPARATION TIME IN THE AGREEMENT, THE
AGENCY IS REITERATING ITS ARGUMENTS WITH RESPECT TO ITS CONTENTION THAT
THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT. AS PREVIOUSLY
STATED, IT DOES NOT APPEAR THAT THE ARBITRATOR'S AWARD OF PREPARATION
TIME IS WITHOUT A RATIONAL BASIS IN THE AGREEMENT. THEREFORE, THERE IS
NO BASIS FOR FINDING PART 3 OF THE AWARD DEFICIENT ON THE GROUND THAT
THE ARBITRATOR EXCEEDED HIS AUTHORITY.
THE AGENCY'S THIRD EXCEPTION TO PART 3 OF THE AWARD IS THAT THE AWARD
VIOLATES LAW AND REGULATION BY BEING PUNITIVE IN NATURE. IN SUPPORT OF
THIS EXCEPTION, THE AGENCY CONTENDS THAT, SINCE THE AWARD "LACKS
JUSTIFICATION," IT IS THUS ILLEGAL AND UNPAYABLE. THE AGENCY FURTHER
CONTENDS THAT ONE OF THE DISPUTED DUTY DAYS AWARDED BY PART 3 OF THE
AWARD, APRIL 9, HAD BEEN PREVIOUSLY GIVEN TO THE GRIEVANT BY THE
ACTIVITY AS "ANY-PURPOSE-LEAVE" /5/, AND THAT THEREFORE COMPLIANCE WITH
THE ARBITRATOR'S AWARD WOULD RESULT IN DUAL COMPENSATION, WHICH IS
ILLEGAL.
THE AGENCY'S THIRD EXCEPTION STATES A GROUND, I.E. THAT THE AWARD
VIOLATES LAW OR REGULATION, ON WHICH THE AUTHORITY WILL FIND AN AWARD
DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE. HOWEVER, IN THIS
CASE, THE RECORD BEFORE THE AUTHORITY DOES NOT DEMONSTRATE THAT THE
AWARD VIOLATES LAW OR REGULATION. AS TO THE CONTENTION THAT PART 3 OF
THE AWARD IS ILLEGAL BECAUSE IT "LACKS JUSTIFICATION," AS STATED IN THE
DISCUSSION CONCERNING THE AGENCY'S FIRST AND SECOND EXCEPTIONS TO PART 3
OF THE AWARD, IT HAS NOT BEEN DEMONSTRATED THAT PART 3 OF THE
ARBITRATOR'S AWARD IS WITHOUT JUSTIFICATION IN THE AGREEMENT. AS TO THE
AGENCY'S CONTENTION THAT APRIL 9 WAS GIVEN TO THE GRIEVANT AS
"ANY-PURPOSE-LEAVE", AND THAT COMPLIANCE WITH PART 3 OF THE AWARD WOULD
RESULT IN ILLEGAL DUAL COMPENSATION, THE RECORD BEFORE THE AUTHORITY
DOES NOT DEMONSTRATE THAT THE AWARD REQUIRES THE AGENCY TO COMPUTE AND
MAKE ANY ILLEGAL PAYMENTS TO THE GRIEVANT. IN THIS REGARD, THE
ARBITRATOR'S AWARD MERELY STATES THAT THE FIVE DAYS IN DISPUTE IN PART 3
OF THE AWARD "ARE TO BE DUTY DAYS." IN EFFECT, THE AWARD DOES NO MORE
THAN STATE THAT THE GRIEVANT HAS A GENERAL ENTITLEMENT TO BE CONSIDERED
A PARTICIPANT/WITNESS ON THE DAYS IN QUESTION, AND THEREBY BE IN A DUTY
STATUS. THE AWARD IN NO MANNER DIRECTS THE PAYMENT OF DUAL COMPENSATION
CONTRARY TO THE REQUIREMENTS OF APPLICABLE LAW AND REGULATIONS, AND THE
AGENCY HAS NOT DEMONSTRATED IN WHAT WAY IT MIGHT. THEREFORE THE
AGENCY'S THIRD EXCEPTION PROVIDES NO BASIS FOR FINDING PART 3 OF THE
AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE AND SECTION
2411.37 OF THE AMENDED RULES OF PROCEDURE.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37 OF THE
AMENDED RULES, THE AWARD OF THE ARBITRATOR IS MODIFIED BY STRIKING PART
2 THEREOF CONSISTENT WITH THIS OPINION AND, AS SO MODIFIED, IS
SUSTAINED. IT IS NOTED THAT PART 2 OF THE AWARD ESSENTIALLY CONSTITUTES
AN APPARENT ATTEMPT BY THE ARBITRATOR TO REMEDY A VIOLATION OF THE
AGREEMENT WHICH HE DETERMINED WAS COMMITTED BY THE AGENCY. ALTHOUGH WE
HAVE FOUND THAT THE REMEDY AS FASHIONED BY THE ARBITRATOR HEREIN FAILED
TO DERIVE ITS ESSENCE FROM THE PARTIES' AGREEMENT, THIS WOULD NOT
PRECLUDE THE PARTIES FROM AGREEING BETWEEN THEMSELVES TO AN APPROPRIATE
REMEDY FOR THE VIOLATION, SUCH AS INTERSPERSING THE LEAVE WITHOUT PAY
AND "RELEASE TIME" DAYS, OR FROM AGREEING TO RESUBMIT THE ISSUE OF AN
APPROPRIATE REMEDY TO THE ARBITRATOR, OR TO ANOTHER ARBITRATOR.
ISSUED, WASHINGTON, D.C., AUGUST 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ ARTICLE 8 OF THE PARTIES' AGREEMENT, "USE OF OFFICIAL TIME,"
PROVIDES IN RELEVANT PART:
SECTION 2. THE ASSOCIATION PRESIDENT SHALL RECEIVE NINETY (90) DAYS
RELEASE TIME IN FULL
PAY STATUS IN EACH SCHOOL YEAR FOR THE PURPOSE OF CONDUCTING
LABOR/MANAGEMENT BUSINESS. EACH
AREA DIRECTOR SHALL RECEIVE FORTY-FIVE (45) DAYS RELEASE TIME IN FULL
PAY STATUS IN EACH
SCHOOL YEAR FOR THE PURPOSE OF CONDUCTING LABOR/MANAGEMENT BUSINESS.
THE PRESIDENT AND EACH
AREA DIRECTOR SHALL GIVE HIS/HER PRINCIPAL SUFFICIENT NOTICE SO THAT
A SUBSTITUTE MAY BE
ACQUIRED BEFORE TAKING SUCH RELEASE TIME. NORMALLY FIVE WORKING DAYS
SHALL BE CONSTRUED AS
SUFFICIENT NOTICE. SHOULD USE OF OFFICIAL TIME LIMITATIONS BE ISSUED
BY AN OUTSIDE AGENCY
WHICH WOULD REQUIRE REDUCTION OF THIS NINETY DAY ALLOWANCE FOR THE
PRESIDENT AND FORTY-FIVE
DAY PER AREA DIRECTOR ALLOWANCE THEN THE PRESIDENT AND EACH AREA
DIRECTOR SHALL RECEIVE THE
MAXIMUM TIME ALLOWED BY SUCH OUTSIDE AGENCY REGULATION.
SECTION 3. IN ADDITION TO THE ABOVE PROVISION, THE ASSOCIATION
PRESIDENT SHALL BE ALLOWED
TO EXERCISE THE OPTION OF TAKING LEAVE WITHOUT PAY FOR ANY REMAINING
PORTION OF THE SCHOOL
YEAR PROVIDED MANAGEMENT IS GIVEN ADEQUATE NOTICE. SHOULD THE
PRESIDENT EXERCISE THIS OPTION,
HE/SHE SHALL BE RETURNED TO THE SAME SCHOOL AND EVERY REASONABLE
EFFORT SHALL BE MADE BY
MANAGEMENT WHEN HE/SHE IS RETURNED TO DUTY TO RETURN HIM/HER TO THE
SAME POSITION PREVIOUSLY
HELD IN THAT SCHOOL.
/2/ APPENDIX 1 OF THE UNION'S BRIEF BEFORE THE ARBITRATOR PROVIDES:
DISPUTED DAYS IN THE SCHEDULE OF THE OEA PRESIDENT. LWOP WAS DENIED
BY DODDS FOR EACH. THE
DEA ASKS THAT EACH BE CHANGED TO "EXCUSED FROM DUTY WITHOUT LOSS OF
PAY AND WITHOUT CHARGE TO
LEAVE" AND THAT THEY NOT BE COUNTED AS ANY OF THE 90 DAYS OF RELEASE
TIME IN FULL PAY STATUS
SPECIFIED IN ARTICLE 8, SECTION 2 OF THE AGREEMENT. (TABLE OMITTED)
/3/ ARTICLE 13, SECTION 10E OF THE PARTIES' AGREEMENT PROVIDES:
E. IF THE PARTIES FAIL TO AGREE ON A JOINT SUBMISSION OF THE ISSUE
FOR ARBITRATION, EACH
SHALL SUBMIT A SEPARATE SUBMISSION AND THE ARBITRATOR SHALL DETERMINE
THE ISSUE OR ISSUES TO
BE HEARD. THE ARBITRATOR'S HEARING WILL NORMALLY BE AT THE SCHOOL
SITE. ALL PARTICIPANTS,
INCLUDING WITNESSES, IN THE HEARING SHALL BE IN A DUTY STATUS AND, IN
THE EVENT THE HEARING IS
NOT HELD AT A SITE WITHIN COMMUTING DISTANCE, PARTICIPANTS, INCLUDING
WITNESSES, SHALL BE
PROVIDED TRANSPORTATION IN ACCORDANCE WITH THE JTR, VOL. II. BASED
ON THIS INFORMATION, THE
ARBITRATOR SHALL DETERMINE THE WITNESSES TO PROVIDE TESTIMONY. EACH
PARTY MAY RECOMMEND
WITNESSES BY PROVIDING FULL NAME AND ADDRESS, A NOTARIZED STATEMENT
SETTING FORTH THE EXPECTED
TESTIMONY, AND AN EXPLANATION OF THE RELEVANCE OF THE TESTIMONY TO
THE ISSUE.
/4/ RELEVANTLY, ARTICLE 13, SECTION 6 PROVIDES:
B. A TEACHER, IN PRESENTING A GRIEVANCE UNDER THIS AGREEMENT, SHALL:
. . . .
(4) BE ENTITLED TO A REASONABLE AMOUNT OF OFFICIAL TIME FOR THE
PREPARATION AND
PRESENTATION OF HIS/HER GRIEVANCE, IF HE/SHE IS IN AN ACTIVE DUTY
(PAY) STATUS;
. . . .
C. AN ASSOCIATION REPRESENTATIVE WHO IS REPRESENTING A TEACHER IN A
GRIEVANCE PROCEEDING
SHALL:
. . . .
(2) BE ALLOWED A REASONABLE AMOUNT OF OFFICIAL TIME TO DISCUSS,
PREPARE FOR AND PRESENT
GRIEVANCES, INCLUDING ATTENDANCE AT MEETINGS WITH MANAGEMENT
OFFICIALS.
/5/ ARTICLE 19, SECTION 1 OF THE PARTIES' AGREEMENT PROVIDES, IN
RELEVANT PART:
EACH TEACHER IS ENTITLED TO USE UP TO THREE DAYS LEAVE PER SCHOOL
YEAR FOR ANY PURPOSE, AND
IS NOT OBLIGATED TO STATE THE SPECIFIC REASONS FOR REQUESTING SUCH
LEAVE.