American Federation of Government Employees, National Border Patrol Council (Union) and U.S. Immigration and Naturalization Service, Southern Region, Dallas, Texas (Activity)



[ v03 p541 ]
03:0541(87)AR
The decision of the Authority follows:


 3 FLRA No. 87
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 NATIONAL BORDER PATROL
 COUNCIL
 Union
 
 and
 
 U.S. IMMIGRATION AND
 NATURALIZATION SERVICE,
 SOUTHERN REGION, DALLAS,
 TEXAS
 Activity
 
                                            Case No. 0-AR-49
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HAROLD H. LEEPER FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE AGENCY UNILATERALLY TERMINATED A CONSULTATION SESSION AFTER TWO
 DAYS.  THE UNION FILED A GRIEVANCE ALLEGING A VIOLATION OF THE
 COLLECTIVE BARGAINING AGREEMENT.  THEREIN, THE UNION ASSERTED THAT
 MANAGEMENT, BY LIMITING THE CONSULTING MEETING TO TWO DAYS, LEFT
 NINETEEN AGENDA ITEMS UNDISCUSSED.  THE UNION ASSERTED THAT THE CONTRACT
 PROVIDES FOR THREE DAYS OF CONSULTATION AND THAT THEREFORE IT WAS A
 CONTRACT VIOLATION TO CURTAIL THE MEETING AFTER TWO DAYS.  THE PARTIES
 WERE UNABLE TO RESOLVE THE DISPUTE AND IT WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    THE ISSUE ADDRESSED BY THE ARBITRATOR WAS WHETHER "THE SOUTHERN
 REGION VIOLATE(D) THE COLLECTIVE BARGAINING AGREEMENT WHEN IT
 UNILATERALLY TERMINATED A CONSULTATION SESSION AFTER TWO DAYS OF
 DISCUSSION." THE ARBITRATOR FOUND THE AGREEMENT TO BE CLEAR AND
 UNAMBIGUOUS.  CONSEQUENTLY, HE CONCLUDED:
 
    ARTICLE 3, PARAGRAPH D PROVIDES THAT "REGIONAL MEETINGS WILL NOT
 EXCEED THREE DAYS
 
    EACH." IT DOES NOT STATE, AS THE UNION URGES, THAT REGIONAL MEETINGS
 WILL CONTINUE FOR THREE
 
    FULL DAYS, UNLESS SHORTENING THE MEETING IS AGREED TO BY BOTH
 PARTIES.  THEREIN LIES THE GIST
 
    OF THIS GRIEVANCE.
 
    IN THIS LIGHT, THE ARBITRATOR HELD THAT THE CONTRACT PLACED A
 LIMITATION OF THREE DAYS, NOT A REQUIREMENT OF THREE DAYS.  HE FOUND
 THAT "NO CONSTRUCTION OR INTERPRETATION" OF THE CONTRACT WOULD SUPPORT
 THE UNION'S CONTENTIONS AND HE, THEREFORE, DENIED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON
 A NONFACT.  THE UNION, IN SUPPORT OF THIS EXCEPTION, ARGUES THE
 ARBITRATOR CONSIDERED UNSUBSTANTIATED EVIDENCE AND REFUSED TO CONSIDER
 EVIDENCE OF PAST PRACTICE AND BARGAINING HISTORY.  IN ADDITION, THE
 UNION ASSERTS THAT THE ARBITRATOR CONSIDERED A NONFACT IN MANAGEMENT'S
 CLAIM THAT THE AGENDA WAS EXHAUSTED AT THE END OF THE SECOND DAY EVEN
 THOUGH, ACCORDING TO THE UNION, FOURTEEN UNION ITEMS WERE LEFT
 UNDISCUSSED.  FINALLY, THE UNION ASSERTS THAT THE ARBITRATOR'S VERSION
 OF THE "GIST OF THE GRIEVANCE" IS A NONFACT NOT SUPPORTED BY ANY
 EVIDENCE, AND IN EFFECT "A GROSS MISTAKE OF FACT BUT FOR WHICH A
 DIFFERENT RESULT WOULD HAVE BEEN REACHED."
 
    THE UNION'S FIRST EXCEPTION, THAT THE AWARD IS BASED ON A NONFACT,
 STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT
 UNDER SECTION 7122(A)(2) OF THE STATUTE.  UNITED STATES ARMY MISSILE
 MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 185, AFL-CIO, CASE NO. O-AR-7, 2 FLRA NO. 60
 (JAN. 17, 1980).  HOWEVER, IN THIS CASE THE UNION HAS NOT DEMONSTRATED
 THAT THE AWARD IS BASED ON A NONFACT, THAT IS, THAT THE CENTRAL FACT
 UNDERLYING THIS AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT IS A GROSS
 MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  RATHER, THE UNION'S ASSERTIONS IN SUPPORT OF ITS EXCEPTION
 CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S FINDINGS OF FACT AND WITH
 THE ARBITRATOR'S REASONING AND CONCLUSIONS BASED ON THE EVIDENCE AND
 TESTIMONY BEFORE HIM.
 
    THE AUTHORITY WILL NOT REVIEW AN ARBITRATOR'S AWARD WHERE IT APPEARS
 THAT THE EXCEPTION CONSTITUTES DISAGREEMENT WITH THE REASONING EMPLOYED
 BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE HIM.  VETERANS
 ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND AND LOCAL 331, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, CASE NO. O-AR-55, 3 FLRA NO. 34 (MAY
 21, 1980).  THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT
 OF THIS EXCEPTION THE UNION ARGUES THAT THE ARBITRATOR'S INTERPRETATION
 OF THE AGREEMENT WOULD ALLOW MANAGEMENT TO TERMINATE THE MEETING AT
 THEIR WILL.
 
    THE UNION'S SECOND EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND, SUPRA.  HOWEVER,
 IN THIS CASE THE UNION DOES NOT DEMONSTRATE IN ITS EXCEPTION THAT THIS
 AWARD FAILS TO DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING
 AGREEMENT.  THUS, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S
 AWARD CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE AGREEMENT;  OR IS
 SO UNFOUNDED IN REASON AND FACT, SO UNCONNECTED WITH THE WORDING AND
 PURPOSE OF THE COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN
 INFIDELITY TO THE OBLIGATION OF THE ARBITRATOR;  OR THAT IT EVIDENCES A
 MANIFEST DISREGARD OF THE AGREEMENT;  OR THAT, ON ITS FACE, THE AWARD
 DOES NOT REPRESENT A PLAUSIBLE INTERPRETATION OF THE CONTRACT.  SEE
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND, SUPRA, AND
 PRIVATE SECTOR CASES CITED THEREIN.  INSTEAD, THE UNION'S ARGUMENTS IN
 SUPPORT OF ITS EXCEPTION THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM
 THE AGREEMENT CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S
 INTERPRETATION AND APPLICATION OF THE AGREEMENT PROVISION BEFORE HIM.
 THAT IS, THE UNION IS SEEKING TO HAVE ITS OWN INTERPRETATION OF ARTICLE
 3, PARAGRAPH D SUBSTITUTED FOR THE ARBITRATOR'S INTERPRETATION AND HIS
 APPLICATION THEREOF TO THE MATTER BEFORE HIM.  THIS DOES NOT CONSTITUTE
 A BASIS FOR FINDING AN AWARD DEFICIENT.  UNITED STATES ARMY MISSILE
 MATERIEL READINESS COMMAND, SUPRA.  THEREFORE, THE UNION'S SECOND
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AN