13:0077(19)AR - Local 1917, AFGE and INS, Eastern Region -- 1983 FLRAdec AR



[ v13 p77 ]
13:0077(19)AR
The decision of the Authority follows:


 13 FLRA No. 19
 
 LOCAL 1917, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES
 (Union)
 
 and
 
 UNITED STATES IMMIGRATION
 AND NATURALIZATION SERVICE,
 EASTERN REGION
 (Agency)
 
                                            Case No. O-AR-539
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Malcolm D. MacDonald filed by the Agency under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
 
    The issue before the Arbitrator was whether granting the grievant's
 request, pursuant to Article 15, section D of the parties' agreement,
 for three days leave without pay (LWOP) per week to complete the balance
 of his law school studies would be consistent with the needs of the
 Service.  /1/ The Arbitrator reasoned that the language "consistent with
 Service needs" in the agreement contemplated a fair, reasoned and
 objective balancing of all relevant considerations and concluded that
 management had failed to undertake the requisite examination of the
 needs of the Service in this case and had erred in denying the
 grievant's request.  Accordingly, as his award, the Arbitrator
 determined that granting the grievant's request would be consistent with
 the needs of the Service and therefore that the request should be
 granted.
 
    In its exceptions, the Agency contends that the award violates
 management's right under section 7106(b)(1) of the Statute to determine
 "the numbers, types and grades of employees . . . assigned to any
 organizational subdivision, work project, or tour of duty" and is
 contrary to other law, rule or regulation, principally, Federal
 Personnel Manual (FPM) chapter 630.
 
    Upon careful consideration of the entire record before the Authority,
 including the contentions of the parties, the Authority concludes that
 the Agency has failed to establish that the award is deficient.  With
 regard to the Agency's first exception, as noted, the parties negotiated
 and incorporated in their collective bargaining agreement the provision
 specifying the criterion on which management's decision on whether to
 grant LWOP for educational purposes would be based.  Therefore, assuming
 but without deciding that the provision directly concerns a matter
 enumerated in section 7106(b)(1) of the Statute, the award is not
 contrary to section 7106(b)(1) because consistent with the terms of that
 section the Activity elected to bargain on the matter and agreed to the
 provision as part of its collective bargaining agreement.
 
    With regard to the Agency's exception alleging that the Arbitrator's
 award is contrary to law, rule or regulation, the Agency principally
 relies on FPM chapter 630, subchapter 12, which provides that the
 granting of LWOP is a matter of administrative discretion.  However,
 because the Agency does not establish that the exercise of that
 administrative discretion by means of the provision negotiated by the
 parties is inconsistent with law, rule or regulation, no basis is
 provided for finding deficient the Arbitrator's award interpreting and
 applying that provision.  See Northeastern Program Service Center,
 Office of Program Service Centers, Social Security Administration and
 American Federation of Government Employees, Local 1760, 7 FLRA No. 120
 (1981);  Long Beach Naval Shipyard, Long Beach, California and
 International Federation of Professional and Technical Engineers, Local
 174, AFL-CIO, 7 FLRA No. 53 (1981).
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., September 23, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Article 15, section D of the parties' agreement provides, in
 pertinent part:
 
          Employees may be gr