36:0086(10)AR - - Army, HQ XVIII Airborne Corps, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec AR - - v36 p86
[ v36 p86 ]
The decision of the Authority follows:
36 FLRA No. 10
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS XVIII AIRBORNE CORPS
FORT BRAGG, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 20, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator James P. Whyte. The Arbitrator ruled that the parties' collective bargaining agreement does not require management to grant to any union officer, who is also a steward, the official time provided for stewards in addition to the official time provided for officers.
The Union filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition to the exceptions.
We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The parties stipulated the following issue for resolution by the Arbitrator:
Does Section 5a, Article VI, provide Union Officers who were Stewards before being elected Officers an entitlement to 10 hours representational time per pay period as Stewards in addition to the weekly block of representational time for their Officer positions? If so, what is the remedy?
Arbitrator's Award at 1. According to the Arbitrator, Article VI, Section 5a of the parties' collective bargaining agreement, effective April 3, 1989, provides:
It is understood by the parties that reasonable time for the purposes listed above [Official Time/Union Representation] is established as follows:
President 28 hours per week Executive Vice-President 20 hours per week 1st Vice-President 18 hours per week 2nd Vice-President 16 hours per week Chief Steward 14 hours per week All Stewards 10 hours per week
The Arbitrator denied the grievance. He ruled that Article VI, Section 5a does not require management to grant to any of the five listed officers, when they are also stewards, official time of 10 hours per week listed for "All Stewards" in addition to the official time provided to each officer. Id. at 4.
The Arbitrator noted that the Union's grievance was principally based on the allocation of 10 hours per week to "All Stewards." In the Union's view, because a vice-president, for example, may also be a steward, the vice-president should be allowed official time for duties as an officer, as well as additional official time for activities as a steward. However, the Arbitrator concluded that the bargaining history did not support the Union's position. Id. at 3. The Arbitrator also concluded that the use of the term "All Stewards" could not be construed to include officers who were also stewards. The Arbitrator found the contract interpretation principle of "expressio unius est exclusio alterius," which he characterized as expression of one thing is the exclusion of another, to be applicable. In the Arbitrator's view, by listing officers by title, including the chief steward, and stewards only as stewards, the allocated official times of officers excluded additional official time for officers who were also stewards. Id. at 4.
The Arbitrator also noted that a decision of the Federal Service Impasses Panel (FSIP) in 1985 involving the same parties approved a reduction in official time for officers and another FSIP decision in 1988 refused to approve an increase in official time for certain vice-presidents. The Arbitrator stated that granting the grievance would significantly undermine these decisions. Id.
The Union contends that the award: (1) is inconsistent with Federal law; (2) is based on a nonfact; and (3) fails to draw its essence from the collective bargaining agreement.
The Union contends that, on the basis of the testimony of the Union's chief negotiator, the Arbitrator made an error of law in finding that the bargaining history did not support the Union's position. The Union states that its chief negotiator testified that he understood that officers who were also stewards would receive steward official time in addition to officer official time when he accepted the Agency's proposed language change to "All Stewards." The Union argues that under contract law its understanding of the language change should prevail because the Agency did not clearly express the intended meaning to exclude granting officers who were also stewards official time and the Union was misled.
The Union contends that the Arbitrator's application of the principle of "expressio unius est exclusio alterius" is based on a nonfact because the Union did not agr