[ v30 p75 ]
30:0075(14)AR
The decision of the Authority follows:
30 FLRA NO. 14
30 FLRA 75
23 NOV 1987
U.S. SMALL BUSINESS ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532
Case No. 0-AR-1402
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the
award of Arbitrator Ellen M. Bussey filed by the Small Business
Administration (the Agency) under section 7122(a) of the Federal
Service Labor - Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. For the
following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievance in this case concerned a request by the Local
Union President for 100 percent official time which was denied by
the Agency. The grievant was elected President of American
Federation of Government Employees (AFGE), Local 2532 in October
1986. At the same time, he became Vice President of Council 228
of the National Council of Small Business Administration (SBA)
Locals. On October 3, 1986, the grievant notified the Agency's
Director of Personnel, by memorandum, that he would be on 100
percent official time status, effective immediately and "stated
that it was his understanding that he would not be required to
sign in and out each day" as a participant in the Agency's
flexitime program. Arbitrator's Award at 5. The grievant cited
past practice and his representational responsibilities as
justification for the 100 percent official time.
The Director of Personnel responded the Union President's
memorandum on October 6 and instructed him to "report to
his assigned duty station at the start of his regular duty hours
each day, to obtain prior approval for all official time as
'reasonable and necessary' in accordance with Article 11, Section
2 of the Agreement, and pointed out that the Agency considered
100 percent official time excessive." Arbitrator's Award at 6. On
October 27, the grievant requested formal negotiations on the 100
percent official time and flexitime issues. The Agency rejected
the request on October 29. The Union grieved the Agency's refusal
to grant 100 percent official time and its refusal to waive the
requirement that the grievant sign in and out each day. After
Step 2 of the grievance procedure, the matter was submitted to
arbitration.
The issue before the Arbitrator was whether the Agency
violated section 7131(d) of the Statute and the parties'
collective bargaining agreement by not granting the grievant up
to 100 percent official time whenever the Union considered it
reasonable and necessary.
The Arbitrator held that it was not within the Agency's
discretion to decide which union grievances have a reasonable
chance of success and should, therefore, be developed on official
time. The Arbitrator also held that the Union President did not
have the authority to determine, as he did in his letter to the
Director of Personnel, that his absence from his assigned duty
station would not affect the Agency's operations. The Arbitrator
determined that there was no requirement that the Union
President be automatically granted 100 percent official time. The
Arbitrator noted, however, that the previous President of AFGE
Local 2532 was on 100 percent official time with minor
exceptions. Further, the Arbitrator stated that the evidence
showed that the previous president did request advance permission
to take official time, but was not required to adhere to the
detailed justification procedures outlined in the parties'
agreement. The Arbitrator stated that nothing in the record
indicated that the grievant knew or should have known, when he
was elected as Union President, that the official time conditions
which applied to the outgoing president would not apply to him,
that is, that management would not equate the agreement
provisions of "reasonable and necessary" with 100 percent
official time as it had in the past or that management would
apply more stringent scrutiny to his request for official time.
The Arbitrator found that the Agency's assertions that the
previous Union President had abused official time did not justify
its unilateral change in the established procedure for requesting
and granting official time. The Arbitrator concluded
that the Agency has a right to reevaluate its policy concerning
official time with respect to quantity and approval, but the
Agency could not unilaterally decide that "reasonable and
necessary" official time means 100 percent in 1985 and only 40
percent in 1987. Arbitrator's Award at 15. The Arbitrator held
that the grievant in this case is entitled to 100 percent
official time only if he can document that appropriate Union
business requires 100 percent of his workweek. Id. at 14. The
Arbitrator ruled that the Agency must formally notify the Union
of the contemplated changes and negotiate with the Union, as
requested, concerning the proposed changes in the procedure for
requesting and granting official time. The Arbitrator noted
further that the parties' agreement provides for special official
time for officers of the National Council of SBA Locals and that
since the grievant became an officer of the council his union
responsibilities had increased over those of previous presidents
of the Local.
As her award, the Arbitrator held (Award at 16):
The President of Local 2532 is not automatically entitled to
100% official time by Law or Agreement. The Agency did grant the
previous Union President 100% official time for some years,
however, and cannot change such an established practice, or the
procedures required for obtaining official time approval,
unilaterally and arbitrarily. It must formally put the Union on
notice and negotiate both issues in good faith, allowing (the
grievant) sufficient time to enable him to carry out appropriate
Union activities in accordance with the findings.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award is contrary
to law in several respects. First, the Agency argues that the
award is contrary to section 7131(d) of the Statute and the
parties' Master Agreement because it prevents the Agency from
considering its work load needs in granting official time.
Secondly, the Agency argues that the award is contrary to law
because it prevents the Agency from correcting a past error
regarding the amount of official time granted presidents of the
Union Local and the process by which requests for official time
are granted. Finally, the Agency asserts that the award is
contrary to the parties'] Master Agreement because it
orders the Agency to negotiate a national policy on the local
level instead of with the National Council of Locals.
B. Union's Opposition
The Union contends that the Arbitrator's award is fully
consistent with the letter and the spirit of section 7131(d). The
Union also argues that the award is consistent with the terms of
the parties' Master Agreement. The Union maintains further that
the Agency's arguments that the award precludes it from
correcting a past error and requires it to negotiate with the
Union in violation of the Master Agreement provide no basis for
review and should therefore be rejected.
IV. Discussion
We conclude that the Arbitrator's award is consistent with
law. We disagree with the Agency's argument that the award
requires a grant of official time without regard to the Agency's
needs and work load requirements. The Arbitrator specifically
stated that "(r)egardless of the percent of official time to
which the employee is entitled, the granting of such time affects
an agency's ability to assign work and, though the Agency is
compelled to make such adjustments, it has a right to expect
Union cooperation as well as the presence of essential people in
an emergency., Arbitrator's Award at 13. The Arbitrator
determined that neither law nor the parties' agreement dictated a
fixed guarantee of official time for the Union President,
although a guarantee of a fixed amount of time could have been
negotiated. The Arbitrator held that "(t)he grievant (in this
case) is entitled to 100% official time only if he can document
that appropriate Union business requires 100% of his work week.*
Id. at 14.
We have held that consistent with the Statute, agencies and
labor organizations may negotiate amounts of official time which
are reasonable, necessary, and in the public interest. National
Archives and Records Administration and American Federation of
Government Employees, Council 236, Local 2928, 24 FLRA 245
(1986). The Arbitrator's award in this case requires the parties
to meet and determine, consistent with their respective interests
and rights guaranteed under the Statute, the amount of official
time which is reasonable, necessary, and in the public interest.
The award does not dictate any action, procedure, or particular
grant of official time which is contrary to the Statute or the
public interest. Further, the Agency has not demonstrated that
the award conflicts with the cited provisions of Article
11 of the parties' Master Agreement (which, among other things,
provide the Agency with discretion to approve requests for
official time). The requirement that the parties negotiate to
determine (1) a reasonable and necessary amount of official time
and (2) the procedures for requesting and granting official time,
does not remove the Agency's discretion to approve official time
(which may be exercised by agreement) nor does it prevent the
Agency and the Union from adhering to the requirements and
procedures of the parties' Master Agreement as they relate to
requesting and approving official time.
We also find that the award does not prevent the Agency from
correcting past errors regarding the amount of official time
granted presidents of the Union Local and the process by which
requests for official time are granted. The Arbitrator found that
the Agency had established a past practice as to the amount of
and the method of requesting official time for the President of
the Union Local. Arbitrator's Award at 14-15. The Arbitrator
held, however, that the Agency has a right to reevaluate the
granting of official time with respect to quantity and approval
procedures, but it could not unilaterally decide to alter a
policy which had become an established past practice without
formally notifying the Union and negotiating the proposed
changes. The Arbitrator's holding is consistent with the
Authority's decision in U.S. Army Corps of Engineers, Kansas City
District and Local 29, National Federation of Federal Employees,
22 FLRA 87 (1986), where it was found that an arbitrator's award
withdrawing management advisories and reinstating the established
past practices regarding the procedures for granting official
time until completion of negotiations was not inconsistent with
law. The Authority held in that case that the Arbitrator's
determination that the Agency was required to bargain concerning
the change in established past practice was not inconsistent with
law. See also Veterans Administration. Veterans Administration
Medical Center, Muskogee, Oklahoma, 19 FLRA 1054, 1057-58 (1985)
(unilateral change in past practice allowing union officers to
use official time at their discretion violated the Statute).
Therefore, we find that the Agency in this case has not
established that the order of the Arbitrator, requiring it to
bargain over the proposed change in an established past practice,
is contrary to law.
Finally, we reject the Agency's argument that the award is
contrary to the parties' Master Agreement because it orders the
Agency to negotiate a national policy on the local level
instead of with the National Council of Locals. The award
requires the Agency to "formally put the Union on notice and
negotiate . . . in good faith." Arbitrator's Award at 16. The
award does not require negotiation at any particular level nor
does it prevent the parties from bar-gaining consistent with the
requirements of the parties' master and local agreements.
In sum, the Agency has not established that the Arbitrator's
award is deficient. Rather, the Agency's exceptions amount to
mere disagreement with the Arbitrator's reasoning and conclusions
and provide no basis for finding the award deficient. See U.S.
Army Armor Center and Ft. Knox and American Federation of
Government Employees, Local No. 2302, 28 FLRA 753 (1987).
V. Decision
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., November 23, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY