American Federation of Government Employees, Local 1770, AFL-CIO (Union) and Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, N.C. (Activity)

 



[ v06 p348 ]
06:0348(62)AR
The decision of the Authority follows:


 6 FLRA No. 62
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 (AFL-CIO) LOCAL 1770
 Union
 
 and
 
 HEADQUARTERS XVIII
 AIRBORNE CORPS AND
 FORT BRAGG, FORT BRAGG, N.C.
 Activity
 
                                            Case No. O-AR-162
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR J. RALPH BEAIRD 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, THIS MATTER INVOLVED A DISPUTE BETWEEN
 THE ACTIVITY AND THE UNION AS TO WHETHER THE GRIEVANT WAS ENTITLED,
 UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, TO HAVE THE OPTION
 OF TAKING LEAVE WITHOUT PAY RATHER THAN ANNUAL LEAVE TO ATTEND A UNION
 MEETING.  UNABLE TO RESOLVE THE DISPUTE, THE PARTIES SUBMITTED THE
 FOLLOWING ISSUE TO ARBITRATION:
 
           DID (THE ACTIVITY) VIOLATE THE COLLECTIVE BARGAINING
 
    AGREEMENT WHEN IT DENIED GRIEVANT'S OCTOBER 29, 1979 REQUEST FOR
 LEAVE WITHOUT PAY?
 
    THE CONTRACT PROVISION INVOKED BY THE GRIEVANT AND BEFORE THE
 ARBITRATOR WAS ARTICLE XVII, SECTION 2 WHICH PROVIDES:
 
    SECTION 2.  THE UNION MAY DESIGNATE EMPLOYEE MEMBERS AS ELECTED OR
 APPOINTED
 
    REPRESENTATIVES TO A UNION ACTIVITY NECESSITATING A LEAVE OF ABSENCE.
  UPON WRITTEN
 
    NOTIFICATION TO THE EMPLOYER BY THE UNION, SUCH EMPLOYEES MAY BE
 GRANTED ANNUAL LEAVE OR LEAVE
 
    WITHOUT PAY PROVIDED HE CAN BE SPARED WITHOUT UNDUE INTERRUPTION TO
 THE OPERATION OF THE
 
    ORGANIZATIONAL ELEMENT IN WHICH HE IS EMPLOYED.
 
    THE ARBITRATOR FOUND THAT "(T)HE LANGUAGE OF THIS PROVISION IS CLEAR"
 AND THEREFORE, DUE TO ITS "DISCRETIONARY CHARACTER," THE GRIEVANT "WAS
 NOT ENTITLED, OF RIGHT, TO HIS REQUEST FOR LEAVE WITHOUT PAY ON OCTOBER
 29, 1979." THEREFORE, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION 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 RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY FILED AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD IS
 CONTRARY TO THE FEDERAL PERSONNEL MANUAL (FPM).  IN SUPPORT OF THIS
 EXCEPTION THE UNION ASSERTS THAT THE FPM PROVIDES AN EXAMPLE OF A
 SITUATION, SIMILAR TO THE FACTS IN THIS CASE, IN WHICH IT IS PROPER TO
 APPROVE LEAVE WITHOUT PAY.  FURTHER, THE UNION ARGUES THAT THE OPTION OF
 UNION REPRESENTATIVES TO USE EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY
 "HA(D) NEVER BEEN QUESTIONED BY MANAGEMENT" BEFORE THE GRIEVANCE IN THIS
 CASE AND THAT THE ARBITRATOR FAILED TO CONSIDER RELEVANT FEDERAL LABOR
 RELATIONS AUTHORITY DECISIONS.  /2/
 
    THE AUTHORITY FINDS THAT THE UNION HAS FAILED TO DEMONSTRATE THAT THE
 ARBITRATOR'S AWARD, FINDING THAT GRANTING LEAVE WITHOUT PAY UNDER THE
 AGREEMENT WAS DISCRETIONARY WITH THE ACTIVITY, IS CONTRARY TO THE FPM.
 THUS THE UNION HAS NOT DEMONSTRATED HOW THE FEDERAL PERSONNEL MANUAL OR
 THE CITED AUTHORITY DECISIONS ARE IN ANY MANNER RELEVANT TO THE
 ARBITRATOR'S AWARD IN THIS CASE.  THE SOLE QUESTION PLACED BEFORE THE
 ARBITRATOR, AND ADDRESSED BY HIM, INVOLVED A DISPUTE AS TO HOW A CERTAIN
 PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT SHOULD BE
 INTERPRETED.  THE UNION'S EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
 ARBITRATOR'S INTERPRETATION OF THAT PROVISION OF THE AGREEMENT, WHICH
 DOES NOT PROVIDE A BASIS FOR FINDING AN AWARD DEFICIENT.  RED RIVER ARMY
 DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-52, 3
 FLRA NO.  32(1980).  ACCORDINGLY, THE UNION'S EXCEPTION PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., JULY 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER, III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ THE UNION CITES GENERAL SERVICES ADMINISTRATION, REGION 9,
 FEDERAL PROTECTIVE SERVICE DIVISION, SAN FRANCISCO, CALIFORNIA AND
 INTERNATIONAL FEDERATION OF FEDERAL POLICE, LOCAL 41, 3 FLRA NO.
 22(1980), AND DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER,
 NEWPORT NAVAL BASE AND FEDERAL UNION OF SCIENTISTS AND ENGINEERS,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144, 3 FLRA NO.
 64(1980).