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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


In the matter of arbitration between:

Department of Veteran Affairs
Denver Regional Office





FMCS No. 00-50057





James 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

        FOR THE UNION:

Michael 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.


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” activities.[1]  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.[2]  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 activities.

    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:

Did the Employer violate the Master Agreement or the Supplemental Agreement by denying the use of official or partnership time for the periods in question?




§7131.  Official time

     “(d)  Except as provided in the preceding subsections of this section –

            “(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 public interest.




Section 1 – Purpose

A.    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:

  1. Pre-decisional involvement,

  2. Shared responsibility,

  3. Identification of problems,

  4. Sharing of information,

  5. Finding solutions,

  6. Reaching joint agreements and making joint recommendations,

  7. Use of alternative dispute resolution, interest-based problem-solving techniques, and facilitation,

  8. Integration of interests,

  9. Union and management working together on committees . . . .

  10. Cooperation

  11. Mutual respect,

  12. Open communication,

  13. Trust,

  14. Minimizing or elimination collective bargaining disputes, and

  15. Publicizing 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.



Section 1 – Purpose

. . . . .[O]fficial time shall be granted in amount specified by this Agreement or otherwise negotiated for the purpose of:

A.     Handling grievances and other complaints.

B.     Handling other representational functions, and

C.    Appropriate lobbying functions.


Section 6 – Duty-Time Activities

For the following matters, Union representatives will be on duty time:

A.     All activities relating to Partnership,

B.     All activities relating to Total Quality Improvement, and

C.    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

A.     Each VHA local is entitled to at least one Union official with no less than 40% official time. . . .

B.     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.






Section 3 – Annual Leave Request Procedures

B.  Unscheduled Annual Leave Procedures.  . . . . Normally, unscheduled annual leave request will not be denied unless approval would result in insufficient staffing . . . .



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 responsibilities.
  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.  [Emphasis added.]

    Partnership type 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

A.     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.  [Emphasis added.]

B.     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 added.]

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

A.     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). . . .

B.     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 fully documented.


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 will include:


  1. Pre-Decisional Discussions with Management

  2. Meetings with Management Officials

  3. Committee Meetings

  4. Partnership Research

  5. Negotiations (I&I, Contract)

  6. Other/LMR (Specify, e.g. Consultation)*


  1. Grievance

  2. Representational Functions

  3. Lobbying

  4. ULP*




   The Union 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 responsibilities.

    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.

   The Employer 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,[3] 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 predecessors.

    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 official time.  Under this new SA, the Union president’s official time was capped at 50%, with a target of 25% after three years.[4]  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 turn.

    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?  No.

    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 agreements.

    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” activities.

    Such an interpretation does not square with any of the new language.  Both the MA and the SA are clear that “Representational Functions” are “official time” activities.[5]  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 Union position. 

   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.[6]  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 used.

    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.[7] 

    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 necessary. 

    In addition, management is concerned that the parties were not  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,[8] 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,[9] (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 necessary.

    None of this in any way contravenes the Linn decision,[10] 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
Frisco, Colorado

[1] All “partnership” activities are coded “1.A-F.”

[2] For the Presidents, 50% of his normal hours each month, and for all other Union officials, 40 total hours per month.

* These two items are absent from Section A, which illustrates available codes for stewards and other Union officials, i.e., they are available only to the Union President.  The lists are otherwise identical.

[3] In the latter case, the period would be changed to sick leave, and the annual leave restored.

[4] By inference, the hours not spent on representational duties were to be spent doing one’s normal VA job assignment, unless involved in “partnering activities.”

[5] MA Article 45, Section 1; and SA Appendix C.

[6] The Employer has never denied a request for partnering time under 1.A-E, only under 1.F., the “catch-all” category.

[7] For the month directly in question, March 2000, this is confirmed by Employer Exhibit 1.  Neither this nor any other calculation of “official time” has ever been contested by the Union.

[8] This comports entirely with Title VII, Chapter 71, §7131 of federal law.

[9] Article 21, Section 2 provides for additional time (beyond 40 hours/month) for “unusual representational needs,” but as later noted, March 2000 was apparently not unusual.

[10] Department of Veterans Affairs, Denver Regional Office and AFGE Local 1557, FMCS 97-20382, John Phillip Linn, October 25, 1999.


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