30:0075(14)AR - SBA and AFGE Local 2532 -- 1987 FLRAdec AR

[ v30 p75 ]
The decision of the Authority follows:

30 FLRA NO. 14
30 FLRA 75

 23 NOV 1987





Case No. 0-AR-1402


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Ellen M. Bussey filed by the Small Business
Administration (the Agency) under section 7122(a) of the Federal
Service Labor - Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. For the
following reasons, we deny the Agency's exceptions.

     II. Background and Arbitrator's Award

     The grievance in this case concerned a request by the Local
Union President for 100 percent official time which was denied by
the Agency. The grievant was elected President of American
Federation of Government Employees (AFGE), Local 2532 in October
1986. At the same time, he became Vice President of Council 228
of the National Council of Small Business Administration (SBA)
Locals. On October 3, 1986, the grievant notified the Agency's
Director of Personnel, by memorandum, that he would be on 100
percent official time status, effective immediately and "stated
that it was his understanding that he would not be required to
sign in and out each day" as a participant in the Agency's
flexitime program. Arbitrator's Award at 5. The grievant cited
past practice and his representational responsibilities as
justification for the 100 percent official time.

     The Director of Personnel responded the Union President's
memorandum on October 6 and instructed him to "report to
his assigned duty station at the start of his regular duty hours
each day, to obtain prior approval for all official time as
'reasonable and necessary' in accordance with Article 11, Section
2 of the Agreement, and pointed out that the Agency considered
100 percent official time excessive." Arbitrator's Award at 6. On
October 27, the grievant requested formal negotiations on the 100
percent official time and flexitime issues. The Agency rejected
the request on October 29. The Union grieved the Agency's refusal
to grant 100 percent official time and its refusal to waive the
requirement that the grievant sign in and out each day. After
Step 2 of the grievance procedure, the matter was submitted to

     The issue before the Arbitrator was whether the Agency
violated section 7131(d) of the Statute and the parties'
collective bargaining agreement by not granting the grievant up
to 100 percent official time whenever the Union considered it
reasonable and necessary.

     The Arbitrator held that it was not within the Agency's
discretion to decide which union grievances have a reasonable
chance of success and should, therefore, be developed on official
time. The Arbitrator also held that the Union President did not
have the authority to determine, as he did in his letter to the
Director of Personnel, that his absence from his assigned duty
station would not affect the Agency's operations. The Arbitrator
determined that there was no  requirement that the Union
President be automatically granted 100 percent official time. The
Arbitrator noted, however, that the previous President of AFGE
Local 2532 was on 100 percent official time with minor
exceptions. Further, the Arbitrator stated that the evidence
showed that the previous president did request advance permission
to take official time, but was not required to adhere to the
detailed justification procedures outlined in the parties'
agreement. The Arbitrator stated that nothing in the record
indicated that the grievant knew or should have known, when he
was elected as Union President, that the official time conditions
which applied to the outgoing president would not apply to him,
that is, that management would not equate the agreement
provisions of "reasonable and necessary" with 100 percent
official time as it had in the past or that management would
apply more stringent scrutiny to his request for official time.

     The Arbitrator found that the Agency's assertions that the
previous Union President had abused official time did not justify
its unilateral change in the established procedure for requesting
and granting official time. The Arbitrator concluded
that the Agency has a right to reevaluate its policy concerning
official time with respect to quantity and approval, but the
Agency could not unilaterally decide that "reasonable and
necessary" official time means 100 percent in 1985 and only 40
percent in 1987. Arbitrator's Award at 15. The Arbitrator held
that the grievant in this case is entitled to 100 percent
official time only if he can document that appropriate Union
business requires 100 percent of his workweek. Id. at 14. The
Arbitrator ruled that the Agency must formally notify the Union
of the contemplated changes and negotiate with the Union, as
requested, concerning the proposed changes in the procedure for
requesting and granting official time. The Arbitrator noted
further that the parties' agreement provides for special official
time for officers of the National Council of SBA Locals and that
since the grievant became an officer of the council his union
responsibilities had increased over those of previous presidents
of the Local.

     As her award, the Arbitrator held (Award at 16):

     The President of Local 2532 is not automatically entitled to
100% official time by Law or Agreement. The Agency did grant the
previous Union President 100% official time for some years,
however, and cannot change such an established practice, or the
procedures required for obtaining official time approval,
unilaterally and arbitrarily. It must formally put the Union on
notice and negotiate both issues in good faith, allowing (the
grievant) sufficient time to enable him to carry out appropriate
Union activities in accordance with the findings.

     III. Positions of the Parties

     A. Agency's Exceptions

     The Agency contends that the Arbitrator's award is contrary
to law in several respects. First, the Agency argues that the
award is contrary to section 7131(d) of the Statute and the
parties' Master Agreement because it prevents the Agency from
considering its work load needs in granting official time.
Secondly, the Agency argues that the award is contrary to law
because it prevents the Agency from correcting a past error
regarding the amount of official time granted presidents of the
Union Local and the process by which requests for official time
are granted. Finally, the Agency asserts that the award is
contrary to the parties'] Master Agreement because it
orders the Agency to negotiate a national policy on the local
level instead of with the National Council of Locals.

     B. Union's Opposition

     The Union contends that the Arbitrator's award is fully
consistent with the letter and the spirit of section 7131(d). The
Union also argues that the award is consistent with the terms of
the parties' Master Agreement. The Union maintains further that
the Agency's arguments that the award precludes it from
correcting a past error and requires it to negotiate with the
Union in violation of the Master Agreement provide no  basis for
review and should therefore be rejected.

     IV. Discussion