Veterans Administration Medical Center Brockton and NAGE Local R1-25 (Authority decision, April 21, 1986)

Final FLRA decision. The Authority denies an exception to an arbitration award about a union president's official time. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Brockton VA Medical Center cut its local union president's official time from full time to 15 percent because of workload demands. An arbitrator revoked the fixed limit and directed supervisors to allow reasonable time for appropriate union duties, while accounting for assigned work and emergencies. He also provided for restoring annual leave used when official time should have been granted. The Authority rejected the VA's claim that the award barred work assignments or weekend and holiday work. It held that the award preserved management's assignment rights and denied the exception.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Agency exception denied; official time and leave restoration provisions stand.
• Key point: Reasonable official time for union work can be required while preserving employees' assigned duties and management's work needs.

Full text (FLRA public release)

[ v21 p388 ]

21:0388(50)AR

The decision of the Authority follows:

21 FLRA No. 50

VETERANS ADMINISTRATION MEDICAL
CENTER, BROCKTON, MASSACHUSETTS
Activity

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-25
Union

Case No. 0-AR-990

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Martin Lubow filed by the Veterans Administration (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The dispute before the Arbitrator arose when the Activity notified the local union president, the grievant, that official time for his representational activities was to be reduced from 100 percent to 15 percent because of workload demands. The grievant was instructed to return to his duties as a housekeeping aid for 85 percent of his work time. The Arbitrator identified the basic issue in the dispute as what was a reasonable amount of official time under the parties' collective bargaining agreement for the union president to carry out appropriate representational activities.

The Arbitrator issued a nine paragraph award in the matter. In paragraph 1, the Arbitrator determined that under the parties' national and local supplemental collective bargaining agreements the Activity was required to provide union officers with a reasonable amount of official time to enable them to carry out appropriate representational activities while not neglecting their responsibilities as employees to their assigned departments. In paragraphs 4, 5 and 6, here in dispute, the Arbitrator essentially provided as follows:

4. The supervisors shall grant sufficient (official time) to
   the grievant and other union officers to perform appropriate union work for reasonable periods of time, provided there is no work emergency . . . .

5. The decision to impose a 15% limitation of (official time)
   on the union president was arbitrary, capricious, discriminatory, retaliatory and unreasonable. It is revoked. While not granting 100% of official time, 50%, or 80%, I am holding that if the union president's list of anticipated representational duties and time required is 40 hours or more for a given time and if the matters listed are appropriate and the times required are reasonable, that he be granted such (official) time . . . not to exceed 40 hours a week. However, each week should stand on its own. If an anticipated event is cancelled, it shall be the union representative's responsibility to bring that to the attention of his supervisor and to make himself available for his regular duties. The VA may monitor the union official's duties by requiring a log after the fact of how time was actually spent. If a pattern of abuse is found, the VA would then not be acting arbitrarily to take that into account in considering future requests for (official time). If the parties differ as to what is "appropriate" to work on or what is a "reasonable" amount of time to perform the task, they should negotiate such matters in good faith.

6. For each day of annual leave that (the grievant) can prove
   he spent a full day performing appropriate union work for reasonable periods of time, or part thereof, he shall be provided a substitute day, or part thereof, of annual leave. On the other hand, I see no reason why the grievant should not take a turn at weekend and holiday work, though I think it would impede his effectiveness as union president to put him into the normal shift rotation. The parties are directed to negotiate the details of such an arrangement.

III. ECXEPTION

As its exception, the Agency contends that the paragraphs 4, 5, and 6 of the award are deficient because they contravene management's right under section 7106(a)(2)(B) of the Statute to assign work. In support of its exception, the Agency argues that the disputed paragraphs are deficient because they prohibit the assignment of work to union officials engaged in representational activities except in emergencies and also prohibit the assignment of work to the union president on weekends and holidays except in emergencies. The Agency further argues that paragraph 6 of the award is also deficient because, by requiring the cancellation of annual leave taken by the union president, the award imposes a retroactive prohibition on management's right to assign work.

IV. ANALYSIS AND CONCLUSIONS

The Authority finds that the Agency has misconstrued the Arbitrator's award. In paragraph 1 of the award, the Arbitrator expressly provides that Union officials are to receive only a reasonable amount of official time to carry out appropriate union activities, while not neglecting their assigned duties. Additionally, in paragraph 4, the Arbitrator only requires that supervisors grant "sufficient" time to enable union officers to carry out appropriate activities and then only if there is no work emergency. Further, in paragraph 5 of the award, the Arbitrator again only provides for granting reasonable amounts of official time for appropriate representational activities, with any differences as to what is "reasonable" and "appropriate" subject to negotiation by the parties. Moreover, contrary to the Agency's second contention, the Arbitrator in paragraph 6 of the award clearly states that there is no reason why the grievant should not be assigned weekend and holiday work, even though, in the Arbitrator's view, it might impede his effectiveness as union president. Thus, the Authority finds, contrary to the Agency's assertions, that the Arbitrator's award does not in any way improperly interfere with management's right to assign work. American Federation of Government Employees, AFL-CIO, New York-New Jersey Council of District Office Locals, Social Security Administration and Department of Health and Human Services, Social Security Administration District Office Operations, 7 FLRA 413 (1981). Furthermore with regard to paragraph 6 of the award, the Authority finds that the recrediting of annual leave taken for periods when official time should have been granted and was improperly denied is not deficient. See, e.g., American Federation of Government Employees, Local 1395 and Department of Health and Human Services, Social Security Administration, 10 FLRA 18 (1982). The Authority therefore concludes that the Agency has failed to establish that the Arbitrator's award is deficient as alleged.

V. DECISION

Accordingly, for the above reasons, the Agency's exception is denied.

Issued, Washington, D.C., April 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY