Defense Language Institute, Foreign Language Center (Activity) and National Federation of Federal Employees, Local 1263 (Union) 

 7 FLRA No. 85
 
 DEFENSE LANGUAGE INSTITUTE,
 FOREIGN LANGUAGE CENTER
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1263
 Union
 
                                            Case No. O-AR-135
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR DONALD H. WOLLETT FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE ACTIVITY DID NOT FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY ISSUED A DIRECTIVE CHANGING THE NUMBER OF HOURS WHICH AN
 INSTRUCTOR MUST SPEND IN CLASSROOM TEACHING (INSTRUCTOR CONTRACT HOURS
 OR PLATFORM HOURS) FROM 4 TO 5 HOURS A DAY AND FROM 20 TO 25 HOURS A
 WEEK.  THE UNION FILED A GRIEVANCE OVER THE ACTIVITY'S FAILURE TO
 NEGOTIATE OVER THE CHANGES AND THE CASE WENT TO ARBITRATION AT WHICH THE
 ISSUES WERE:
 
    (I) DID THIS ACTION BY THE DEFENSE LANGUAGE INSTITUTE, FOREIGN
 LANGUAGE CENTER BREAK WITH PAST PRACTICE AND THEREBY BREACH THE
 PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT AND/OR PERTINENT
 REGULATIONS?
 
    (II) WAS THIS DECISION THE EXERCISE OF A MANAGEMENT RIGHT, TO WIT,
 THE RIGHT TO ASSIGN WORK, WHICH IS NON-BARGAINABLE AND THEREFORE
 NON-GRIEVABLE AND NON-ARBITRABLE?
 
    THE ARBITRATOR FIRST RULED THAT THE MATTER WAS ARBITRABLE.  AS TO THE
 MERITS OF THE CASE, HE NOTED THAT ALTHOUGH THERE HAD BEEN A
 LONG-STANDING PRACTICE OF REQUIRING ONLY 20 PLATFORM HOURS PER WEEK, THE
 NEGOTIATED AGREEMENT ITSELF WAS SILENT AS TO THE NUMBER OF PLATFORM
 HOURS REQUIRED PER WEEK.  BECAUSE OF THE LACK OF A SPECIFIC AGREEMENT
 PROVISION ON PLATFORM HOURS, THE ARBITRATOR LOOKED TO THE CASE RECORD
 FOR EVIDENCE AS TO WHETHER OR NOT THE PAST PRACTICE WAS IN FACT
 SUPPORTED BY MUTUAL AGREEMENT OF THE PARTIES.  IN THIS REGARD, HE FOUND:
 
    IN MY VIEW, THE RECORD EVIDENCE DEVELOPED IN THIS CASE DOES NOT
 SUPPORT A FINDING THAT THE
 
    LONGSTANDING PRACTICE REQUIRING ONLY 20 PLATFORM HOURS PER WEEK WAS
 BASED UPON MUTUAL
 
    AGREEMENT BY THE UNION AND THE INSTITUTE.  ACCORDINGLY, THE DECISION
 AND ITS IMPLEMENTATION
 
    COULD BE EFFECTED WITHOUT THE UNION'S CONSENT AND DID NOT CONSTITUTE
 A VIOLATION OF THE
 
    COLLECTIVE BARGAINING AGREEMENT.
 
    ON THIS BASIS THE ARBITRATOR DISMISSED THE GRIEVANCE.  /2/
 
    IN ITS EXCEPTIONS THE UNION ALLEGES THE AWARD IS DEFICIENT BECAUSE IT
 IS CONTRARY TO PERTINENT CASE LAW CONCERNING THE ISSUE OF PAST PRACTICE
 AND BECAUSE THE ARBITRATOR ERRED IN DISMISSING THE PAST PRACTICE ON THE
 GROUND THAT IT WAS NOT BASED ON MUTUAL AGREEMENT BETWEEN THE PARTIES.
 
    THE AUTHORITY HAS PREVIOUSLY HELD, IN RESPONSE TO AN ALLEGATION THAT
 AN ARBITRATOR'S AWARD WAS DEFICIENT BECAUSE IT FAILED TO RECOGNIZE A
 PAST PRACTICE, THAT:
 
    (B)Y ARGUING THAT THE ARBITRATOR FAILED TO RECOGNIZE A PAST PRACTICE,
 THE UNION IS MERELY DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION AND
 APPLICATION OF THE AGGREGATE COLLECTIVE BARGAINING AGREEMENT OF THE
 PARTIES, BASED ON THE EVIDENCE BEFORE HIM . . .
 
    LETTERKENNY ARMY DEPOT AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1429, 5 FLRA NO. 35(1981).  THUS, THE UNION IN THE INSTANT CASE,
 BY CONTENDING THAT THE ARBITRATOR FAILED TO GIVE PROPER CONSIDERATION TO
 A PAST PRACTICE, IS DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION AND
 APPLICATION OF THE COLLECTIVE BARGAINING AGREEMENT.  THIS IS NOT A BASIS
 FOR FINDING AN ARBITRATION AWARD DEFICIENT.  UNITED STATES ARMY MISSILE
 MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO.  60(1980).
 THEREFORE, THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C. JANUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.
 
    /2/ THE ARBITRATOR SPECIFICALLY NOTED THAT THE PARTIES HAD NOT
 AUTHORIZED HIM TO DEAL WITH THE QUESTION OF WHETHER MANAGEMENT HAD
 VIOLATED THE AGREEMENT BY FAILING TO GIVE THE UNION ADVANCE NOTICE OF
 THE CHANGE AND WHETHER MANAGEMENT HAD A DUTY TO BARGAIN OVER THE IMPACT
 OF THE DECISION, AND THEREFORE HE STATED THAT HE WAS EXPRESSING NO
 OPINION ON THESE SUBJECTS.