40:1016(88)AR - - Navy, Naval Weapons Support Center, Crane, IN and AFGE Local 1415 - - 1991 FLRAdec AR - - v40 p1016
[ v40 p1016 ]
The decision of the Authority follows:
40 FLRA No. 88
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Frank A. Keenan filed by the Union 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 to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement and past practice by requiring certain employees to take motorcycle safety training on nonduty time. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
Agency regulations require employees who operate motorcycles on naval installations to attend and complete a motorcycle training course. Until January 1987, employees were "provided the opportunity, at government expense, to take the required eight (8) hour . . . training course 'on the clock.'" Award at 2. From January 1987 through August 1989, the Agency did not provide the training course and, instead, accepted the Indiana State Motorcycle License Endorsement in lieu of the course.
On June 1, 1988, an Agency regulation was implemented requiring the motorcycle safety course to be increased to 16 hours of instruction. In September 1989, the Agency ceased accepting the Indiana license endorsement and began sponsoring a 16-hour safety training course which was held "off the clock." Id. at 3.
A grievance was filed over the Agency's implementation of the new training requirement and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:
Whether the [Agency] violated Article 29 of the Collective Bargaining Agreement with [the Union] by deviating from a past practice of providing the motorcycle safety training course "on the clock."
Id. at 13.(1)
As relevant here, the Arbitrator concluded that the Agency did not violate the parties' agreement by instituting a 16-hour training course on nonduty time. He rejected, in this regard, the Union's contention that there was a "'negotiated agreement'" requiring the Agency to conduct the training on duty time. Id. at 17. The Arbitrator also rejected the Union's argument that the Agency violated a past practice between the parties. The Arbitrator concluded that, "assuming without deciding" that a past practice requiring such training to be conducted on duty time existed, such a practice was not enforceable because it violated the Agency's right to assign work. Id. at 18.
The Arbitrator also found that the Agency did not wrongfully deny the Union the opportunity to negotiate over the impact and implementation of the new training requirements. The Arbitrator stated that this "issue [was] not set forth in the 'stipulated issue[.]'" Id. The Arbitrator also stated, however, that as the Union never sought to bargain over the new training course, "it simply makes no sense to find that the [Agency] has somehow breached any of its obligations concerning [i]mpact and [i]mplementation bargaining." Id. at 22-23. The Arbitrator noted, in this regard, that there was no "real issue" that the Union was notified of the Agency's intention to implement the new training requirement. Id. at 22 n.3. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union argues that the award is deficient because it is contrary to law, rule, and regulation. The Union asserts that it was never notified properly that the new training course would not be provided on duty time and that the award denies its right to negotiate over the impact and implementation of the change in the parties' past practice. The Union also states that although it "did/does recognize that [the disputed training] falls within management rights[,]" the Arbitrator erred by failing to find that the Agency violated the parties' past practice. Exceptions at 2.
IV. Analysis and Conclusions
We reject the Union's contention that the Arbitrator's failure to enforce the parties' past practice is contrary to law. Put simply, the Arbitrator did not fail to enforce a past practice. Indeed, the Arbitrator expressly did not find that the parties had a binding past practice requiring the Agency to provide motorcycle safety training on duty time. The Arbitrator found, in this regard, that although both parties' arguments on this point had merit, even assuming that such a practice existed, it was not enforceable.
As the Arbitrator did not find that the parties had a binding past practice requiring the Agency to provide the disputed training on duty time, the Union's arguments that the Arbitrator improperly failed to enforce such practice does not demonstrate that the award is deficient.(2) See The United States Air Force, Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 343 (1987) (contention that the arbitrator erred in not finding the grievant's actions to be in accordance with established past practice provided no basis for finding the award deficient).
We also reject the Union's contention that the award improperly denies its right to negotiate over the impact and implementation of the new training requirement. The Arbitrator found that although the Union was notified of the change, the Union never requested bargaining. The Arbitrator relied, in this regard, on the Union President's testimony that "bargai