47:0692(65)AR - - AFGE, Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1993 FLRAdec AR - - v47 p692



[ v47 p692 ]
47:0692(65)AR
The decision of the Authority follows:


47 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2353

_____

DECISION

May 21, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Willard H. Pedrick 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 did not file an opposition to the Agency's exceptions.

The Arbitrator denied a grievance relating to a 5-day suspension of the grievant. As part of his award, the Arbitrator also found, however, that the Agency was obligated to provide the grievant's Union representative with a certain amount of official time to prepare for two arbitration hearings. Therefore, the Arbitrator ordered the Agency to restore any annual leave charged to the representative for the time spent preparing for the arbitration hearings.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

On March 20, 1991, the grievant telephoned his supervisor and advised him that he would not report to work that day because of car problems. The grievant requested annual leave for the day's absence. The supervisor denied the request for leave and ordered the grievant to report for duty. The grievant failed to appear at work. Subsequently, the grievant was given a proposed 5-day suspension based on his unauthorized absence. After the grievant was given an opportunity to respond to the proposed suspension, which he did in an untimely fashion, the grievant was officially notified that he would be suspended without pay for 5 days. A grievance was filed concerning the issuance of the 5-day suspension.

After the suspension was proposed, and during the processing of the grievance, the grievant requested a number of documents relating to the suspension. The grievant was supplied with some of the documents and was referred to other offices in which other documents were maintained. Also, prior to the invocation of the second step of the grievance procedure, the grievant and his second level supervisor signed a written statement waiving an oral presentation concerning the grievance that the grievant had requested. After the grievance was denied at the third step of the grievance procedure, arbitration was invoked.

The parties did not agree on the issues for arbitration. The Arbitrator formulated the issues to be decided as follows: (1) whether the 5-day suspension was supported by the evidence and was within the Agency's authority to impose under applicable law and regulations; (2) whether the grievant's representative was improperly denied official time to prepare for two arbitration hearings, both of which involved the grievant; (3) whether the Agency failed to supply the grievant with requested material in connection with the arbitration hearing in this case; and (4) whether the Agency acted improperly in dealing directly with the grievant on a matter related to the arbitration hearing.

The Union argued before the Arbitrator that the 5-day suspension was invalid because of procedural irregularities in processing the grievance. Specifically, the Union argued that the Agency failed to supply all the requested documents to the grievant and improperly dealt directly with the grievant regarding an oral presentation after the grievance had been filed. The Union also argued that a 5-day suspension was disproportionate and discriminatory when compared with similar cases. Finally, the Union claimed that the grievant's representative had not been allowed an adequate amount of official time in light of the fact that he was responsible for processing two grievances involving the same grievant on successive days.

The Agency maintained that the grievant waived his right to claim any procedural irregularities by failing to respond timely to the proposed 5-day suspension. The Agency also argued that the Union failed to establish discrimination in the issuance of the 5-day suspension. As to the Union's assertion regarding insufficient official time, the Agency contended that the parties' master labor agreement explicitly limits to five hours the amount of official time to prepare for an arbitration hearing.

The Arbitrator first addressed the issue of the sufficiency of official time for the grievant's representative. The Arbitrator noted that the Agency denied the representative's request for eight hours of official time to prepare for two arbitration cases on the basis that the representative had exhausted his allotted amount of official time. Examining various provisions of the parties' master agreement(2), and taking into account the parties' arguments regarding this issue, the Arbitrator found that although there is a limit of 5 hours of official time during a pay period, Section 4.076 of the agreement also provides for extensions of that time period in extraordinary situations. The Arbitrator found that while the agreement does not explicitly address the availability of official time in this circumstance, "multiple arbitration preparations in the same pay period call for an enlarged amount of 'official time' for preparation . . . ." Award at 5. Consequently, the Arbitrator concluded that the Agency was obligated to enlarge the amount of official time in this case.

The Arbitrator also addressed the portion of the parties' master agreement that limits an arbitrator's authority to the issues raised in a formal grievance. According to the Arbitrator, the matter of official time "is ancillary to the principal question of the grievance proceeding." Id. The Arbitrator found that it would be both inefficient and expensive to require a separate arbitration proceeding on the issue of official time. Therefore, the Arbitrator concluded, in accordance with the parties' master agreement and in the circumstances of this case, that the grievant's representative was entitled to the requested 8 hours of official time. Consequently, the Arbitrator ordered that the grievant's representative be allowed 8 hours of official time and that any annual leave charged to the representative "on account of these arbitration cases" be restored. Id. at 9.

Next, the Arbitrator rejected the Union's contentions that procedural irregularities were sufficient to invalidate the 5-day suspension. The Arbitrator found that the grievant either was provided with the requested documents or was told where to obtain the documents. The Arbitrator also found, for various reasons, that the Agency's conduct in dealing directly with the grievant in order to secure his signature waiving an oral presentation of the case "was not prejudicial to the grievant." Id. at 6.

Finally, the Arbitrator addressed the merits of the 5-day suspension. The Arbitrator found that the grievant had a history of being absent without leave and that the Agency had submitted substantial evidence to support the issuance of the suspension. Consequently, the Arbitrator denied the grievance.

III. The Exceptions

The Agency excepts to the award on the basis that: (1) the award fails to draw its essence from the parties' master agreement; and (2) the remedy goes beyond the scope of the issue submitted to the Arbitrator and exceeds the Arbitrator's authority.

More particularly as to the first exception, the Agency contends that the award imposes a duty on the Agency to grant additional official time to the grievant's representative despite language in the parties' agreement making such decisions discretionary. The Agency explains that the contractual limit placed on the amount of official time available contemplates that several different activities would be occurring concurrently. According to the Agency, the Arbitrator's finding that two arbitration proceedings taking place at the same time was an "extraordinary event" was "implausible." Exceptions at 6. The Agency also claims that this case is similar to awards that have been found deficient on the basis that the awards failed to draw their essence from the applicable agreements. Further, the Agency argues that the language of the parties' agreement requiring mutual consent of the parties to enlarge the amount of official time available was completely ignored by the Arbitrator. In the Agency's view, the "contempt displayed for the negotiated rights of the Agency, displays an irrational and implausible interpretation and a manifest disregard for the [agreement]." Id. at 7.

As to its second exception, the Agency contends that the issue of official time was submitted to the Arbitrator by the grievant's representative and was "couched in terms of its affect upon the [g]rievant and his case." Id. The Agency argues that because the representative was not a party to the grievance, the award of official time to the representative goes beyond the scope of the issue submitted to arbitration and exceeds the scope of the Arbitrator's authority. Accordingly, as the award contains a remedy for someone other than the grievant, the Agency contends that the award is deficient.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Consequently, we will deny the exceptions.

First, we reject the Agency's contention that the award is deficient because it fails to draw its essence from the parties' master agreement. For an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).

The Agency has not demonstrated that the award fails to draw its essence from the parties' master agreement under any of the tests set forth above. Contrary to the Agency's assertion, the Arbitrator did not ignore the agreement. Rather, the Arbitrator examined the provisions of the agreement regarding official time and found that the agreement did not specifically address the case of one Union representative handling two separate arbitration hearings on successive days. The Arbitrator then examined the provision regarding the availability of extended periods of official time and found that the Agency was obligated to provide additional time to the Union representative in this case. We do not view the Arbitrator's award as irrational, implausible or so unconnected with the wording and purpose of the agreement so as to evidence a manifest disregard for the agreement. Instead, we view the Agency's exception as disagreement with the Arbitrator's findings, reasoning, and conclusion as well as disagreement with his interpretation and application of the agreement. Such an exception provides no basis for finding the award deficient. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, SSA General Committee, 46 FLRA 1118, 1122 (1993); U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398-99 (1991).

We also reject the Agency's contentions that the remedy directed by the Arbitrator goes beyond the scope of the issue submitted to arbitration and exceeds the scope of the Arbitrator's authority. An arbitrator exceeds his or her authority when, for example, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 35 FLRA 1175, 1177 (1990). However, in the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues to be resolved in an arbitration proceeding. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991) (Federal Aviation Administration).

In addition, and of particular applicability to this case, an arbitrator will not be found to have exceeded his or her authority when the arbitrator extends an award to issues that necessarily arise from the arbitrator's formulation of such issues. See for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 240 (1987); Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986). See also National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 274-76 (1992).

Here, one of the issues formulated by the Arbitrator, apparently in response to arguments raised by the parties at the arbitration hearing, was whether the grievant's representative was improperly denied official time that, in the representative's view, was necessary "'to prepare this case.'" Exceptions at 7, quoting Transcript of Arbitration Hearing at 22. The Arbitrator's finding that the representative was entitled to the official time he had requested under the parties' master agreement and the Arbitrator's award extending relief to that representative were directly responsive to the issue as framed by the Arbitrator and as argued by the parties. Indeed, the question of official time was raised because of the representative's claimed inability to prepare adequately for representing the grievant. Although the Agency claims that the Union was attempting to "couch[] [the issue of official time] in terms of its affect upon the [g]rievant and his case[,]" the Arbitrator obviously was persuaded that the availability of official time under the parties' collective bargaining agreement was related to the grievance. Exceptions at 7. In our view, the relief that was awarded by the Arbitrator necessarily arose from his formulation of the issue and is consistent with Authority precedent.

The award in this case is distinguishable from awards that have been found deficient on the basis that arbitrators resolved matters or awarded relief based on issues that were not stipulated by the parties for resolution by the arbitrator. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680 (1991) (Oklahoma City Air Logistics Center); American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 15 FLRA 355 (1984). This case is also distinguishable from cases in which awards were deficient because the arbitrator resolved issues that were not encompassed within the grievance or had not been raised in any other manner before the arbitrator. See, for example, U.S. Department of Veterans Affairs Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1988, 37 FLRA 1092 (1990); U.S. Department of Veterans Affairs Medical Center, Asheville, North Carolina and American Federation of Government Employees, Local 446, 37 FLRA 1054 (1990). Finally, this case can be distinguished from U.S. Department of Justice, Federal Prison System, Federal Correctional Facility, Fort Worth, Texas and American Federation of Government Employees, Local 1298, AFL-CIO, 17 FLRA 278 (1985). In that case, an arbitrator was found to have exceeded his authority by fashioning a remedy that went beyond the scope of the grievance and the issue as formulated by the arbitrator. The Authority found that although evidence was presented by the union to support the remedy, the evidence was relevant only to proving the claim set forth in the grievance and the union clearly had requested a remedy that was limited to the grievant.

In contrast to the cases cited above, the issue regarding official time for use by the grievant's representative, although not explicitly referenced in the grievance itself, was raised by the parties before the Arbitrator and was included in the issue formulated by the Arbitrator. In addition, the parties were given the opportunity, both at the arbitration hearing and in post-hearing submissions, to address the issue.(3) As a result, the parties had an opportunity to argue the merits of the issue before the Arbitrator and cannot be viewed as having been harmed by the Arbitrator's resolution of the issue.

Our dissenting colleague appears to draw a distinction between an arbitrator's ability to formulate issues, which our colleague readily acknowledges may be done in the absence of a stipulated issue, and an arbitrator's ability to provide remedial relief connected with that issue. For this reason, our colleague states that an award will be found deficient when the arbitrator "'issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them.'" See dissenting opinion, infra, slip op. at 11, quoting Oklahoma City Air Logistics Center, 42 FLRA at 685 (emphasis added). We do not view this as a rigid dual-pronged test; rather, it is meant to indicate examples of instances where arbitrators exceed their authority in the circumstances of a given case. As we stated above, we find that this award is sufficiently related to both the initial grievance and the issues formulated by the Arbitrator. Specifically, we find no support for the proposition that awarding relief to a non-grievant, in and of itself, is grounds for finding an award deficient without regard to whether such relief is predicated on the issue before the arbitrator.

There can be no doubt that when an issue relates to asserted improper conduct by an agency, an arbitrator is well within his or her authority to provide relief to an employee who was harmed by that conduct. Further, it is consistent with Authority precedent for an arbitrator to formulate a disputed issue and to resolve that issue by rendering an affirmative remedy. That is precisely what occurred in this case. Our dissenting colleague quite simply overlooks the link between the Arbitrator's formulation of an issue and the remedial relief that was predicated on the resolution of that issue. This is not to say that an award that orders relief to non-grievants could not be found deficient. Indeed, if the Arbitrator had awarded official time to other Union representatives when the issue related solely to the use of official time by the grievant's representative then the Arbitrator would have exceeded his authority by awarding a remedy that did not comport with the formulated issue. On that, we would agree with our colleague. However, to the extent our colleague is of the opinion that the relief awarded by the Arbitrator was improper because the grievant was not, in any rational way, the focus of the relief granted or because the award did not address the injury complained of in the grievance, we respectfully disagree.(4)

In sum, we find that the Arbitrator did not exceed his authority by resolving an issue concerning official time for the grievant's representative and awarding relief to that representative. In our view, the Agency is merely disagreeing with the Arbitrator's interpretation of one of the issues before him and his resolution of that issue. The exception provides no basis for finding the award deficient. See Federal Aviation Administration and General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1046 (1992).

V. Decision

The Agency's exceptions are denied.

APPENDIX

The relevant provisions of the parties' master labor agreement are as follows:

Section 4.05: OFFICIAL TIME - GENERAL . . . The employer agrees to allow official time as provided in § 4.06 and § 4.07 below to employees who are officials/stewards of the Union . . . to accomplish the specified functions as set forth herein.

Section 4.06: When work conditions are such that the steward/official may be excused from work, a reasonable amount of official time will be granted to . . . (2) represent an employee or the Union at an arbitration hearing . . . (13) prepare employee grievances and appeals; . . . (19) prepare for arbitration;

Section 4.07: FUNCTIONS FOR WHICH A LIMITED AMOUNT OF OFFICIAL TIME IS AUTHORIZED: Not more than five hours per pay period of non-cumulative non-transferable official time will be authorized for stewards below divisional level, to perform those duties indicated in § 4.06(13) through (21). It is understood that reasonable time will be granted under the circumstances in this section for duties indicated in 4.06(1) through (2).

b. Extensions for cases involving extraordinary situations may be granted upon mutual agreement of the local Union president and the activity Labor Relations Officer.




Dissenting Opinion of Member Armendariz

I respectfully dissent from my colleagues' analysis and conclusions with respect to the Agency's exception that the remedy directed by the Arbitrator exceeded the Arbitrator's authority. The Majority's opinion in this regard cannot be reconciled with our precedent. While it is true that in the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues for resolution in an arbitration proceeding, that deference is not without limitation. It is also true that arbitrators have great latitude in fashioning remedies; however, that latitude is not without limitation. See U.S. Department of Justice, Federal Prison System, Federal Correction Facility, Fort Worth, Texas and American Federation of Government Employees, Local 1298, AFL-CIO, (Fort Worth) 17 FLRA 278 (1985). See generally Hotel and Restaurant Employees and Bartenders International Union v. Michelson's Food Service, 545 F.2d 1248, 1253-54 (9th Cir. 1976) (arbitrator exceeded his authority by providing relief to persons on whose behalf the union did not file a grievance where the union could have filed such a grievance). The Authority has consistently held that an arbitrator exceeds his authority when he "issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them." U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680, 685 (1991) (Tinker Air Force Base) (emphasis added). See also, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA No. 62, slip op. at 6 (1993); Fort Worth; American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 15 FLRA 355, 356 (1984).

It is undisputed that the grievant's representative in the instant case did not file a grievance on his own behalf. Likewise, it is undisputed that the Union did not file a grievance on behalf of the grievant's representative. Further, it is undeniable that the Arbitrator provided a remedy to the grievant's representative:

The grievant's representative . . . is entitled to have an "official time" allowance as requested by him in the amount of eight hours for the pay period in question. Any annual leave time charged against [the grievant's representative] on account of these arbitration cases should be restored.

Award at 9. Therefore, because the Arbitrator awarded relief to a person who did not file a grievance on his own behalf and who did not have the Union file a grievance for him, the Arbitrator exceeded his authority.

This case is distinguishable from the three cases cited by the Majority in this regard. First, in Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 240 (1987) and National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252 (1992), the grievants were the focus of the relief granted and not other non-grievant employees. In the instant case, the grievant cannot in any rational way be said to be the focus of the relief granted to his representative, a non-grievant. Second, in Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986) (Air Force Space Division), the Authority held that the arbitrator's direction to the agency to comply with the specific term of the collective bargaining agreement at issue in the grievance was consistent with his authority to interpret and apply that portion of the collective bargaining agreement. In the instant case, the relief granted was not of the kind granted in Air Force Space Division, and does not address the injury complained of in the grievance filed by the grievant.

The Majority's analysis fails to recognize that the test for whether an arbitrator exceeds his authority is written in the disjunctive:

[an arbitrator exceeds his authority when he] issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them.

42 FLRA at 685 (emphasis added). The Majority does not contend that the grievant's representative was not awarded relief. The Majority concedes that "the issue regarding official time for use by the grievant's representative [was] not explicitly referenced in the grievance . . . ."(*)

Majority opinion at 7. Indeed, the Arbitrator's statement supports the Majority's concession in this regard: "[i]n the course of the hearing . . . the grievant's representative complained that the Agency had not allowed him adequate 'official time' to prepare for the arbitration hearing . . . ." Award at 3. Nevertheless, the Majority concludes that the Arbitrator did not exceed his authority by providing relief to the grievant's representative, even though he did not file a grievance on his own behalf and did not have the Union file a grievance for him. The Majority's application of this disjunctive, dual pronged test renders the second prong virtually meaningless.

I would find that the Arbitrator exceeded his authority by awarding relief to a person who did not file a grievance on his own behalf and did not have the Union file a grievance for him. Accordingly, I would modify the Arbitrator's award by striking paragraph 1. Based on the foregoing analysis and conclusion, I would not find it necessary to reach the Agency's exception that the award fails to draw its essence from the parties' master agreement.

APPENDIX TO DISSENTING OPINION

"employee and providing -- not providing all of the data that was requested.

I'm also raising further, at this time, the issue that I was denied all the official time to prepare this case. I was assigned this at a late date, and I had requested five hours per case. There were two of these cases back to back. And, I was denied any of that to prepare this case for arbitration.

I, therefore, had to do this on my own time, which I would have used some of my own time anyway, but I would have still been allowed five hours to prepare this case, and was not. Therefore, Mr. Fields has been denied the representational right for me to prepare this case for him.

I'm going to offer two more exhibits; Union No. 4, which is 2 pages. And, the first page is the request I made to prepare on this case, and the second page of it is where it was all denied.

(The above-referred document was marked for identification as Union Exhibit No. 4, and was received into evidence.)"

Transcript at 22.

"to do what I say, also.

We'll argue this later. I'm not...

CAPTAIN KIRKPATRICK: ... and redo the decision...

MR. COLLINS: I just wanted to know what you were saying.

CAPTAIN KIRKPATRICK: Just because there was a procedural irregularity, doesn't mean that he should get his pay restored.

ARBITRATOR PEDRICK: All right. I take it that that concludes the opening statements on both sides.

CAPTAIN KIRKPATRICK: I do have one additional comment. ARBITRATOR PEDRICK: All right.

CAPTAIN KIRKPATRICK: I wanted to draw your attention to a portion of the Master Labor Agreement.

ARBITRATOR PEDRICK: Okay.

CAPTAIN KIRKPATRICK: It's found on page 10 of the Master Labor Agreement. This addresses the threshold issue raised by Mr. Collins.

ARBITRATOR PEDRICK: Yes.

CAPTAIN KIRKPATRICK: He is allowed"

Transcript at 26.

"certain amount of time under paragraph 4.07, it's called CAP time, to preform [sic] the functions under the previous paragraph, 4.06, 13 through 21.

You'll note that 13 is "prepare grievances and appeals".

ARBITRATOR PEDRICK: Right.

CAPTAIN KIRKPATRICK: The reason that he had to prepare for this on his own time, was because he had already used up his CAP'd time.

ARBITRATOR PEDRICK: I take your point.

MR. COLLINS: I will have to bring over somebody in rebuttal to this testimony, to bring this part out where I'm making the argument for Mr. Fields, or I can either do it in the brief, whichever you would prefer.

ARBITRATOR PEDRICK: I prefer the brief.

MR. COLLINS: Okay.

CAPTAIN KIRKPATRICK: Mr. Arbitrator.

ARBITRATOR PEDRICK: Yes.

CAPTAIN KIRKPATRICK: I started to speak, and I had nothing to say.

ARBITRATOR PEDRICK: Well, we're --"

Transcript at 27.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority Footnotes Follow:

1. Member Armendariz' dissenting opinion is set forth after the Appendix to this decision.

2. The relevant provisions of the agreement are set forth in the Appendix.

3. The record indicates that only the Agency filed a post-hearing brief.

4. In our view, our colleague's reliance on Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO v. Michelson's Food Services, Inc., 545 F.2d 1248 (9th Cir. 1976), is misplaced. In that case, the arbitrator impermissibly permitted employees who were similarly situated to the grievant to join in the grievance at the arbitration stage. The court found that the arbitrator was not empowered to "transform the proceeding into a sort of class action on behalf of all employees . . . " because "[t]he collective bargaining agreement, which defines the scope of the arbitration, does not permit bringing the other employees in for the first time at the arbitration stage." Id. at 1253. No such agreement provision was alleged to exist in this case.


Dissenting Opinion Footnote Follows:

*/ The Majority's refusal to apply the second prong of this disjunctive, dual pronged test is based, in sum and substance, on a conclusion that the parties raised the issue of official time for the grievant's representative and then fully addressed and argued that issue before the Arbitrator. The Majority's conclusions in this regard are based on the sole three pages of the transcript included in the record. Those three pages are reproduced, verbatim, in the appendix attached hereto. The only conclusion that can reasonably be supported from this scant record is that the grievant's representative complained at the hearing that the Agency had not allowed him adequate official time to prepare for the arbitration hearing, the Agency's representative poin