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22 FLRA NO. 9

U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT

Activity

and

LOCAL 29, NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Union

Case No. 0-AR-1072

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Charles E. Clark filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The dispute submitted to arbitration in this case concerned the procedures for granting official time for representational activities. In settlement of iseveral unfair labor practice charges, the parties agreed that the Activity's implementation of two directives or "management advisories," which provided guidance and instructions for supervisors to follow in approving and recording the use of official time, could be grieved by the Union and submitted to arbitration. The parties further agreed that the scope of the grievance and the award of the arbitrator would be limited to the procedures regarding the granting of official time for representational purposes for specified stewards and officers. Pursuant to this agreement, a grievance

was filed and [ v22 p87 ] submitted to arbitration in which one of the issues the parties stipulated to was whether the procedures

for granting official time implemented by the management

advisories violated the official time provisions of the parties' collective bargaining agreement or past practices of the parties. According to the Arbitrator, the dispute primarily concerned whether the management advisories could properly require the specified officials and stewards to obtain permission in order to perform union representational functions. The order to perform union representational functions. The Arbitrator determined that such a requirement was not consistent with the language of the parties' agreement and that the past practice of the parties clearly was only for the specified officials and stewards to apprise or inform their supervisors of the need to perform representational activities and not to request permission. Consequently, as his award the Arbitrator ruled that the

procedures for granting official time implemented by the

management advisories violated the official time provisions of

the parties' agreement and past practices. Accordingly, the Arbitrator ordered both management advisories withdrawn with the past practices reinstated until negotiation of a new contract is completed.

III. EXCEPTION

A. Agency's Contentions

In its exception the Agency contends that the award is deficient as contrary to the Statute. Specifically, the Agency argues that the award is inconsistent with management's right to assign work in accordance with section 7106(a) (2)(B) of the Statute. The Agency maintains that the Arbitrator's

interpretation of the agreement restricts management's right to schedule the use of official time consistent with the mission requirements of the Agency and to obtain information necessary to determine whether official time is used in accordance with the Statute.

B. Union Opposition

In its opposition the Union essentially argues that the

award only concerns the procedures regarding the granting of official time and does not restrict management's right in particular circumstances to disapprove the use of official time.

[ v22 p 88 ]

IV. ANALYSIS AND CONCLUSIONS

The Authority concludes contrary to the Agency that the

award is fully consistent with the Statute. The Authority finds that the Arbitrator's award is to the same effect as the Authority's decision and order in Veterans Administration,

Veterans Administration Medical Center, Muskogee, Oklahoma, 19

FLRA No. 122 (1985). In that case the Authority adopted the Judge's finding that prior to the unilateral implementation by

the activity of a requirement that union officers obtain

permission from their supervisors in order to take official time, there had been a past practice of allowing union officers to use official time at their discretion. Accordingly, in agreement with the Judge, the Authority determined that the activity's

unilateral change in policy without affording the union notice

and an opportunity to bargain concerning the change in

established practice violated section 7116(a)(1) and (5) of the Statute. In addition, the Authority ordered the activity on

request of the union to meet and negotiate with regard to any changes in established practices concerning the use of official time by unit employees serving as union officers and with regard

to the implementation of any such changes. Based on the decision

in VA Medical Center, Muskogee, the Authority finds that the

Agency in this case has failed to establish that the similar

order of the Arbitrator, withdrawing both advisories and reinstating the established past practices regarding the

procedures for granting official time until completion of negotiations, is contrary to the Statute. Furthermore, in

agreement with the Union, the Authority in particular concludes that the Agency fails to establish that the award is inconsistent with management's right to assign work. In accordance with the settlement agreement limiting the arbitrator's authority to the procedures regarding the granting of official time, the award

does not provide for any entitlement to an allocation of official time to a particular steward or official without regard to management needs and requirements regarding the performance of assigned work. Accordingly, no basis is provided for finding the award contrary to section 7106(a)(2)(B). See American Federation

of Government Employees, AFL - CIO, New York - New Jersey Council of District Office Locals, Social Security Administration and Department of Health and Human Services, Social Security [ v22 p 89 ] Administration District Office Operations, 7 FLRA 413

(1981); see also Overseas Federation of Teachers and Department

of Defense Dependent Schools, Mediterranean Region, 21 FLRA No. 81 (1986) (analysis of the relationship between section 7131(d) and section 7106 of the Statute).

V. DECISION

Accordingly, for these reasons, the Agency's exception is denied.

Issued, Washington, D.C., June 6, 1986. Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v22 p90 ]

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