15:0355(76)AR - AFGE National INS Council and INS -- 1984 FLRAdec AR



[ v15 p355 ]
15:0355(76)AR
The decision of the Authority follows:


 15 FLRA No. 76
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO, 
 NATIONAL IMMIGRATION AND 
 NATURALIZATION SERVICE 
 COUNCIL
 Union
 
 and
 
 U.S. IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
                                            Case No. O-AR-334
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Steven J. Goldsmith 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 Union filed an
 opposition.  /1/
 
    A grievance was filed in this case by the grievant disputing the
 Activity's accounting of official time between his positions as Eastern
 Region Vice President and First Vice President of Local 1917.  The
 grievance demanded that any official time taken in the grievant's
 capacity as local vice president not be charged against the hour
 allotment for the regional vice president, and the grievance stated that
 it covered "all past and future unauthorized charges of representation
 time against the Eastern Vice President's allotment of 416 hours." The
 grievance was not resolved and was submitted to arbitration on the
 following stipulated issue:
 
          Is the Agency justified in denying official time to (the
       grievant) for Union representational activities in excess of
       twenty per cent or four hundred and sixteen hours per year?  If
       not, what shall the remedy be?
 
    The Arbitrator determined that the Activity's action was not
 justified.  In addition, with respect to a remedy, the Arbitrator stated
 as follows:
 
          I am aware that only the rights of (the grievant) were
       litigated" here;  not those of any other Union official.  However,
       to avoid the necessity for an additional arbitration, (should the
       parties fail to agree on relief, if any, for other officials), I
       have granted the Union's request for a remedy for employees
       "similarly situated" to (the grievant).
 
    Accordingly, as his award the Arbitrator directed certain remedial
 action with respect to the grievant and with respect to other employees
 similarly situated.  The Arbitrator in his award also expressly retained
 jurisdiction over this matter for a limited time for the limited purpose
 of deciding any disputes as to the directed remedy.
 
    As one of its exceptions, the Agency contends that the Arbitrator
 exceeded his authority.  Specifically, the Agency principally argues
 that the scope of relief granted by the Arbitrator was in excess of his
 contractual authority by deciding issues not raised or otherwise
 presented to him at the hearing and by granting relief to persons who
 did not file a grievance.  It is the Agency's position that the
 Arbitrator should have confined his award to the issue stipulated by the
 parties which was concerned solely with the use of official time by the
 grievant.
 
    The Authority has indicated that an award may be found deficient as
 in excess of the arbitrator's authority when the arbitrator awards
 relief to employees who did not file grievances on their own behalf or
 who did not have the union file grievances for them.  See Internal
 Revenue Service, Birmingham District Office and National Treasury
 Employees Union, NTEU Chapter 12, 6 FLRA 143 (1981) (citing Hotel
 Employees Union v. Michelson's Food Services, 545 F.2d 1248 (9th Cir.
 1976)).  In terms of this case, the Authority concludes that the award
 is deficient.  The Agency has substantiated that the issue as stipulated
 by the parties for resolution pertained solely to the Activity's
 accounting of official time for the grievant.  Furthermore, it is
 unsubstantiated that either the parties' collective bargaining
 agreement, see IRS, Birmingham, 6 FLRA at 147, or the Arbitrator's
 purpose of avoiding an additional arbitration authorized the Arbitrator
 "to transform the proceeding into a sort of class action on behalf of
 all employees . . . who were similarly situated," see Michelson's Food
 Services, 545 F.2d at 1253.  In these circumstances the Authority finds
 that the Arbitrator decided an issue not presented to him when he
 awarded relief under the parties' collective bargaining agreement to
 "other employees similarly situated," as well as to the grievant, and
 that consequently the Arbitrator exceeded his authority.  Accordingly,
 the award is modified by striking "and to other employees similarly
 situated" in paragraphs 2-3 of the award and by striking "and other
 employees similarly situated" in paragraph 4 of the award.  /2/
 
    Issued, Washington, D.C., July 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its opposition the Union asserts that the Agency's exceptions,
 which were filed by Department of Justice, should be dismissed because
 Immigration and Naturalization Service, and not Department of Justice,
 was a "party" to the arbitration.  However, the Authority finds that the
 exceptions in this case have been properly filed by Department of
 Justice on behalf of its component bureau the Immigration and