34:0860(143)AR - - Army Transportation Center, Fort Eustis, Virginia and NAGE Local R4-6 - - 1990 FLRAdec AR - - v34 p860

[ v34 p860 ]
The decision of the Authority follows:

34 FLRA No. 143












February 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Ralph Winkler. The Arbitrator found that the grievants were not members of the bargaining unit involved in the dispute and, therefore, were not entitled to official time for Union representational duties. The Arbitrator also found, however, that the grievants could continue to use official time to represent bargaining unit employees for 6 months.

The Agency filed an exception to the Arbitrator's award 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 Union filed an opposition to the Agency's exception.

For the reasons discussed below, we conclude that the award is contrary to section 7105(a)(2)(A) of the Statute and must be set aside.

II. Background and Arbitrator's Award

This case involves two grievants who sought official time to represent employees in a unit of nonappropriated fund (NAF) employees. The issue before the Arbitrator was whether the grievants were NAF bargaining unit members and, therefore, entitled to official time to represent NAF employees.

The Arbitrator found that an employee is within the NAF unit if the employee's salary is paid from nonappropriated funds. The Arbitrator found that the grievants were assigned to an appropriated fund operation and were paid from appropriated funds. Thus, the Arbitrator concluded that the grievants were not within the NAF bargaining unit and were not entitled to official time under the parties' agreement covering the NAF bargaining unit.

The Arbitrator also found that the grievants should be permitted to represent NAF employees on official time for 6 months. The Arbitrator stated that it was "equitable" to allow the Union 6 months to "restructure its operation to accomodate [sic] the changes required by the Agency's discontinuance of official time" for the grievants. Arbitrator's Award at 6-7.

III. Positions of the Parties

A. The Agency's Exception

The Agency asserts that the Arbitrator's decision to grant the grievants official time for 6 months is contrary to law. The Agency argues that section 7131(d) of the Statute "provides for official time for representational purposes only when the representative and the represented are in the same bargaining unit." Agency's Exception at 2. The Agency requests that the Authority delete the portion of the award which provides that the grievants may continue to represent NAF employees on official time for 6 months.

B. The Union's Opposition

The Union argues that the portion of the Arbitrator's award which grants the grievants official time for 6 months is reasonable because it permits the Union a reasonable period of time to arrange its internal affairs.

The Union also raises two procedural issues. First, the Union asserts that the Agency's exception was not filed by a designated representative or the Agency's representative at the hearing. Second, the Union asserts that the Agency failed to provide the Union's representative with a copy of its exceptions.

Subsequent to the filing of its opposition, the Union filed a supplement to its opposition, contending that the Arbitrator lacked authority to determine the grievants' unit status. The Union later withdrew the supplemental submission.

IV. Procedural Matters

We conclude that the Agency's exception properly is before us. The exception was filed by the Chief of the Labor and Employee Relations Division of the Department of the Army. Nothing in the record before us indicates that the exception was not authorized by the Agency. Further, nothing in our Regulations requires an exception to be filed by a party's representative at an arbitration hearing. A party is free to designate different representatives for different purposes.

Second, the certificate of service attached to the Agency's exception states that a copy of the exception was served on the Union's president. The Agency also should have served a copy of its exception on the Union's counsel. See 5 C.F.R. § 2429.27(a).

The Union's counsel acknowledges that he received a copy of the exception, albeit from the Union's president. In addition, the Union did not request an extension of time to file its opposition and, in fact, filed the opposition well within the applicable 30-day time limit. In these circumstances, we find that no prejudice resulted from the Agency's failure to serve the Union's counsel with its exception. Accordingly, we reject the Union's procedural objections to the Agency's exception.

V. Analysis and Conclusion

We find that the Arbitrator's award is contrary to the Statute and must be set aside for a reason other than that raised by the Agency. In this case, the issue concerned the grievants' entitlement under a collective bargaining agreement to official time to represent NAF unit employees. In order to resolve this issue, the Arb