U.S. Small Business Administration and American Federation of Government Employees, Local 2532 (Authority decision, November 23, 1987)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award requiring notice and bargaining over changes to union official time practices. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

The president of AFGE Local 2532 sought full official time for union duties, citing the treatment of his predecessor. An arbitrator found no automatic right to 100 percent official time, but held that the Small Business Administration could not unilaterally change its established approval practices. The arbitrator required notice and good faith bargaining and allowed full time only if appropriate union work justified it. The agency argued that this restricted its workload decisions and conflicted with the master agreement. The Authority found the award consistent with law and the agreement and denied the agency's exceptions.

Decision snapshot

• Authority: Official time under 5 U.S.C. § 7131(d) and arbitration review under § 7122(a).
• Outcome: Agency's exceptions denied; notice and bargaining requirements upheld.
• Key point: The agency could reevaluate official time but had to bargain before changing an established practice.

Full text (FLRA public release)

[ 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