72 FLRA No. 32

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 17

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

(Agency)

 

0‑AR‑5641

 

_____

 

DECISION

 

April 9, 2021

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Member Abbott concurring)

 

I.       Statement of the Case

          Arbitrator Blanca E. Torres found that the Agency did not violate the parties’ collective-bargaining agreement or § 7131 of the Federal Service Labor‑Management Relations Statute (the Statute) by limiting official time to a negotiated contractual allocation.  The Union filed exceptions on nonfact, essence, and contrary-to-law grounds.  Because the Union does not demonstrate that the award is deficient on any of these grounds, we deny the exceptions.

II.     Background and Arbitrator’s Award

          Article 48, Section 10(A) of the parties’ agreement (Section 10(A)) provides that every local union will receive an allotment of official time equal to 4.25 hours per year for each bargaining unit position represented by that local union.  Article 48, Section 1(B) of the agreement provides that union advocates may use the allotted official time to perform statutory representational activities specified in § 7131 of the Statute, such as handling grievances and complaints and other representational functions, and engaging in appropriate lobbying functions.  And Article 48, Section 10(D) (Section 10(D)) provides that “[t]he minimum amounts of official time described in [Section 10(A)] are not intended to limit the amount of official time that can be negotiated by the parties locally.”[1] 

         In January 2019, the Agency informed the Union that “official time granted for travel and attendance at appropriate training conferences will be deducted from the total allocation [of hours] provided in Article 48 of the [a]greement” (the January notice).[2]  The Union filed a grievance alleging that the Agency violated a past practice of granting Union advocates official time beyond the contractual allocation for those purposes.[3]  The grievance proceeded to arbitration.

         The Arbitrator framed the issue as whether the Agency violated Article 48 and § 7131 of the Statute “by limiting official time to the allocated formula of 4.25 hours per bargaining unit employee, exclusive of the past practice of allowing additional official time for training, lobbying, and representational functions by union advocates?”[4]

         As an initial matter, the Arbitrator found that the parties agreed that if a Union representative wishes to perform an appropriate representational function that lasts longer than their allotted official time, the representative must request additional official time and have the time approved by the immediate supervisor.  She noted that, in 2018, the Agency implemented an electronic system for tracking time and attendance, including official‑time requests, and that before this implementation “there was a lack of systematic tracking of official time.”[5] 

        Regarding the amount of official time available to the Union, the Arbitrator found that, although Section 10(D) allows the parties to negotiate an increase in official time, they had not done so.  She noted that “the Union found it unnecessary to bargain” over this matter because it assumed that a past practice of granting official time in excess of the contractual allocation was already established.[6]  However, the Arbitrator found that the record contained “no reports, calculations, tracking methods, notes or any other conclusive evidence, by either party,” that would either favor or disfavor the existence of a past practice.[7]  Specifically, she found that a past practice may only be formed where management knows of, and acquiesces to, the practice.  Finding insufficient evidence of the Agency’s acquiescence, she concluded that the Union failed to satisfy its burden of proof that a past practice existed.

        The Arbitrator, therefore, denied the Union’s grievance.

        She also found that, “if the alleged practice existed, it would be in violation of the express terms of the [parties’ a]greement.”[8]  On this point, the Arbitrator noted that Article 48 “contains clear and unambiguous terms regarding the 4.25 formula and the parties’ right to bargain over the increase of official time.”[9] 

         On June 9, 2020, the Union filed exceptions to the award.  The Agency did not file an opposition to the Union’s exceptions.

III.   Analysis and Conclusions

         A.      The award is not based on nonfacts.

          The Union argues that the award is based on nonfacts because:  (1) the parties stipulated that a past practice existed,[10] (2) the Agency testimony on which the Arbitrator relied was hearsay instead of personal knowledge,[11] and (3) the Arbitrator’s finding that the Agency did not knowingly acquiesce in the alleged past practice is not based on any facts in the record.[12]  To establish that an award is based on a nonfact, the excepting party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.[13]  The Authority has held that mere disagreements with an arbitrator’s evaluation of evidence, including the weight to be accorded such evidence, provides no basis for finding that an award is based on a nonfact.[14]

         To support its first nonfact claim, the Union quotes from the award that “[t]he parties stipulate that from 2011 to 2018, stewards and officers of [the Union] have taken, without denial, official time in excess of the allotment [provided under the 4.25 formula].”[15]  However, the referenced statement is not a stipulation of a past practice.  Rather, as the Arbitrator found, it merely recognizes that the Agency did not dispute that its supervisors had occasionally approved additional official time to Union advocates beyond the contractual allocation.[16]  More precisely, the Arbitrator found that the stipulation did not establish “whether management knowingly acquiesced to this practice” because the parties’ testimonies were in equipoise.[17]  The Union’s disagreement with the Arbitrator’s finding and evaluation of the evidence does not establish that his finding is clearly erroneous.[18] 

         In support of its second claim, the Union argues that the Arbitrator should not have relied on the testimony of an Agency labor relations specialist (the specialist) because the specialist’s knowledge and testimony concerning the alleged past practice was based on hearsay.[19]  However, this argument merely challenges the Arbitrator’s evaluation of the evidence and, therefore, does not demonstrate that the award is based on a nonfact.[20]

        The Union also claims that the Arbitrator erroneously found the specialist had been in her position since 2014.[21]  But because the Arbitrator did not base her conclusion regarding the past practice on the length of time the specialist had been in her position, the Union’s argument also does not demonstrate that the award was based on a nonfact.[22] 

        Finally, the Union argues that the Arbitrator’s finding that the Agency did not knowingly acquiesce in the alleged past practice is not based on any facts in the record.[23]  However, this argument does not provide a basis for finding the award is based on a nonfact.[24] 

         Accordingly, we deny the Union’s nonfact exception.

        B.        The award does not fail to draw its essence from the parties’ agreement.

        The Union argues the award fails to draw it essence from the parties’ agreement because the Arbitrator found that “even if a past practice of granting official time in excess of the contractual allotment occurred, it would be in violation of the express terms of the parties’ agreement.”[25]  To establish that an award fails to draw its essence from an agreement, the appealing party must establish that the award:  (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective‑bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.[26]

        Here, the Arbitrator found that the Union had not established that any past practice existed.[27]  The Union’s essence argument challenges the Arbitrator’s hypothetical statement, which is mere dicta, because it was not essential to her resolution of the grievance.[28]  As such, the Union’s argument does not demonstrate how the award is irrational, unfounded, implausible, or in manifest disregard of the agreement.[29]  Consequently, we deny this exception.

        C.      The award is not contrary to law.

        The Union argues that the award is contrary to law because the Arbitrator failed to find that the Agency violated § 7116(a)(1) and (5) of the Statute when it changed a clearly established past practice without giving the Union notice and opportunity to bargain.[30]  More specifically, the Union maintains that the Agency violated the Statute because bargaining over “[t]he amount of official time available to union representatives is a mandatory subject of bargaining.”[31]

        When an exception involves an award’s consistency with law, rule, or regulation, the Authority reviews any question of law raised by the exception and the award de novo.[32]  In applying the standard of de novo review, the Authority assesses whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.[33]  In making that assessment, the Authority defers to the arbitrator’s underlying factual findings, unless the appealing party establishes that those findings are nonfacts.[34]

        As previously discussed, the Arbitrator found that the Union did not establish that a past practice existed and the Union has failed to demonstrate that the Arbitrator’s findings are nonfacts.  Therefore, we defer to her finding.[35]  And based on this finding, the Union did not establish that there was a change over which the Agency was required to bargain.  Thus, the Union’s argument does not demonstrate that the award is contrary to law, and we deny this exception.

IV.  Order

       We deny the Union’s exceptions.

 

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