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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









LOCAL 1415




May 24, 1991

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 "bargaining was not sought by him because he felt that the grievance route was the way to go[.]" Award at 5.

In our view, the Union's exception on this point constitutes mere disagreement with the Arbitrator's findings that although the Union was notified of the Agency's change in the training requirement, it did not seek bargaining over the change. Disagreement with the Arbitrator's evaluation of evidence and findings and conclusions based thereon provides no basis for finding an award deficient. For example, U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Council of Prison Locals, Local 720, 38 FLRA 1438, 1441-42 (1991).

The Union has not demonstrated that the Arbitrator's award is deficient on any grounds set forth in section 7122(a) of the Statute. Therefore, we will deny the Union's exceptions.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Article 29 provides, in relevant part:

Section 1. The Employer and the Union agree that the training and development of employees . . . is a matter of primary concern to both parties and that the procedures and policies shall be developed, through labor-management cooperation, to seek the maximum training and development of all employees consistent with the activity's mission requirements. . . .

. . . .

Section 3. The training needs of all employees . . . shall be given fair and equitable treatment consistent with established Center priorities and in accordance with pertinent regulations regarding training of employees. . . .

Attachment to Exceptions at 2-3.

2. The Union does not except to the Arbitrator's conclusion that the parties did not have a "negotiated agreement" requiring the Agency to provide motorcycle safety training on duty time. Award at 17. It is unnecessary, therefore, to apply the framework set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990).