34:0342(65)AR - INS and AFGE, LOCAL 1917 -- 1990 FLRAdec AR
[ v34 p342 ]
The decision of the Authority follows:
34 FLRA NO. 65 U.S. IMMIGRATION AND NATURALIZATION SERVICE and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1917 0-AR-1653 (33 FLRA 885) DECISION January 18, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on exceptions to the award of Arbitrator John P. Finan filed by the American Federation of Government Employees, Local 1917 (the Union) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union's exceptions were dismissed initially as untimely filed U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 33 FLRA 843 (1988). The Union then filed a motion for reconsideration, contending that its exceptions were timely filed. The Union's motion for reconsideration was granted in U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 33 FLRA 885 (1989), and the case was reopened for further processing. The U.S. Immigration and Naturalization Service (the Agency) subsequently filed an opposition to the Union's exceptions. An employee grieved the Agency's denial of her request that the Agency: (1) convert annual leave taken by the grievant to conduct official Union business to official time; and (2) give the grievant compensatory time for time spent on weekends performing Union duties. The Arbitrator denied the grievance. For the reasons that follow, we concluded that the Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions. II. Background and Arbitrator's Award The grievant is the chief executive officer of the Union. The grievant requested that the Agency convert annual leave taken by her on July 6 and 13, 1987 "for the conduct of official (Union) business to official time." Award at 2. The grievant also requested that she be granted a total of 24 hours of compensatory time for time spent on weekends--July 4 and 11, 1987--conducting official Union business. Id. The Agency denied the grievant's requests and the matter was submitted to arbitration. After the parties were unable to agree on the issue, the Arbitrator stated the issue as: "1) whether the annual leave taken on July 6 and 13 should be converted into official time and 2) whether compensatory time should be granted for Union activities on July 4 and 11?" Id. at 6. The Agency stated that the parties' collective bargaining agreement provides that official time must be requested and approved in advance. The Agency argued that because the grievant failed to comply with the procedure for requesting official time, the grievant's request that her annual leave be converted into official time could not be granted. The Agency contended that it is unlawful to grant compensatory time for Union activities conducted during hours outside the grievant's normal hours of work. Id. The Union argued that the Agency had engaged in a "pattern of conduct" which resulted in the denial of the grievant's requests for official time. Id. at 7. The grievant argued that the Agency "repeatedly failed to process her requests." Id. The grievant asserted that the Agency's inaction effectively denied the grievant's requests for official time. The grievant asserted that she was required to use annual leave and work during weekend hours to conduct the Union's business, given the Union's deadlines and time constraints. When questioned by the Arbitrator whether her complaint was limited to the alleged denials of official time in July 1987 or whether it concerned the Agency's policy on granting requests for official time, the grievant stated that she was objecting to the Agency's ongoing policy concerning the processing of requests for official time. Id. at 5 and 7. The Arbitrator stated that although the grievant complained of an ongoing agency policy concerning requests for official time, he was "constrained to limit the issue to the four days in July cited in the grievant's complaint." Id. at 5. The Arbitrator found that the grievant had failed to prove that the Agency violated the parties' collective bargaining agreement. The Arbitrator stated that: (the grievant's) claim for conversion of annual leave to official time is apparently based on the theory that the Agency is obliged to do so because they have violated the Agreement by failing to process her request for official time to conduct Union business on July 6 and 13, 1987. However Grievant has produced no evidence to support that claim. . . . Her position apparently is that such an offer is unnecessary because of the pattern of conduct of the Agency in treating her requests. This theory must be rejected on two grounds. First, grievant did not prove such a pattern and second such a pattern would not support relief for the two days in question absent proof that grievant had requested official time for those particular days and that her request had been improperly handled. Id. at 8-9 (emphasis in original). The Arbitrator stated that the "grievant failed to prove that she requested official time for those days and obviously a request not made could not be processed improperly and the Arbitrator so finds. Given that finding the Arbitrator must deny the grievance requesting conversion of annual leave to official time for July 6 and 13." Id. at 10. The Arbitrator also found that the grievant failed to establish her claim for compensatory time. The Arbitrator stated that apart from the question of whether a grant of compensatory time for the performance of representational activity is legal, "there is a contractual impediment to the grant of the grievance." Id. at 10. The Arbitrator found that the parties' agreement provided that official time will be granted only during regular duty hours and that the grievant offered no evidence that the work she performed on July 4 and 11 was during regular duty hours. The Arbitrator stated: Grievant's theory in support of her claim that she is entitled to compensatory time for conducting representational activities on off-duty time apparently is that she was forced to do so because of the Agency's improper handling of her requests for official time. The premise on which that theory is based was not proved: grievant has failed to prove that the Agency has failed to process the requests properly . . . . Consequently, the Arbitrator need not address the question whether, had grievant proved the premise of her theory, she would be entitled to compensatory time for representational activities on July 4 and 11. Grievant has not proven her case for compensatory time and the Arbitrator so finds. Id. at 10-11 (citation omitted). The Arbitrator concluded that the grievant failed to establish her claim for official time and compensatory time and denied the grievance. Id. at 11. III. Positions of the Parties A. Union's Exceptions The Union states that the Arbitrator's award "denies what was not requested either as remedy by the Union or to be denied by the Agency(.)" Exceptions at 1. The Union contends that the Arbitrator's findings and award are not "limited to the confines of the parties' request." Id. The Union states that "(t)he grievant did not assert that there were requests for release from operations to representation on dates certain of July 6 and July 13 specifically." Id. The Union argues that the grievant showed that "there were numerous requests outstanding for time anytime(.)" Id. The Union also asserts that it "showed patterns of . . . the Agency's on-going (collective bargaining agreement) violations in failing to authorize official time to conduct Union representation." Id. The Union also disputes the Arbitrator's finding that the grievant offered no evidence that the representational activities performed on July 4 and 11, 1987 were performed during regular duty hours. B. Agency's Opposition The Agency contends that the exceptions should be dismissed because "the Union has not alleged, much less established, that the arbitrator's award is deficient for any of the reasons set forth in 5 U.S.C. 7122(a)(.)" Agency Opposition to Exceptions (Opposition) at 1. The Agency argues that the Union's exceptions constitute mere disagreement with the Arbitrator's determination concerning the issue before him, his rulings at the hearing, his findings of fact and fact and his interpretation of the parties' collective bargaining agreement. The Agency contends that the Union's exceptions do not provide a basis for finding the award deficient. Id. at 2-5. IV. Discussion The Union contends that the Arbitrator's award is not limited to the issues presented to the Arbitrator. We interpret the contention as a claim that the Arbitrator exceeded his authority by deciding an issue which was not before him. We find that the Union's exceptions fail to establish that the Arbitrator exceeded his authority. An arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL - CIO, Local 2429, 24 FLRA 516 (1986). However, when the parties cannot agree on a statement of the issue, an arbitrator does not exceed his authority when he formulates and decides the issue himself. Id. at 518-19. See also American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782 (1988). In this case, the parties were unable to agree on the issue. The parties submitted their views of the issue(s) to the Arbitrator and the Arbitrator framed the issue(s). See Award at 4-6; Brief for the Union at 1 (Attachment to Exceptions); and Opposition at 2. In the absence of a stipulated issue, the Arbitrator was free to formulate the issue(s) and extend his award to matters that necessarily arise from his formulation of the issue(s). The Union's exception that the award is not limited to the issues presented to the Arbitrator merely constitutes disagreement with the Arbitrator's formulation of the issues and provides no basis for finding the award deficient. See Air Force Space Division, 24 FLRA at 519. We also reject the Union's exceptions to the Arbitrator's factual findings and his evaluation of the evidence submitted by the grievant at the hearing. The Union's contentions that the grievant showed that there were numerous requests for official time pending before the Agency and that the grievant demonstrated a pattern of on-going violations of the parties' agreement do not state a ground on which the Authority will review an award. Accordingly, these contentions provide no basis for finding the award deficient. See Social Security Administration, Data Operations Center, Albuquerque, New Mexico and American Federation of Government Employees, Local 3512, 33 FLRA 134 (1988). V. Decision The Union's exceptions are denied.