32:1238(167)AR - - AFGE Local 2612 and Griffiss AFB, NY - - 1988 FLRAdec AR - - v32 p1238

[ v32 p1238 ]
The decision of the Authority follows:

32 FLRA No. 167













Case No. 0-AR-1524


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Irving R. Markowitz. The Arbitrator found that "[t]he Employer did not violate the provision of the collective agreement or the statute in refusing to provide official time to the grievant or Union officials for the preparation of counter-proposals on the fact pattern of the instant case." Award at 7. The Arbitrator denied the grievance.

The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' negotiated agreement. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

This case arose as the result of the Activity's refusal to grant the Union president official time for hours spent by him on May 21, 1987, in the preparation of Union counter-proposals in connection with pending contract negotiations with the Activity. The Arbitrator found that the question before him was "whether or not the denial by the Employer of official time to the grievant to prepare counter-proposals in the preparation of contract negotiations was a violation of the provisions of the collective agreement or those of the United States Code pertaining thereto." Award at 2.

The Arbitrator found that the parties' collective bargaining agreement provided that nothing in the agreement could be construed to deny any employee a right which he has by law or regulation. Thus, the Arbitrator stated that it was necessary to first examine the applicable provisions of the Statute to determine the employee's right to official time. Award at 4 and 5.

The Arbitrator noted that the Authority held that sections 7131(a) and (b) neither specifically allowed nor disallowed the allotment of official time to the preparation for negotiations and that questions involving the use of official time for preparations are more appropriately resolved by the parties during negotiations or by arbitrators in the specific factual contexts of individual cases. American Federation of Government Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California, 3 FLRA 305 (1980). Accordingly, the Arbitrator determined that it was necessary to examine "the parties' collective agreement and their practices covering 'preparation time' for negotiations to determine whether the relevant language of their agreement and/or their practices concerning preparation time allow or disallow such official time." Award at 5.

Upon examination of the appropriate sections of the parties' collective bargaining agreement, the Arbitrator found that "[n]one of the contract provisions cited by the Union or Employer specifically deal with the issue herein e.g. - the preparation of proposals or counter-proposals for negotiations by Union representatives." Award at 5. The Arbitrator further found that "it has been conceded that for several years during and prior to the duration of the present contract, the Employer never provided official time to Union negotiators for contract preparation and particularly the development of Union proposals for negotiations nor did the Union request or even propose such grant." Id.

The Arbitrator rejected the Union's argument that the preparation of the counter-proposals was a necessary part of the negotiations because the negotiations resulted from the Employer's past refusal to negotiate in good faith. The Arbitrator found that "while it is true that counter-proposals are often made during negotiations (or at caucuses attending thereon), the affected proposals herein were made away from the bargaining table and not during actual negotiations." Award at 6.

The Arbitrator also rejected the Union's argument that a supervisor's granting of official time for preparation 2 weeks before the denial in the present case amounted to a past practice. The Arbitrator found that "at best there was some misunderstanding or lack of communication in connection with these events." Award at 6. The Arbitrator noted that while the grievant testified that he requested official time from his supervisor to develop counter-proposals, the supervisor stated that the grievant's request was for "President's time," to which he was entitled. Award at 6. According to the record, the Union president was allowed 4 paid hours per day for grievance and similar affairs which was referred to as "President's Time." Award at 6 n.2. The Arbitrator found that "there was no showing that the supervisor's permission to the grievant reflected in any way the position of management and thus was not binding on the Employer." Award at 6. Instead, the Arbitrator stated that a binding past practice must be so clear and unequivocal that it plainly reflects the mutual intent of the parties to follow it. He concluded that there was no showing of such a binding past practice in the instant case. Id.

Accordingly, the Arbitrator found that the Employer did not violate the provision of the collective bargaining agreement or the Statute in refusing to provide official time to the grievant or Union officials for the preparation of counter-proposals. Therefore, he denied the grievance.

III. Exceptions

The Union filed three exceptions to the Arbitrator's award. In its first exception, the Union contends that the Arbitrator misinterpreted the meaning of section 4 of the parties' ground rules for negotiation which allowed either party to caucus during th