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Title: Department of Veteran Affairs and American
Federation of Government Employees, Local 1557
Date: May 29, 2001
Arbitrator: Thomas L. Watkins
Citation: 2001 NAC 125
the matter of arbitration between:
Department of Veteran Affairs
Denver Regional Office
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Local 1557
OFFICIAL DUTY TIME
THOMAS L. WATKINS, Arbitrator
FOR THE EMPLOYER:
D. Smart, HR Management Specialist; Witness
Samuel D. Jarvis, Assistant Director; Witness
Jennifer Kavanagh, Management Analyst
B. J. Scott, Staff Assistant
Robert Shearin, Service Center Manager; Witness
Cathy Smith, Director; Witness
R. Little, AFGE National Representative
John R. Isaac, Local Representative
Michael Pierson, President, Local 1557; Witness
Jason Rasmussen, Vice President, Local 1557; Witness
Charles R. Smallwood, Jr., Union Assistant; Witness
THIS PROCEEDING in arbitration was authorized by Article 40 of the 1997
Agreement between the parties. The
Arbitrator was selected by the parties through the procedures of the Federal
Mediation and Conciliation Service.
HEARING HELD: May 8-9, 2001 in the
offices of the Denver Regional Office, Department of Veterans Affairs, 155 Van
Gordon Street, Lakewood, Colorado.
ALL WITNESSES provided affirmations or sworn statements.
INTRODUCTION AND ISSUE
The case presented herein for decision involves a
straightforward question of contract interpretation.
On separate occasions in late March 2000, Local 1557 President Michael
Pierson and Vice President Jason Rasmussen described their activities as “communications”
when they were working on backlogged but normal representational and research
duties. They indicated a coding of
“1.F. Other/LMR” [Un. Exs. 1, 9, 10] under the Supplemental Agreement [Jt.
Ex. 2]. These codings were
regularly denied by management, resulting in the two men ultimately using annual
leave to complete the work.
Specifically, on March 29, 30 and 31, 2000 Pierson sought 26
hours of partnership time for representational activities. This was rejected by the Employer because these duties
involved only Union business and therefore could not be considered “partnership”
Pierson then sought to have the hours considered “official time.”
[Un. Exs. 2, 8, 11] This too
was denied because according to the Employer, the contractually-established
amount of official time for the month of March had already been exhausted.
He then requested and was granted “annual leave” for the time in
question. [Un. Exs. 3-5, 12-14]
Rasmussen’s case is similar.
He sought 8 hours of partnership time on March 23 but was denied because
he was doing representational activities; he then sought official time and was
refused because the contractual 40-hours-per-month cap had been reached; and he
then sought and was granted annual leave to perform the work.
On March 30 and 31 the situation was repeated when he worked 3 hours and
3.5 hours respectively. He was
charged with a total of 14.5 hours of annual leave while he was engaged in these
On behalf of both of them, Pierson sought to recover the lost
annual leave through informal discussions.
[Jt. Ex. 3] When this failed
to achieve a favorable result [Jt. Ex. 4], a grievance was filed on April 14,
2000. [Jt. Ex. 5]
It seeks to have all of the annual leave restored because partnership
time should have been granted in the first place; failing that, the amount of
official time should have been increased.
The grievance was routinely processed through the negotiated
procedure, denied by the Employer throughout [Jt. Exs. 6-9], and is now
stipulated to be properly before this Arbitrator for a decision on its merits. The issue to be decided is framed as follows:
the Employer violate the Master Agreement or the Supplemental Agreement by
denying the use of official or partnership time for the periods in question?
RELEVANT SECTIONS OF TITLE VII
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
SUBCHAPTER IV – ADMINISTRATIVE AND OTHER PROVISIONS
“(d) Except as provided in the preceding subsections of this
“(1) any employee representing an exclusive representative, or
“(2) in connection with
any other matter covered by this chapter, any
employee in an appropriate unit represented by an exclusive
representative, shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable, necessary, and in the
SECTIONS OF THE MASTER AGREEMENT
3 – PARTNERSHIP
1 – Purpose
Partnership involves the design, implementation, and maintenance of a
cooperative working relationship between Labor and Management through maximum
pre-decisional involvement in order to achieve common goals.
Management and Union leadership must be committed to the principles upon
which Partnership is based in order for this effort to be successful.
Section 2 – Principles
Management and Labor shall be committed to work at all appropriate levels to
establish and improve effective Partnerships which are designed to ensure a
quality work environment for employees, more efficient administration of VA
programs, and improved service to veterans.
The principles which guide this effort include:
joint agreements and making joint recommendations,
of alternative dispute resolution, interest-based problem-solving
techniques, and facilitation,
and management working together on committees . . . .
or elimination collective bargaining disputes, and
partnership successes at all levels.
Section 5 – Duty Status
While participating in Partnership
activities, all bargaining unit members will be considered on duty status and
not on official time. In the event
these activities are conducted beyond normal duty hours, members will be
compensated in accordance with applicable law.
ARTICLE 45 – OFFICIAL TIME
Section 1 – Purpose
. . . . .[O]fficial time shall be
granted in amount specified by this Agreement or otherwise negotiated for the
Handling grievances and other complaints.
Handling other representational functions, and
Appropriate lobbying functions.
Section 6 – Duty-Time Activities
For the following matters, Union
representatives will be on duty time:
All activities relating to Total Quality Improvement, and
For cases in which a Union representative is designated as the
employee’s representative, preparing or presenting appeals to the Merit System
Protection Board and handling discrimination claims under EEOC procedures.
Section 10 – Local
Each VHA local is entitled to at least one Union official with no less
than 40% official time. . . .
For locals already above the minimum amount of official time described in
Paragraph A in this Section, existing local agreements and past practices
regarding official time on the effective date of this Agreement shall continue
in full force and effect unless and until the local parties negotiate a change.
SECTIONS OF THE SUPPLEMENTAL AGREEMENT
17 – TIME AND LEAVE
Unscheduled Annual Leave Procedures.
. . . . Normally, unscheduled annual leave request will not be denied
unless approval would result in insufficient staffing . . . .
21 – OFFICIAL TIME
Section 1 - General
In accordance with 5
USC, Chapter 71, Executive Order 12871, and subject to the provisions of the
Master Agreement, both parties recognize and acknowledge the Union’s
obligation to fulfill its responsibilities to employees, Labor Management
Relations (LMR), partnership activities, and as the sole representative of
bargaining unit employees. Management recognizes Union officials require adequate and
sufficient time away from normally assigned duties and responsibilities to meet
and fulfill these responsibilities.
Official time will
be made available to designated Union officials to meet these representational
Both parties are committed to improving local labor relations and meeting
customer service goals through improved partnership activities and reduced use
of official time. [Emphasis added.]
The parties desire to
continue improvement in our LMR through partnership activities.
Where possible, the parties endeavor to reduce the need for official
time by utilizing partnership activities to form agreements.
Official time sometimes produces a relationship where formal grievances,
unfair labor practices (ULP) proceedings, or other formal action develop.
activities and other duty time include pre-decisional involvement with issues
and concerns of others (including management and/or employees), meetings with
management/supervisors, committee concerns/issues (both independently or as a
group), partnership, and many other matters addressed in the Master Agreement.
Section 2 – Official Time
For the Union to accomplish its representational responsibilities, the Union
president will be authorized up to 50% of his/her time as official time.
During the early years of this agreement, it is anticipated the
balance of the president’s time may be required for partnership related
activities. Within a three year
period, as the management/labor relationship improves through partnership
activities, the parties envision that the necessary official time would
reduce to a goal of 25% for the president.
Partnership activities may require more of the president’s time as
partnership activities increase over the life of this agreement.
Other Union representatives, such as stewards, will be provided a
combined total of up to 40 official hours per month (cumulative) to meet
responsibilities as described in Article 45, Section 1, of the Master Agreement.
Official time may not be accrued from month to month.
Other time will be provided, as necessary, upon request and approval
by the steward’s immediate supervisor to provide for any unusual
representational needs. Stewards
and representatives may utilize and are encouraged to use other duty time, as
necessary, for partnership activities. [Emphasis
C. Over the term and course of this agreement, at least at one
year intervals, the parties will meet to evaluate the progress toward this goal
and seek way to improve the process and solutions to reach or surpass the goal.
This is an appropriate subject for the Executive Partnership Council.
Section 3 – Request for and Granting of Official Time
When a Union official is called away from his or her regularly assigned
duties and responsibilities in order to perform employee-related
representational activities or partnership activities, the Union official will
request release from normal duties from his or her supervisor (written notice is
not required). . . .
Union representatives’ and employees’ requests for time away from the
job for appropriate representational activity will usually be granted.
Official time requests will be deferred only in rare instances and when
Union Activity Time Records and Reports
B. The Union president will
identify time used by identifying the following types of activities in as close
to one-hour increments as feasible. The
parties acknowledge that the President’s reports may combine related events on
a daily basis. The report will be
given to the supervisor daily. Categories
Discussions with Management
with Management Officials
(Specify, e.g. Consultation)
POSITIONS OF THE PARTIES
believes the annual leave must be restored for one simple
reason: both Pierson and Rasmussen were performing activities that are properly
coded “partnership,” an amount of time that is limitless.
In support of this position the Union contends that: (1) the only change
in the SA was a language change: the Denver office had to show that less time
was being spent away from work on official (Union) duties, so the parties merely
created a new label, “partnership,” but activities did not change;
(2) in the absence of a specific definition it should be clear that activities
such as research, consultation with members, health and safety matters,
identification of bargaining unit panel members, etc., all aid labor-management
relationships and are therefore properly within the range of “LMR” as
identified in Appendix C; (3) both parties do not have to be present to have a
‘partnering’ activity, it simply must be a common problem, and in any event,
the Employer cannot unilaterally determine what constitutes “partnership
activities;” (4) certain representational activities cannot be completed in
the official hours provided, therefore “LMR” partnership time is available
anytime official time is exhausted; and (5) no Union official should be forced
to use his personal annual leave in order to fulfill his fiduciary
For each and all of these reasons, the Union asks that the
grievance be upheld and that the Employer be directed to restore the annual
leave hours identified in the grievance.
contends that the only issue to be decided here is
whether it violated the Agreement in granting annual leave to the two grievants
when requested. Clearly it did not,
since a denial is never based upon the reason for the leave request (which is
irrelevant), but upon staffing needs. And
it would restore them only if, during the leave, the employee was called back to
work or became ill,
or if there was an administrative error. Since
none of those conditions existed, management acted properly when it granted the
annual leave, and also when refusing to restore it.
If the Union officials wished to use their annual leave for Union
business, it is none of management’s concern.
However, even if the matter arises because of alleged
improper coding, the Employer still acted in good faith and within its
authority: (1) to be a partnership activity, both the Union and
management must be involved: it is impossible to have a partnership without both
parties present, and the Union, by its own admission, was not engaged in such
activities; (2) the “1.F.” category requires specification, i.e., an
explanation as to what sort of partnering activity was occurring: the Union
wrote only “communications” which is not sufficient as an explanation, and
in any event, the communications apparently concerned e-mails or other members,
but did not in any way involve managers; (3) the Employer is within its rights
to determine whether a partnering activity occurred especially when no one from
management is present and in the absence of the required specification; (4) “representational
functions” are clearly identified as “official,” not partnership, time;
(5) the March 2000 caps for official time had earlier been reached, the
calculation of which has never been contested by the Union; and (6) the Union
could have sought relief from the caps, but it did not do so.
Therefore, the only possible and proper course of action for
the Union officials, if they needed additional time to fulfill their fiduciary
responsibilities, was to request annual leave.
When it was sought, it was properly granted.
Since the Employer at no point violated the Agreement between
the parties, the grievance must be denied.
For more than a decade prior
to 1997 the parties were engaged in a traditional labor-management relationship.
The previous Master Agreement [or “MA”; Un. Ex. 7] contained no
reference to “partnering” and the language was typical of adversarial
relationships. The Supplemental Agreement [“SA”; Un. Ex. 6] then in
effect was similar: articles on “Employer-Union Cooperation” (Art. 3),
Negotiation (Art. 4), and “Union Representation” (Art. 5) addressed
traditional matters such as providing lists of names to the Union, engaging in
joint charity work, providing copies of the Agreement to employees, defining
bargaining topics, settling grievances at the lowest possible level, assuring
official time for Union officers to handle representation matters, etc. Under those agreements, and under a former Denver
administrator, the Union president was provided 100% release time to work on
representational duties. This was
referred to as “official time.”
All of this changed in 1997 with the adoption of a new MA, a
new SA, and the presence of new management in Denver. Negotiations
for the current SA were contentious and very difficult.
The use of official time was, by consensus, the most difficult issue; and
in the end, the new documents are dramatically different from their
In general the new MA [Jt. Ex. 1] markedly shifts focus to a
more “interest based” relationship, and provides a great deal of attention
to partnership activities. The new
SA [Jt. Ex. 2] is equally shifted. It
is the language of these relevant, new agreements which must provide the
starting point for any matter in arbitration.
Specifically, under the new MA, the concept of “partnership”
was created, and those partnering activities performed were to be done on duty
time, quite distinguished from official time; partnering principles were
defined (Art. 3) as were official time activities (Art. 45), both for the first
time; and guidelines were put into place providing minimum amounts of official
time to be made available within locals. Nearly
all of this was adopted via reference in the new SA (Arts. 2 and 21; Appendix
A), negotiated in part by the new Denver director.
A number of specific changes were also made in the SA germane
to the instant case: a distinction was made between “partnership
time/activities” and “official/representational activities;” official time
was redefined and capped; and an Executive Partnership Council was created to
seek solutions and measure progress toward the goal of reducing the use of
Under this new SA, the Union president’s official time was capped at
50%, with a target of 25% after three years.
The amount of partnership time was limitless.
Through all of these efforts the parties have clearly, willingly and
specifically committed to a fundamentally different kind of relationship.
The philosophy in both is clear: become more cooperative and
less adversarial, join hands rather than raise fists, demonstrate trust rather
than hostility, view problems as common challenges and solutions as mutual gain,
and jointly discuss ways to improve mission accomplishment. Yet the testimony indicates that little has changed under the
new language. Indeed, everyone
acknowledges that the system so far has failed: insufficient partnership time is
actually being used; and the Union officials regularly exhaust the allocated
amounts of official time. To
determine how this has happened one must examine each of the Union arguments in
1. Were the language changes
made in 1997 meant to allow Union activities to remain the same, but simply be
re-labeled as “partnership” activities?
The “labeling issue” goes to the core of this dispute.
The Union states that nothing has been changed under the new agreements.
Pierson testified that as far as he was concerned, he was still on Union
business 100% of the time, but under the new SA half of it was to be categorized
as “partnership time.” The
activities he performed before he must still perform, except that they may now
be termed “partnership activities” so that the station does not appear to
have such a large amount of time going toward official (Union) duties.
There is no question that Pierson demonstrates an admirable
dedication to duty.
He clearly takes his representational role seriously --seriously enough
that even if he had to use annual leave to fulfill his obligations, he was
willing to do so. He genuinely believes he must spend virtually all of
this time in his presidential role. But
such an approach is contrary to both the language and spirit of the new
It is axiomatic in arbitration that if parties change
language (in this case a great deal of language) there is an expectation that
actions, decisions, and other activities will change as a result. The
new language, mutually accepted, directs Union officials not to re-label their
activities, but to refocus them.
2. In the absence of a
specific definition, are not nearly all Union activities “partnering”
activities since they advance the labor-management relationship, and are
therefore properly classified as “LMR”?
No, for two reasons. First,
there is specific new language defining quite distinct differences between “representational”
and therefore official time duties, and “partnership” activities to be done
on duty time.
The Union believes the sorts of activities its officials must
engage in to properly represent the bargaining unit and fulfill their fiduciary
obligations (looking into an employee complaint, engaging in research on
labor-management issues, preparing for a meeting with management, having
discussions with employees over their concerns, reading and answering e-mails
from management and bargaining unit members), are all proper “partnership”
Such an interpretation does not square with any of the new
Both the MA and the SA are clear that “Representational Functions”
are “official time” activities.
There is no ambiguity here. Union
officials have but two categories of work in which they may engage, other than
their normal VA duties: partnership or representational.
The agreements, in multiple places, makes them quite distinct.
Secondly, one might explore the alternative.
If, as the Union contends, “representational activity” (which both
Pierson and Rasmussen admit they were doing) is embraced by the term “Other/LMR”,
then “2.B. Representational Functions” would be unnecessary.
That is, if most of the traditional representational activities were
viewed narrowly as advancing the labor-management relationship, what then would
be the purpose of adding extensive new language on partnering?
What would “partnership activities” be, in contrast to
representational activities? Nothing
in the MA (Art. 3), nor in the SA (Art. 21 and Appendix A) would support the
3. What or who defines
what constitutes a “partnership activity?”
The two agreements. Both
Agreements specifically distinguish between “partnership” and “official”
activities, and nothing is plainer than the fact that the former must concurrently
involve representatives of both labor and management.
One simply cannot have a partnership activity without a
partner; and it is clear from both the MA and SA that the expected partner is
either labor or management; it is not a member of the bargaining unit.
Phrased differently, no time a Union official spends in the Union
office is likely to be properly identified as “partnership time.”
While section “1.F.” may be designed as a “catch-all” for joint
activities that may not be sufficiently defined by categories A-E, it is clearly
not to be used as a designation when the activities are representational.
Those are reserved to “2.B.”
In addition, it should be apparent that if members of both
labor and management were not present, an explanation of what type of LMR
activity occurred is required. The
Union errs in contending that the Employer cannot insist upon an explanation
beyond whatever Pierson chooses to write down. The
SA requires that an explanation be specified whenever “1.F. Other/LMR” is
Should a circumstance exist when a member of management was not present,
the explanation would be even more essential if “partnering” is to be agreed
to have occurred. The agency is not
limiting the Union on the use of partnership time; but it quite properly expects
to be present when such time is used, or be provided with a sufficiently
specific explanation as to why other activity should be considered partnering,
consistent with the language of Appendix C, 1.F.
4. Is “LMR”
partnership time available anytime official time is exhausted? Clearly not since, as noted, except in extraordinary
circumstances partnering activities must involve both labor and management.
The amount of work to be done by the Union president is, in
his view, expanding due to the increased numbers of e-mails, higher levels of
research, more demands by constituents, etc. Union
officials believed they could not properly carry out their fiduciary
responsibilities within the official hours available under the SA: 50% of the
president’s time (in contrast to 100% of his time), plus 40 hours for all
other Union officials. Indeed, the
number of official hours being used by Pierson and other Union officials
regularly hit the maximums provided.
In a sense this is self-fulfilling: in continuing to deal
with management in a traditional fashion, Pierson cannot likely represent
members of the bargaining unit in half the number of hours. But
had Union officials been more deeply involved in partnership activities as
contemplated by both the MA and the SA, less official time would have been
In addition, management is concerned that the parties were
reducing the number of official hours consistent with the goals of the SA
(from 50% to 25%), and equally important, that the Union president was failing
to engage in at least some work related to his VA job description, consistent
with the new language. The Denver
VA station remains sharply out of line with other locations of similarly-sized
bargaining units, i.e., many more hours are being spent by Union officials on
representative functions than the norm.
Article 21, Section 1 states that “adequate and sufficient
time away from assigned duties and responsibilities” must be provided so that
other partnering and representational responsibilities can be fulfilled.
And when all the arguments and rhetoric are stripped away, one fact
remains paramount: all parties agreed that 50% of his time was the
necessary and sufficient amount,
and that a proper target was 25%.
If the Union exhausts its official time available each month,
it has four options: (a) seek more official time,
(b) use annual leave, (c) abandon marginal representational activities, or (d)
work more efficiently. Neither “LMR”
nor “partnership time” in another form is substitutable for official time
under the language of the agreements.
5. May a Union official
be forced to use annual leave to fulfill his/her fiduciary responsibilities?
No. Annual leave may be used
for any reason whatsoever, without interference by the Employer.
Both parties agreed that the representational duties can and
should be done in a
maximum of 50% of the president’s time plus 40 additional hours per
month from other Union officials; i.e., those caps are “adequate and
sufficient.” Based upon the
surveys of comparable institutions, this would appear quite reasonable.
If, as noted above, an increased work loads appears to make this
difficult, the Union still has three of the options above (a, c and d) available
to it. Nothing forces
the use of annual leave; it just may be that in the Union’s judgment it is
None of this in any way contravenes the Linn decision,
which ultimately holds only that if annual leave cannot be denied for other
than for staffing needs or emergencies, official time also may not be denied
except for those reasons. In the
instant case, official time was denied not for a reason (which would
have been violative), but because the cap, mutually agreed upon and contained in
the SA, had been reached. Indeed,
under the circumstances presented, it would have been irresponsible, and perhaps
violative, had the Employer done the reverse, i.e., grant
official time when none existed, absent a specific request for an exception (or
expansion). Yet the record is clear
that no one in the Union sought an increase in the amount of time available in
March 2000 beyond the levels negotiated, i.e., 50% of the president’s normal
hours and 40 aggregate hours for other Union officials.
It is unfortunate but understandable that Pierson and
Rasmussen felt compelled to use personal annual leave time to catch up on
necessary Union work: a crucial merger was occurring; and Pierson was away in
January for training that allowed routine matters to accumulate.
But nothing in the record would support a contention that March 2000 was
in some way especially demanding: there were no more e-mails, no more issues
present than normal. If there were,
no evidence was presented to support such a position.
Finally, Pierson seeks to show that his rights were also
violated when Ann O’Hart, serving in the place of the absent Shearin, would
not specifically respond to his request for partnership time.
But she was only temporary, and she told him she was not authorized to
respond. She even told him it was
Smart who prevented her from such authorization.
There is nothing improper or unusual about this: temporary managers
frequently do not possess the full range of authority possessed by the regular
incumbent. Pierson could have and
should have then approached Smart, but he chose not to.
The issue is decided in the negative, and the grievance is denied.
THOMAS L. WATKINS, Arbitrator
May 29, 2001
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