Department of the Navy, Naval Weapons Station, Concord and American Federation of Government Employees, Local 1931 (Authority decision, April 9, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of a procedural unfair labor practice dismissal in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

AFGE Local 1931 complained that a Navy weapons station capped its president's official time for union work at about 25 percent of the workweek and charged annual leave for time above that limit. The judge and Assistant Secretary treated the dispute as one about the meaning of the parties' agreement, which allowed a reasonable amount of official time, and dismissed the unfair labor practice complaints. They found no clear unilateral breach that belonged in that process. The union sought review, but the Authority found no major policy issue or arbitrary ruling and denied its petition. The agreement's grievance and arbitration process remained the route for the contract dispute.

Decision snapshot

• Authority: Executive Order 11491, § 19(a)(1), (2), (6); 5 U.S.C. § 7135(b).
• Outcome: Review denied; procedural dismissal of complaints stands.
• Key point: Differing plausible readings of the official time clause belonged in contract grievance and arbitration procedures.

Full text (FLRA public release)

[ v01 p133 ]

01:0133(13)CA

The decision of the Authority follows:

1 FLRA No. 13
APRIL 9, 1979

MR. WILFRED J. SCOTT
PRESIDENT, LOCAL 1931
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
P.O. BOX 5548
CONCORD, CALIFORNIA 94524

RE: DEPARTMENT OF THE NAVY, NAVAL WEAPONS
STATION, CONCORD, CALIFORNIA, A/SLMR No.
1115, FLRC No. 78A-137

DEAR MR. SCOTT:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.

IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1931, AFL-CIO (THE UNION) FILED TWO UNFAIR LABOR PRACTICE COMPLAINTS
AGAINST THE DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD,
CALIFORNIA (THE ACTIVITY). THE COMPLAINTS ALLEGED, IN EFFECT, THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO
CONSULT, CONFER OR NEGOTIATE BEFORE ISSUING A LETTER WHICH UNILATERALLY
ALTERED A PAST PRACTICE WITH RESPECT TO THE AMOUNT OF OFFICIAL TIME
PERMITTED THE UNION'S PRESIDENT IN THE DISCHARGE OF HIS REPRESENTATIONAL
RESPONSIBILITIES. IT WAS FURTHER ALLEGED THAT THE AGENCY VIOLATED
SECTION 19(A)(1) AND (2) OF THE ORDER BY CHARGING THE UNION'S PRESIDENT
WITH ANNUAL LEAVE FOR PERIODS OF TIME USED IN EXCESS OF A SPECIFIED
LIMITATION.

AS FOUND BY THE ASSISTANT SECRETARY, THE UNION AND THE ACTIVITY WERE
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDED THAT THE
UNION PRESIDENT COULD USE A REASONABLE AMOUNT OF OFFICIAL TIME TO
CONDUCT UNION-MANAGEMENT BUSINESS. /1/ DURING THE TERM OF THAT
AGREEMENT, THE ACTIVITY SENT A LETTER TO THE UNION PRESIDENT, AN
EMPLOYEE AT THE ACTIVITY, STATING THAT "(I)T HAS BEEN PAST PRACTICE . .
. TO ALLOW THE UNION PRESIDENT APPROXIMATELY 25% OF HIS TIME AS
'REASONABLE' UNDER THE PROVISIONS OF THE BASIC AGREEMENT FOR CONDUCT OF
AUTHORIZED UNION ACTIVITIES" AND REQUESTING THAT THE USE OF OFFICIAL
TIME BE LIMITED TO 25% OF THE UNION PRESIDENT'S WORKWEEK THEREAFTER. IT
WAS FURTHER FOUND THAT THE ACTIVITY SUBSEQUENTLY CHARGED THE UNION
PRESIDENT ANNUAL LEAVE FOR TIME SPENT ON UNION-MANAGEMENT BUSINESS IN
EXCESS OF 25% OFFICIAL TIME.

THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ALJ'S CONCLUSION,
FOUND THAT DISMISSAL OF THE UNION'S COMPLAINTS WAS WARRANTED. IN SO
CONCLUDING, HE STATED:

ESSENTIALLY, WHAT IS INVOLVED HEREIN ARE THE CONFLICTING CONTENTIONS
OF THE PARTIES AS TO

THE PROPER INTERPRETATION OF THE PROVISION OF THEIR NEGOTIATED
AGREEMENT ESTABLISHING

"REASONABLE" OFFICIAL TIME FOR THE (UNION'S) PRESIDENT OR HIS DULY
AUTHORIZED REPRESENTATIVE

TO ENGAGE IN REPRESENTATIONAL ACTIVITIES. IN THIS CONTEXT, I FIND
THAT A RESOLUTION OF THE

ISSUES PRESENTED HEREIN REQUIRES AN INTERPRETATION OF THE PARTIES'
NEGOTIATED AGREEMENT IN

RELATION TO THE USE OF OFFICIAL TIME.

IT HAS BEEN PREVIOUSLY HELD THAT WHERE A MATTER INVOLVES DIFFERING
AND ARGUABLE

INTERPRETATIONS OF A NEGOTIATED AGREEMENT, AS OPPOSED TO A CLEAR,
UNILATERAL BREACH OF THE

AGREEMENT, SUCH A MATTER IS A PROPER SUBJECT FOR RESOLUTION UNDER A
CONTRACTUAL

GRIEVANCE-ARBITRATION PROCEDURE, RATHER THAN THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES OF

THE EXECUTIVE ORDER. /2/ ACCORDINGLY, AS I FIND THE DISPUTE HEREIN
TO BE A MATTER OF

CONTRACT INTERPRETATION, AND AS, IN MY VIEW, THE (ACTIVITY'S) CONDUCT
DID NOT CONSTITUTE A

CLEAR, UNILATERAL BREACH OF THE AGREEMENT, I SHALL ORDER THAT THE
COMPLAINTS HEREIN BE

DISMISSED.

IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED, IN ESSENCE, THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT
IT DOES NOT ADDRESS THE ISSUES RAISED IN THE COMPLAINTS. IN THIS
REGARD, IT IS ASSERTED THAT THE ISSUES IN THIS CASE ARE THE AGENCY'S
IMPLEMENTATION OF A UNILATERAL CHANGE IN PAST PRACTICES BY IMPOSING THE
25% LIMITATION ON THE UNION PRESIDENT'S USE OF OFFICIAL TIME FOR
LABOR-MANAGEMENT RELATIONS AND BY ASSESSING ANNUAL LEAVE FOR TIME USED
IN EXCESS OF THAT AMOUNT, AS WELL AS THE POSSIBLE DISCRIMINATORY NATURE
OF THAT RESTRICTION IF IT WERE IMPLEMENTED SOLELY AGAINST THE UNION
PRESIDENT. FINALLY, IT IS CONTENDED THAT THE ALJ AND THE ASSISTANT
SECRETARY WERE BIASED, IN THAT THEIR DECISIONS WERE BASED ON FACTS OTHER
THAN THOSE PRESENTED AT THE HEARING.

IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET
THE REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES
WHICH INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.
THUS, IT DOES NOT APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY
WAS ARBITRARY AND CAPRICIOUS AND NEITHER DOES IT APPEAR THAT HIS
DECISION PRESENTS A MAJOR POLICY ISSUE.

SPECIFICALLY, NO BASIS FOR AUTHORITY REVIEW IS PRESENTED WITH RESPECT
TO THE ALLEGATION THAT THE ASSISTANT SECRETARY DID NOT ADDRESS THE
ISSUES RAISED IN THE UNION'S COMPLAINTS. THUS, SUCH CONTENTIONS
CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
FINDING THAT THE DISPUTE HEREIN ESSENTIALLY INVOLVES AN INTERPRETATION
OF THE PARTIES' NEGOTIATED AGREEMENT AND THAT WHERE, AS HERE, AN ALLEGED
VIOLATION OF A NEGOTIATED AGREEMENT CONCERNS DIFFERING AND ARGUABLE
INTERPRETATIONS OF THE AGREEMENT, THE MATTER IS TO BE RESOLVED UNDER THE
PARTIES' CONTRACTUAL GRIEVANCE AND ARBITRATION MACHINERY RATHER THAN AS
AN UNFAIR LABOR PRACTICE. /3/ FURTHER, THE APPEAL CONTAINS NO BASIS TO
SUPPORT THE CONTENTION OF BIAS IN THE CIRCUMSTANCES OF THIS CASE.

ACCORDINGLY, AS THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND SINCE A MAJOR POLICY ISSUE IS NOT
PRESENTED, THE APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET
FORTH IN SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH
INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE. ACCORDINGLY, THE PETITION FOR REVIEW IS HEREBY DENIED. /4/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: W. D. WILSON

NAVY

/1/ AS FOUND BY THE ASSISTANT SECRETARY, ARTICLE VI (UNION
REPRESENTATION AND CONDUCT OF UNION BUSINESS) PROVIDED, IN PERTINENT
PART, AS FOLLOWS:

SECTION 7. TIME OFF DURING THE REGULAR WORKING HOURS, AS MAY BE
NECESSARY, WILL BE

AUTHORIZED TO PERMIT THE RECOGNIZED UNION OFFICERS AND STEWARDS TO
PROPERLY AND EXPEDITIOUSLY

DISCUSS WITH EMPLOYEES GRIEVANCES AND APPROPRIATE MATTERS DIRECTLY
RELATED TO WORK SITUATIONS,

AND FOR ATTENDANCE AT MEETINGS WITH THE EMPLOYER. THE UNION AGREES
THAT IT WILL GUARD AGAINST

THE USE OF EXCESSIVE TIME WHENEVER BUSINESS OF ANY NATURE IS
TRANSACTED DURING WORKING HOURS,

AND THAT ONLY THAT AMOUNT OF TIME NECESSARY TO BRING ABOUT A PROMPT
DISPOSITION OF THE MATTER

WILL BE UTILIZED.

SECTION 11. THE UNION REPRESENTATIVE (PRESIDENT OF HIS DULY
AUTHORIZED REPRESENTATIVE)

WILL BE ALLOWED A REASONABLE TIME DURING REGULAR WORKING HOURS TO
PROPERLY PURSUE HIS OFFICIAL

LIAISON DUTIES WITH THE EMPLOYER AND TO PROVIDE APPROPRIATE
REPRESENTATION FOR EMPLOYEES.

THE ASSISTANT SECRETARY FURTHER FOUND THAT THE PARTIES' AGREEMENT
CONTAINED A GRIEVANCE PROCEDURE AS THE EXCLUSIVE METHOD OF SETTLING
GRIEVANCES OVER THE INTERPRETATION AND APPLICATION OF THE AGREEMENT.

/2/ SEE NORFOLK NAVAL SHIPYARD, 6 A/SLMR 486, A/SLMR 708(1976);
DEPARTMENT OF THE ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, 6
A/SLMR 127, A/SLMR NO. 624(1976); FEDERAL AVIATION ADMINISTRATION,
MUSKEGON AIR TRAFFIC CONTROL TOWER, 5 A/SLMR 457, A/SLMR NO. 534(1975);
AND GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS SERVICE,
CHICAGO FIELD OFFICES, 5 A/SLMR 424, A/SLMR NO. 528(1975).

/3/ IN THIS REGARD, SEE THE COUNCIL'S STATEMENTS IN REQUESTS FOR
INTERPRETATIONS AND POLICY STATEMENTS, 3 FLRC 874, 878-879 (FLRC 75P-1
(MAY 23, 1975), REPORT NO. 90); AND THE COUNCIL'S DECISION IN
DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG AIR
FORCE BASE, CALIFORNIA, A/SLMR 485, 4 FLRC 586, 592 (FLRC 75A-25 (NOV.
19, 1976), REPORT NO. 118), TO THE EFFECT THAT WHILE NOTHING IN THE
ORDER PROHIBITS AN AGENCY AND A LABOR ORGANIZATION FROM NEGOTIATING
PROVISIONS FOR THE USE OF OFFICIAL TIME BY UNION REPRESENTATIVES FOR
CONTRACT ADMINISTRATION AND OTHER REPRESENTATIONAL ACTIVITIES, THE
NEGOTIATION OF SUCH PROVISIONS INTO AN AGREEMENT DOES NOT THEREBY
CONVERT A CONTRACTUAL RIGHT INTO A RIGHT GUARANTEED BY THE ORDER AND
REMEDIABLE UNDER SECTION 19 OF THE ORDER.

/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.