37:0362(23)AR - - Justice, INS and AFGE, National Border Patrol Council - - 1990 FLRAdec AR - - v37 p362



[ v37 p362 ]
37:0362(23)AR
The decision of the Authority follows:


37 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Union)

0-AR-1874

DECISION

September 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Louis M. Zigman filed by the Agency pursuant to 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 filed an opposition to the Agency's exceptions.

The grievance alleged that the Agency violated the parties' collective bargaining agreement by denying the Union President's request for official time to investigate, prepare, and file unfair labor practice charges with the Authority. The Arbitrator sustained the grievance and ordered the Agency to restore the 24 hours of annual leave that the grievant had used to investigate and file the unfair labor practice charges and to compensate the grievant at the straight time hourly rate for the 10 hours of his own time that the grievant had used for the same purpose. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

In January 1987, the grievant, in his capacity as the Union President, requested official time in which to investigate, prepare, and file unfair labor practice charges with the Authority. The Agency denied the request on the ground that the parties' collective bargaining agreement did not contain a provision allowing the grant of official time for Union officials to investigate and prepare unfair labor practice charges. The Union grieved the Agency's denial of official time and the grievance was submitted to arbitration on the following issue:

Did the Employer/Agency violate Article 7(A) of the collective bargaining agreement when it denied the grievant official time to investigate, file and prepare unfair labor charges?

If so, what is the appropriate remedy?

Award at 3.

Article 7 of the parties' agreement, entitled "Use of Official Time," provides in relevant part:

A. Local Officials

Upon request and approval in advance, a reasonable period of time in an on-duty status will be granted to accredited representatives of the Union for the purpose of carrying out the following union functions:

. . . .

(4) To be the personal representative of an employee who is presenting a complaint, grievance or appeal from an adverse action.

Id. at 5.

A Union witness testified at the hearing that during negotiations on Article 7 of the parties' agreement the Union sought "official time for its local union representatives . . . in order to carry out any and all functions that it was required to do as the exclusive representative of the employees." Id. at 6. The Union witness also testified that, in order to address this concern, the Union "wanted a rather broad and generic term in which to cover all these representation functions and one of those words which was chosen was the word 'complaint' as appears in Article 7[, Section] A. (4)." Id.

The Union witness stated that "the term complaint was not synonymous with a 'complaint' which might be filed against an employer by the FLRA." Id. at 7. The witness also claimed that "prior to 1985 local union officials were given official time to investigate unfair labor practice charges and other matters and there was never any problem with it." Id.

An Agency witness, who had been the chief management representative at the negotiations, testified that the word "complaint" as found in Article 7, Section A(4) was "used as a generic word and that a complaint could be construed as a matter falling within EEO concerns or other types of employee matters." Id. at 9. The Agency witness acknowledged that in the negotiations over Article 7 he did not "give any thought to unfair labor practices." Id. However, he testified that "it was not the intent of the parties to grant official time [to local Union officials] for the purpose of investigating unfair labor practices[.]" Id. Another Agency witness testified that "there was no such practice . . . concerning the use of official time for local [U]nion representatives involving investigations and preparations for unfair labor practice matters." Id. at 10.

The Arbitrator found that the language in Article 7, Section A(4) "is somewhat ambiguous" and "is capable and susceptible to two different meanings/interpretations." Id. at 16, 17. He stated that "[w]hether the parties intended the broad generic application of [the term 'complaint'] to include any and all types of complaints or whether the parties intended to limit official time to local union officers when dealing with 'legal' and/or 'administrative' type complaints is not readily apparent[.]" Id. at 16. The Arbitrator stated that he would, therefore, rely on "other evidence proffered by the parties during the arbitration hearing," such as "bargaining history and past practice." Id. at 17.

Noting that the Agency's chief representative in the negotiations on Article 7 had testified "that the term 'complaint' was a generic and broadly applicable term," the Arbitrator found persuasive the Union's argument that the parties intended the term "complaint," as used in Article 7, Section A(4), "to incorporate a wide variety and multitudinal type of employee problems, concerns and complaints similar to those matters which the Union would be required to investigate pursuant to its legal obligation as the exclusive bargaining agent." Id. at 18-19. The Arbitrator was not persuaded by the Agency's argument that "local [U]nion officials are automatically precluded from being given official time simply because they are requesting official time for unfair labor practices." Id. at 19. He stated that "[c]learly unfair labor practice allegations are within the broad term of a complaint and within the area and responsibility for the Union representatives to consider and investigate in carrying out its responsibilities." Id. at 19-20.

Accordingly, the Arbitrator concluded that the Agency violated the parties' agreement when it denied the grievant's request for official time to investigate, prepare and file unfair labor practice charges. He ordered the Agency to restore 24 hours of annual leave that the grievant had used to investigate and prepare the charges and to compensate the grievant at a straight time rate for 10 hours of his own time that he also used for that purpose.

III. First Exception

A. Positions of the Parties

1. The Agency

The Agency claims that the Arbitrator's interpretation of Article 7, Section A of the parties' agreement is contrary to section 7114(a)(1) of the Statute. The Agency contends that the Arbitrator interpreted the term "complaint" as used in Article 7, Section A(4) to include unfair labor practices because "he concluded that employee 'complaints' of ULPs [unfair labor practices] by management were, like other employee problems, concerns and complaints, among the 'matters which the Union would be required to investigate pursuant to its legal obligation as the exclusive bargaining agent." Exceptions at 6, emphasis supplied by Agency. The Agency argues that the Union's duty to represent unit employees under section 7114(a)(1) of the Statute "does not attach to statutory proceedings such as ULPs." Id. at 7.

The Agency notes in this connection that while the Union has a duty under section 7114(a) to represent an employee in a grievance, it has no such duty to represent an employee in an appeal to the Merit Systems Protection Board (MSPB). The Agency argues that this distinction applies to the Union's relationship with unit employees concerning the filing of unfair labor practice charges. According to the Agency, unfair labor practice charges can be filed by individual employees and the Union has no obligation to represent employees in the filing of those charges. The Agency maintains, therefore, that "the Arbitrator's conclusion that the Union here is obliged as the exclusive representative of unit employees to represent them in connection with filing ULP charges and, thus, that the parties must have intended to give [U]nion officers the official time which they needed to carry out the Union's statutory obligation in this regard, is contrary to law." Id. at 9.

The Agency states that "to hold that the Union has a duty to investigate such an alleged ULP is inconsistent with the role of the General Counsel and the right of employees to file ULP charges on their own behalf." Id. at 9-10. The Agency also contends that to hold that the Union has an obligation with respect to the filing of unfair labor practice charges by a unit employee deprives that employee of the right, under section 7114(a)(5) of the Statute, to choose outside representation in filing those charges.

2. The Union

The Union contends that the Agency's exception is mere disagreement with the Arbitrator's interpretation of Article 7, Section A(4) of the parties' collective bargaining agreement. The Union denies that the award obligates it to represent employees who file unfair labor practice charges and disagrees with the Agency's contention that "the Arbitrator did not indicate that the Union's entitlement to official time for representational purposes was limited to matters undertaken on behalf of individual employees." Opposition at 3, footnote omitted.

The Union maintains that the Arbitrator's award recognizes that the Union, as exclusive representative, is called upon both "to investigate possible unfair labor practices against individual employees and groups of employees, and to prepare and file unfair labor practices on their behalf, if warranted" and to investigate "unfair labor practices against the Union as an institution[.]" Id. at 5. The Union argues that the award does not "establish the Union as the sole conduit through which employees may process unfair labor allegations [but] merely grants official time to local Union officials engaged in the investigation, preparation and filing of unfair labor practice charges. Id. at 5-6, footnote omitted.

B. Analysis and Conclusions

We find that the Arbitrator's award is not deficient on the ground that it is contrary to section 7114(a) of the Statute. Accordingly, we will deny the Agency's first exception.

The Agency contends that the Arbitrator's award is based on the assumption that the Union is statutorily obligated to represent bargaining unit employees in unfair labor practice proceedings and the Agency argues at length that no such obligation exists under section 7114(a) of the Statute. We disagree with the Agency's characterization of the award. The Arbitrator's conclusion that the parties' agreement provides for official time for investigating, preparing and filing unfair labor practice charges is not based on an underlying finding that the Union is statutorily obligated to represent employees in such situations. Rather, the Arbitrator found that the bargaining history of the 1976 agreement, which was in force at the time of this grievance, indicated that the parties intended matters such as unfair labor practice preparation to be within the scope of the official time provisions.

The Arbitrator first found that the language of the relevant provision, particularly the term "complaint," was ambiguous and "capable and susceptible to two different meanings[.]" Award at 17. Accordingly, he examined extrinsic evidence, namely the bargaining history, to interpret the provision. He found that witnesses for both parties testified that the term complaint was used in a generic and broad sense. He noted that all witnesses recalled that the Union representative wanted the right to investigate any matter which caused employees "heartburn," even if the matter did not warrant formal litigation. Id. at 19. Based on that evidence, the Arbitrator determined that local Union officials are not automatically precluded from being given official time under the collective bargaining agreement simply because they are requesting official time for considering and investigating unfair labor practice allegations.

Accordingly, we conclude that the Agency has failed to establish that the Arbitrator's award interferes with the representation rights and duties of any party or that the award is in any manner contrary to section 7114(a) of the Statute. The Agency's first exception merely constitutes disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement to find that the Union is entitled to official time in connection with the filing and investigation of unfair labor practice complaints. Such disagreement provides no basis for finding the award deficient. For example, U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1186 (1990).

IV. Second Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator's award is contrary to section 7131(d) of the Statute. The Agency notes that section 7131(c) provides that the Authority may issue regulations granting official time to employees who participate on behalf of a union in proceedings before the Authority. The Agency maintains that if official time is to be made available to union officials to investigate, prepare, and file unfair labor practice charges, "such time would have to be provided by the Authority through regulation pursuant to [section 7131(c)], not negotiated under [section 7131(d)]." Exceptions at 11.

As to section 7131(d), the Agency contends that neither section 7131(d)(1) nor 7131(d)(2) "can be interpreted as authorizing the parties to negotiate official time for use by union officials acting as the 'personal representative of an employee' who is filing a ULP charge, since [unfair labor practices] are matters covered by the Statute, and therefore, by subsection (c) of § 7131, and not subsection (d)." Id. at 11-12. According to the Agency, section 7131(d)(1) "authorizes parties to negotiate for official time for use by union representatives only where the union is, through those employee representatives, carrying out its responsibilities as the 'exclusive representative,' as where such representatives are dealing with grievances under the negotiated procedure." Id. at 12. The Agency argues that acting as the "personal representative" of unit employees in investigating and drafting unfair labor practice charges "would clearly not constitute acting for the Union in its capacity as the 'exclusive representative.'" Id. at 13. The Agency asserts that an unfair labor practice charge filed by an employee is a matter between the employee and the Authority, not between the Union and the Authority. Id. at 14. The Agency concedes that employees may ask for Union assistance in filing unfair labor practice charges, but contends that a Union representative providing such assistance has no different status with respect to section 7114(a) and section 7131(d) from a Union representative assisting an employee in an MSPB proceeding. Id. at n.2.

The Agency contends that its interpretation of section 7131(d) is the only interpretation that is consistent with the provisions of the Statute prescribing the role of the General Counsel in prosecuting unfair labor practices. The Agency argues that the Statute authorizes only the General Counsel to investigate unfair labor practices and that the Statute does not provide for agencies and unions to negotiate on official time for union representatives to participate in unfair labor practice proceedings. The Agency argues that the Authority must provide for official time for participation in unfair labor practice proceedings through the issuance of regulations. The Agency concludes that "Congress' decision to place the power to decide when official time should be used in connection with ULP and other proceedings in the hands of the Authority rather than permit the parties to negotiate such matters is preclusive." Id. at 15.

2. The Union

The Union contends that the lists of activities set forth in the cases cited by the Agency as support for its claims as to the kinds of activity for which official time is authorized under section 7131(d) were not intended to be all-inclusive. The Union argues that "representing bargaining unit employees injured by an agency's commission of unfair labor practices" is an obvious representational activity and that if it were not, "each employee would be required to file individual charges to seek redress from agency unfair labor practices which affect the unit as a whole" and that the "chaos and inefficiency" that would result would be contrary to the intent of the Statute. Opposition at 7.

The Union asserts that section 7131(d) authorizes official time for any employee representing an exclusive representative or in connection with labor relations matters under the Statute, except for matters already covered by section 7131(a), (b), or (c). According to the Union, because section 7131(c) applies to proceedings before the Authority, "it cannot reasonably be stretched to apply to the investigation, preparation or filing of unfair labor practice charges prior to their receipt by the Authority." Id. at 8, emphasis in original. The broad wording of section 7131(d)(1), the Union argues, "places no limits upon official time negotiated for use by employees representing an exclusive representative" and makes it "abundantly clear that the use of official time for the investigation, preparation or filing of unfair labor practice charges is indeed negotiable." Id.

The Union disputes the Agency's argument that "since agencies cannot negotiate to impasse over a proposal which would mandate informal resolution procedures before a union could file unfair labor practice charges, unions should not be allowed to negotiate to impasse over a proposal regarding official time for the investigation, preparation and filing of unfair labor practice charges." Id. The Union contends that the two concepts "are completely inapposite" because the statutory right to file unfair labor practice charges is negotiable only at the election of the parties and the negotiation of official time is mandatory under the Statute. Id.

B. Analysis and Conclusions

We conclude that the award is not contrary to section 7131(d) of the Statute and we will deny the Agency's exception.

Section 7131(d) of the Statute provides that representatives of an exclusive representative "shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." The Authority has held that official time negotiated under this section is to be used for "labor-management relations activity." American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1012 (1988) (AFGE, Local 2761). The Agency maintains that the award is contrary to law because official time for the preparation and investigation of potential unfair labor practice charges do not fall within the scope of "labor-management activities" under section 7131(d). We find no merit in this contention.

The Authority has not addressed the precise question of whether time to prepare and investigate potential unfair labor practices falls within the scope of section 7131(d). However, in AFGE, Local 2761, the Authority gave the following examples of matters which are included within that section:

Examples of representational activities for which official time may be used include the investigation and attempted informal resolution of employee grievances; participation in formal grievance resolution procedures; attendance at, or preparation for, meetings of committees on which both the labor organization and management are represented; and discussion of problems in contract administration with management officials.

32 FLRA at 1012 (citing S. Rep. No. 969, 95th Cong., 2d Sess. 113 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Civil Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print 96-7, at 773 (1979)). In agreement with the Union, we find that the absence of matters specifically relating to unfair labor practices in the Authority's list of subjects suitable for official time under section 7131(d) is not significant. The matters listed were intended to be examples rather than an exhaustive list.

The Authority has found matters to be unrelated to labor-management relations and therefore inappropriate for official time under section 7131(d) where there is no relationship to labor-management activities under the Statute. For example, AFGE, Local 2761, 32 FLRA at 1012 (time to attend an employee's funeral); Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA 391, 392-93 (1987) (time to represent former employee in unemployment compensation hearing), request for reconsideration denied, 29 FLRA 194, 195 (1987); National Archives and Records Administration and American Federation of Government Employees, Council 236, Local 2928, 24 FLRA 245 (1986) (NARS) (time for assisting employee with private matter with police). In contrast, unfair labor practices are matters defined by the Statute and undeniably involve labor-management relations. Accordingly, we find that official time for matters relating to unfair labor practices is a proper subject for negotiations under section 7131(d) of the Statute.

The Agency, however, puts great emphasis on the Authority's use in AFGE, Local 2671 of the term "representational activities" and argues that only matters arising out of the Union's role as exclusive representative (i.e., for which a duty of fair representation attaches) are within the scope of section 7131(d). Exceptions at 13.

This argument is without merit. There is nothing in the Statute, its legislative history or Authority precedent to support the conclusion that the scope of section 7131(d) is limited to such "representational activities" of a union. The Authority has held only that the subject of official time must be related to labor-management relations. AFGE, Local 2761, 32 FLRA at 1012; NARS, 24 FLRA at 247-48.

The Agency also argues that official time for participation in any phase of unfair labor practice proceedings must be provided by regulations issued by the Authority pursuant to section 7131(c) of the Statute. The Agency analogizes this argument to Equal Employment Opportunity Commission (EEOC) proceedings where "official time" (excused time) is controlled by statute or regulation. Exceptions at 16. However, the Authority has held that official time for participation in EEOC proceedings, such as the processing of EEO complaints, concerns activities relating to labor-management relations and is within the scope of section 7131(d). National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1503-04, enforced in part and reversed in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989).

The Agency's remaining arguments are similarly without merit. The Agency cites Department of Defense, Dependent Schools, Mediterranean Region, Naples American High School (Naples, Italy), 21 FLRA 849, 850 (1986) for the proposition that "while an individual employee has a protected right to gather information to support a ULP charge, such sleuthing must be conducted 'on his own time.'" Exceptions at 13-14. However, the Agency misconstrues the Authority's holding in that case. The Authority held only that the right to gather information to support an unfair labor practice charge is protected, irrespective of when it is done. Further, the Agency claims support from the Authority's decision in U.S. Department of Agriculture, Food Safety and Inspection Service, 22 FLRA 586 (1986), which found that agencies may not require unions to bargain over provisions which would require unions to engage in certain "pre-charge" procedures prior to filing an unfair labor practice charge. The Authority held in that case that the union could not be required to waive its statutory right to file charges at any time. No similar issue is present in this case.

For the above reasons, we conclude that the Agency has failed to establish that the Arbitrator's award is contrary to section 7131 of the Statute and the exception is denied.

V. Third Exception

A. Positions of the Parties

1. The Agency

The Agency alleges that the award is deficient because it is contrary to section 7103(a) of the Statute. The Agency argues that to the extent the Arbitrator equates the term "employee" with the terms "labor organization" or "exclusive representative" in determining that union representatives act as the "personal representatives" of employees when investigating unfair labor practices, the award is inconsistent with the definitions of those terms as set forth in section 7103(a). Exceptions at 17. The Agency states that the contract clause at issue, Article 7, Section A(4), did not provide for the representation of "persons," which by legal definition would include both employees and unions, but for representation of "employees," which, as the term "employee" is defined in section 7103(a), would not include a union. Id. The Agency concludes that, "[b]y ignoring these legal definitions, the Arbitrator failed to make necessary legal distinctions, resulting in an award based on an illegal conclusion of law." Id.

2. The Union

The Union contends that nothing in the Arbitrator's award supports the Agency's assertion that the Arbitrator "equates 'employee' with 'labor organization' or 'exclusive representative.'" Opposition at 10. The Union argues that the Arbitrator's interpretation of the parties' collective bargaining agreement is correct and that it does not conflict with section 7103(a) of the Statute.

B. Analysis and Conclusions

The Agency fails to demonstrate that the award is contrary to section 7103(a) of the Statute. Essentially, the Agency argues that the Arbitrator's interpretation of certain terms in the parties' agreement was inconsistent with the definitions of those terms in the Statute. However, this does not demonstrate that the award is deficient as there is no requirement that terms used in a collective bargaining agreement be defined exactly as they are in related statutes. The Arbitrator merely interpreted the collective bargaining agreement to determine whether the agreement provided for official time for investigating unfair labor practices. Further, we note that the agreement was negotiated in 1976, whereas the Statute was not enacted until 1978. Therefore, there is no reason to assume that the meanings attributed to terms contained in the agreement were to be the same as those found in the Statute.

We conclude that the Agency is only disagreeing with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. Such disagreement provides no basis for finding an award deficient. For example, U.S. Department of the Treasury, Internal Revenue Service, Louisville District and National Treasury Employees Union, 36 FLRA 375, 382 (1990). The exception is denied.

VI. Fourth Exception

A. Positions of the Parties

1. The Agency

The Agency alleges that the award is deficient because it is based on a nonfact. The Agency contends that even if the Authority rejects its claims that the award is inconsistent with law, the award must be set aside "on the grounds that the Arbitrator's gross mistake of fact concerning the scope of the Union's statutory obligation was clearly central to his award." Exceptions at 18. The Agency argues that the Arbitrator interpreted the term "complaint" to include unfair labor practices because he erroneously concluded that unfair labor practices were matters that the Union was required to investigate pursuant to its legal obligations as an exclusive representative. Id. at 19.

2. The Union

The Union asserts that the Agency's contention that the Arbitrator based his award on the nonfact that "the Union is obliged under law as the exclusive representative to represent unit employees who wish to file ULP charges[,]" is "essentially the same" as the Agency's first exception. Opposition at 10. The Union argues that the Agency has not shown that the award "obliges the Union to represent all unit employees in the filing of unfair labor practice charges." Id. at 11. The Union concludes that because the Agency has not proven the alleged "nonfact," the Agency's exception is without merit. Id.

B. Analysis and Conclusions

We will find an award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an award to be found deficient on this ground, it must be established that the alleged "nonfact" was the central fact underlying the award, was erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id.

The Agency asserts that the Arbitrator based his award on the nonfact "that the Union is obliged under law as the exclusive representative to represent unit employees who wish to file ULP charges." Exceptions at 2. However, we find that this argument is that the award is contrary to law, not that it is based on a nonfact. See Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98, 103-05 (1990) (contention that award erroneously found that employees were entitled to overtime is not an allegation of nonfact, but that award is contrary to law). The Agency is only disagreeing with the Arbitrator's interpretation of the collective bargaining agreement. Because we find that this exception is substantially identical to the Agency's first exception, it is denied for the same reasons supporting the denial of that exception.

VII. Fifth and Sixth Exceptions

A. Positions of the Parties

1. The Agency

The Agency contends that, even if the Authority construes the award as encompassing circumstances in which the complainant in the unfair labor practice is the Union officer conducting the investigation, the award is deficient because it is contrary to section 7114(a)(1) and section 7131(c) and (d) of the Statute. The Agency states that the grievant "was either seeking to investigate ULPs which he believed had been committed against himself as an employee or as a [U]nion representative, or against the Union qua Union." Exceptions at 21. The Agency also notes that Article 7, Section A(4) "expressly" pertains to the use of official time by a union representative acting as the personal representative of an employee who is presenting a complaint. Id. The Agency concludes that, even if the Union had a statutory duty to investigate unfair labor practices, "the provision would, on its face, apply only when an employee went to the Union and asked for representation in the filing of the charge against the employer by the employee." Id., emphasis in original.

The Agency contends that when a Union official investigates an unfair labor practice against himself or the "Union qua Union," the official is not representing the "exclusive representative" within the meaning of section 7131(d), as defined by section 7114(a), "any more than when he investigates an alleged ULP committed against a rank-and-file member." Id. at 22. The Agency argues that when a union official is acted against by the employer, any ULP charge filed by that official would be filed by the official as a "person," and that when a union official files a ULP charge concerning the "[u]nion qua union," the official is acting as an agent of the union as a "corporate 'person.'" Id. The Agency concludes that Article 7, Section A(4) cannot "rationally be held to apply to situations where [U]nion officers are acting for themselves or the Union even if the parties had not used the express term 'personal representative.'" Id. at 23.

In its sixth exception, the Agency contends that "if the Arbitrator is found by the Authority to have, indeed, interpreted Article 7, Section A(4) as requiring the approval of contractual official time for [U]nion officials to investigate and file charges for alleging ULPs against the [U]nion, as opposed to an employee, the award does not draw its essence from the agreement." Id. at 24. In support of this exception the Agency states that "Article 7, Section A, clearly and unequivocally provides official time for local [U]nion officers only as they act as the 'personal representatives' of employees with complaints, not for themselves or for the Union." Id., emphasis in original. The Agency argues that the term "personal representative" applies only to representatives who are representing the interests of the individual employee and that the right of an employee to personal representation is not affected by the rights of an exclusive representative. Id. at 25. The Agency concludes that even if the parties could negotiate a provision authorizing official time for union officials to act as the personal representatives of employees in filing unfair labor practice charges, Article 7, Section A(4) was intended to be "limited to the circumstances in which an individual employee files the ULP charge." Id. at 25-26.

2. The Union

The Union contends that the Agency's fifth exception is the same as the first exception. The Union argues that the Agency's claim that "the Union would be limited to representing one individual at a time relies upon its own interpretation of the contractual language, which is inconsistent with the Arbitrator's award." Opposition at 12, emphasis in original. The Union concludes that the Agency is merely disagreeing with the Arbitrator's interpretation of the collective bargaining agreement.

With regard to the sixth exception, the Union contends that the Agency has not met its burden of showing that the Arbitrator's award fails to draw its essence from the agreement. The Union argues that the Agency's claim that "the term 'personal representative' should be given the meaning that it proposes . . . is but another disagreement with the [A]rbitrator's finding." Opposition at 13, emphasis in original.

B. Analysis and Conclusions

The Agency's fifth and sixth exceptions are essentially repetitions of its first exception. In addition, the exceptions are hypothetical, based on assumptions of how we may rule in this case. That is, both exceptions ask the Authority to rule on the validity of the award assuming that the award is construed to provide for official time in situations not covered by the specific award in this case. For the purposes of this decision, we construe both assertions as contentions that the award fails to draw its essence from the parties' collective bargaining agreement.

For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990).

The Arbitrator found that Article 7, Section A(4) of the parties' agreement provided for official time to investigate unfair labor practices and that the grievant in this case, who was denied official time, w