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59 FLRA No. 88
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FORT WORTH, TEXAS
NATIONAL AIR TRAFFIC
December 19, 2003
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator I. B. Helburn filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
For the following reasons, we will dismiss two, and will deny one, of the Agency's exceptions. We also modify the Arbitrator's award.
II. Background and Arbitrator's Award
The Union filed numerous grievances alleging that the Agency violated Article 2 of the parties' Interim Collective Bargaining Agreement (ICBA) by denying requests for official time on the ground that those requests did not include the specific period during which the time would be taken and/or appropriate subcategories of time. [n1] The grievances were consolidated for presentation to the Arbitrator. As the basis for the grievances, the Union cited: (1) numerous instances in which the Agency denied otherwise proper requests for official time because the Union representative did not specify the particular time frame when the official time would be used and/or appropriate subcategories of time; and (2) a letter from a management official to a Union official requiring, among other things, that requests for official time include the category of time, and the "subcategory, as appropriate," and a statement as to "when the time (specifying the hour(s) during the work day official time is being requested) will be used." Letter of December 9, 2002, quoted in the Award at 5.
The issue, as stipulated by the parties, was as follows:
Did the Agency violate Article 2 of the NATCA-Aircraft Certification Agreement (Interim Collective Bargaining Agreement) when it required Union officials to list specific time(s) of the day as to when the requested official time was to be used and/or list subcategories? If so, what shall be the remedy?
Award at 7.
The Arbitrator sustained the grievance. The Arbitrator noted that "Article 2 does not explicitly require that employees requesting official time include a subcategory and a specific time frame in their request." Award at 11. The Arbitrator also stated that Article 2 "is not rigidly written so as to preclude the possibility" that it could take on a different meaning based on bargaining history or "well-established past practice." Id.
Based on the testimony of Union and Agency witnesses, the Arbitrator found that "there was almost no discussion of the relevant section of Article 2 during negotiations" and, thus, there "is no basis for a conclusion that the parties emerged from negotiations with a shared understanding of what the language meant." Id. Moreover, the Arbitrator found that, even if similar terms appear in contracts between these same parties in other bargaining units, there is no evidence as to bargaining history or practice in those units, so that it is possible the interpretation of those contracts is different from the intent of Article 2. Further, the Arbitrator found that when Agency representatives were asked at [ v59 p531 ] the bargaining table to explain how Article 2 would be implemented, they did not reference the requirement for notice as to the specific time the official time was to be used.
The Arbitrator also stated that "if the intent was as argued by [the Agency] and both parties had the same understanding, that understanding should have been reflected in the practice under the ICBA." Id. at 12. Based on the undisputed testimony of Union witnesses, the Arbitrator found that many Union representatives' requests for official time under the ICBA had been granted without specifying the particular time that the official time would be used. Moreover, the Arbitrator noted that the letter of December 9, 2002, indicated that "both parties had been inconsistent in their practices under the [ICBA] and that no past practice existed within the bargaining unit." Id. The Arbitrator also found that: (1) those instances in which employee requests did include a specific time were the result of management threats of discipline; and (2) requests "driven by fear of discipline" do not establish a "believable" past practice. Id. at 13.
The Arbitrator concluded that "[t]he evidence supports a conclusion that neither negotiating history nor past practice changes the plain meaning of the words in Article 2 that requests for official time `will specify the amount and category of time needed . . .'--no more and no less." Id. The Arbitrator also concluded that the letter of December 9, 2002, constituted "a unilateral attempt to expand contractual requirements not agreed to when Article 2 was negotiated." Id.
The Arbitrator ordered the Agency "to cease and desist from enforcing the requirements found to have violated Article 2." Id. at 14. The Arbitrator also ordered that any grievant who could make a "reasonable showing" that he or she used personal time for Union business after an official time request was denied because it did not include specific time frames and/or subcategories of time must receive one hour of discretionary official time "(subject to operational requirements) for each hour of personal time spent on Union business as a result of the denial, up to a maximum of 20 hours." Id. at 14-15.
III. Positions of the Parties
A. Agency Exceptions
The Agency contends, as its first exception, that the Arbitrator's award is contrary to a June 17, 2002, memorandum issued by the Office of Personnel Management (OPM) instructing all agencies to report the amount of official time used by employees to perform representational activities. According to the Agency, without information as to the specific time frames within which official time is used, which is precluded by the award, it will not be able to comply with OPM's instruction.
The Agency contends, as its second exception, that the award is contrary to law because it requires the granting of official time for the performance of Union business on personal time. According to the Agency, official time may only be granted for the performance of Union business on duty time.
The Agency contends, as its third exception, that the award is contrary to law because it abrogates management's right to determine its internal security practices under § 7106(a)(1) of the Statute. [n2] According to the Agency, the award prevents it from knowing the time frames within which employees will be engaged in Union business, which it claims will result in disruptions of Agency operations.
B. Union Opposition
The Union contends that, under § 2429.5 of the Authority's Regulations, the Authority should not consider the Agency's first exception because it concerns a matter that the Agency could have, but did not, raise before the Arbitrator. Specifically, the Union notes that the OPM memorandum predates the arbitration proceeding and the Agency did not raise it to the Arbitrator.
The Union argues, as to the Agency's second exception, that the Arbitrator's award is consistent with law because it only requires a grant of discretionary official time to employees who make a "reasonable showing" that they performed Union business on personal time because their request to perform that business on duty time was improperly denied.
The Union asserts, as to the Agency's third exception, that, under § 2429.5 of the Authority's Regulations, the Authority should not consider the exception because the internal security issue was not raised before the Arbitrator. [ v59 p532 ]
IV. Analysis and Conclusions
A. The Agency's First and Third Exceptions were not Raised Before the Arbitrator
It is well settled that the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., AFGE, Local 3584, 58 FLRA 473, 474 (2003). As the Union pointed out, the OPM memorandum relied on by the Agency existed at the time of the arbitration proceeding and could have been raised before the Arbitrator. Moreover, there is no indication in the record of this case that the Agency's internal security concerns were raised before the Arbitrator.
Consequently, since these issues could have been, but were not, raised in arbitration, they are not properly before the Authority. Accordingly, consistent with § 2429.5 of the Authority's Regulations, the Authority will not consider Agency's first and third exceptions. See, e.g., United States Dep't of the Air Force, Oklahoma Air Logistics Center, Tinker AFB, Okla., 58 FLRA 760, 762 (2003); United States Dep't of the Air Force, Warner Robins Air Logistics Center, Robins AFB, Ga., 56 FLRA 498, 502 (2000).
B. The Agency's Second Exception Does Not Establish that the Award is Contrary to Law
Because the Agency claims that the award is contrary to law, the Authority reviews the Agency's exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Under long-standing precedent, the Authority has held that "where official time authorized by the provisions of a collective bargaining agreement is wrongfully denied and the representational functions are performed on nonduty time, [§] 7131(d) entitles the aggrieved employee to be paid at the appropriate straight-time rates for the amount of time that should have been official time." United States Dep't of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Mass., 47 FLRA 1314, 1322 (1993) (Northeastern Region). More particularly, the Authority has emphasized that the remedy for wrongful denial of official time, resulting in union representational business being performed on nonduty time, is straight-time compensation and has found deficient other remedies. See, e.g., Northeastern Region, 47 FLRA at 1323 (award of official time modified to provide for straight-time compensation); SSA, 19 FLRA 932, 933-35 (1985) (award of administrative leave modified to provide for straight-time compensation). The Authority has summarized the prerequisites of an award of straight-time compensation for wrongful denial of official time as follows: "(1) an employee requested official time to perform official time activities during the employee's regularly scheduled duty hours; (2) management wrongfully denied the request; and (3) the employee thereafter performed the official time activities on nonduty time." United States Dep't of Health and Human Services, SSA, New York Region, 52 FLRA 328, 330 (1996). The Authority has also explained that official time is "paid time" because it is time that employees would otherwise be in a duty status. See AFGE, Local 3615, 17 FLRA 955, 956 (1985).
The Arbitrator found that the Agency violated Article 2 by imposing additional requirements as preconditions to granting requests for official time and by denying such requests where those requirements were not met. Further, the Arbitrator ordered that grievants who could make a reasonable showing that they used nonduty time for Union representational activities after their requests to perform those activities on duty time were denied receive one hour of discretionary official time for each hour of official time denied, up to a maximum of 20 hours. In sum, the Arbitrator found that the Agency wrongfully denied employees' requests for official time to perform Union representational activities on duty time and afforded an equivalent amount of official time for hours spent performing those activities on nonduty time, up to 20 hours.
Contrary to the Agency's exception, the Arbitrator did not require the Agency to afford official time to grievants for performing Union representational activities on nonduty time that they would not otherwise have performed on duty time. The Arbitrator did err, however, in ordering that the grievants be granted official time, instead of straight-time compensation, for each hour of wrongfully denied official time. See Northeastern Region, 47 FLRA at 1323. Consistent with Authority practice, therefore, the remedy will be modified to provide for straight-time compensation. Id.
The Agency's exception is denied.
The Agency's first and third exceptions are dismissed. The Agency's other exception is denied. Consistent with Authority precedent, the award is modified to afford grievants, based on a reasonable showing, straight-time compensation for each hour of wrongfully denied official time that resulted in their performing Union representational activities on nonduty time.
Footnote # 1 for 59 FLRA No. 88 - Authority's Decision
ARTICLE 2. Official Time
Unless prohibited by operational requirements, the above-designated union officials in Article 1 may request to use official time, if otherwise in a duty status, for the purposes provided by this agreement. Any release to use any official time must be presented to the employee's manager first and will specify the amount and category of time needed as indicated below. All use of official time will be reported by the employee and recorded by the employee in an agency record-keeping system. A demonstration of this system will be provided to the union. The agency will provide a report to the union on a quarterly basis of the total amount of official time used.
Footnote # 2 for 59 FLRA No. 88 - Authority's Decision
We note that the Authority no longer applies the abrogation standard to determine if arbitration awards are contrary to § 7106 of the Statute. See United States Dep't of Justice, Federal Bu. of Prisons, Federal Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109 (2002) (Chairman Cabaniss and Members Armendariz and Pope concurring).