United States, Department of Homeland Security, United States, Customs and Border Protection, United States Border Patrol, El Paso, Texas (Agency) and American Federation of Government Employees, Local 1929, National Border Patrol Council (Union)

[ v61 p122 ]

61 FLRA No. 24

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY, UNITED STATES
CUSTOMS AND BORDER PROTECTION
UNITED STATES BORDER PATROL
EL PASO, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1929
NATIONAL BORDER PATROL COUNCIL
(Union)

0-AR-3893

_____

DECISION

July 18, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator P. M. Williams filed by the Agency under § 7122(a) of the Statute and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator concluded that the grievance was arbitrable and that the Agency violated the parties' collective bargaining agreement by denying certain official time requests of the local union president. As a remedy, the Arbitrator awarded the president compensation and recrediting of annual leave. For the reasons set forth below, we deny the Agency's exceptions to the Arbitrator's arbitrability ruling and the Arbitrator's conclusion that the Agency violated the parties' agreement. However, we find that the remedy is deficient and modify it accordingly.

II.      Background and Arbitrator's Award

      The Agency denied numerous requests by the local union president for official time from October 21 through November 21, 2001. On November 21, 2001, the Union filed a grievance on behalf of the president, challenging the Agency's actions. The Agency denied the grievance on the basis that the denials of official time were due to operational necessity. On December 20, 2001, the Union filed the grievance at step II and noted that since the initial filing of the grievance, the Agency had denied the grievant's requests for official time for November 26-30 and December 10-14. The Union requested that the Agency abide by the official time provisions of the parties' collective bargaining agreement. [n1] 

      The Agency denied the step II grievance. Thereafter, the Union filed the grievance at step III and noted the following:

As a reminder, as asserted by the Union during the presentation of the grievance at the previous Steps of the Negotiated Grievance Procedure, since the [Agency's] improper denials of official time are continuous and on-going, this grievance incorporates any and all similarly denied official time requests submitted by the Grievant on and after October 24, 2001, including those requests that have been submitted and denied since the presentation of the Step II of the grievance on December 20, 2001.

Exceptions, Attach. JE2. The Agency denied the step III grievance, and the Union invoked arbitration.

      Before the Arbitrator, the Agency raised a procedural objection to the grievance. The Agency asserted that the Union's claims pertaining to denials of official time requests on and after November 26, 2001, were not procedurally arbitrable because they failed to comply with the notice requirements of Article 33(E) of the agreement. [n2]  In addition, the Agency argued that the Union's failure to comply with Article 33 could not be permitted on the asserted basis that the Agency's actions constituted a continuing violation because the continuing-violation [ v61 p123 ] theory does not apply to the notice requirements of Article 33.

      The Arbitrator rejected the Agency's procedural objection. The Arbitrator explained that a continuing grievance is impermissible only when it is prohibited by the agreement, the grieving party has been timely advised of the objection to the grievance, and the factual basis of the continuing grievance is not sufficiently similar to the initial grievance. The Arbitrator concluded that these circumstances had not been met in this case.

      On the basis of his procedural arbitrability ruling, the Arbitrator framed the issue on the merits as whether the Agency violated the agreement in denying certain official time requests of the grievant from October 23, 2001, to March 21, 2002. Award at 12. The Arbitrator found that the Agency's denial of the disputed requests violated Article 7 and sustained the grievance.

      In sustaining the grievance, the Arbitrator examined the bargaining history of Article 7 and noted that it was imposed on the parties as the result of an interest arbitration award issued by Arbitrator Ira Jaffe. On the basis of that award, the Arbitrator interpreted Article 7(A) as a presumption that the official time requests of Union officials participating in appropriate union activities will be granted. Consequently, the Arbitrator ruled that the resolution of the grievance depended on whether the Agency could support its claim that operational necessity precluded the granting of the disputed requests. He found that the Agency had failed to establish the operational necessity for the denials of the disputed requests. Accordingly, he concluded that the Agency violated Article 7(A) of the parties' agreement.

      As a remedy, the Arbitrator ordered as follows:

     A.      On the days in October, November, and December 2001, . . . when [the grievant] requested official time and it was denied and he worked at his regular duties he shall be paid the appropriate wages for those days of work. On days in January, February and March, 2002, . . . when his requests for official time were denied and he worked at his regular duties he shall be paid the appropriate wages for those days of work.
     B.      In March, 2002, . . . when his request for official time was denied and he asked for annual leave which was approved, those days shall be credited to his annual leave account (or, at his option, he shall be paid for those days at his regular wages for those dates).

Id. at 12.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency first contends that the Arbitrator's ruling finding that the grievance was procedurally arbitrable as to official time requests on and after November 26, 2001, is contrary to law and fails to draw its essence from the agreement. In addition, the Agency contends that the award on the merits is contrary to law and fails to draw its essence from the agreement.

      Specifically, the Agency argues that the procedural arbitrability ruling is contrary to law because the Arbitrator's determination that this case involves a continuing violation is incorrect. The Agency maintains that the continuing-violation theory does not apply to this case because the Union's procedural deficiency was the failure to comply with the notice provisions of the agreement. The Agency asserts that clearly established case law requires parties to exhaust the grievance procedures mandated by the collective bargaining agreement.

      In addition, the Agency argues that the procedural arbitrability ruling fails to draw its essence from the agreement because it conflicts with the plain language of the agreement. The Agency maintains that the Arbitrator rejected its procedural objection because the Agency had not timely advised the Union of its objection. The Agency notes that the agreement permits questions of arbitrability to be raised at any appropriate time, and the Agency asserts that raising the question at the beginning of the arbitration hearing was an appropriate time.

      As to the award on the merits, the Agency argues that it is contrary to § 7131 of the Statute and fails to draw its essence from the agreement because the Arbitrator did not apply the correct standard regarding official time requests. The Agency asserts that the right to official time for representational activities under § 7131(d) depends on the terms and conditions established in a collective bargaining agreement between the parties. The Agency notes that under Article 7(A) of the parties' agreement, the grievant's requests for official time were subject to local work requirements and § 7131 of the Statute. Consequently, the Agency claims that the standard applied by the Arbitrator is contrary to § 7131 because it did not take into account whether granting of the disputed requests was in the public interest.

      The Agency further claims that the Arbitrator misinterpreted the agreement and the award of Arbitrator Jaffe in ruling that there is a presumption that official time should be granted without taking into account local workload requirements.

      As to the Arbitrator's remedy, the Agency argues that the remedy is contrary to law. The Agency asserts [ v61 p124 ] that the remedy is deficient because the Arbitrator failed to find that the grievant performed official-time activities on nonduty or leave time. The Agency requests that the Authority modify the award, as follows: "[T]o provide straight[-]time compensation and/or annual leave only for the dates on which Grievant: (1) requested official time to perform official[-]time activities during his regularly scheduled duty hours; (2) the Agency wrongfully denied the request; and (3) Grievant can reasonably show that he performed the official[-]time activities on nonduty time." Exceptions at 24.

B.      Union's Opposition

      The Union contends that the Agency provides no basis for finding the award deficient.

      Specifically, the Union argues that the Arbitrator's procedural arbitrability ruling is not contrary to law because the Agency fails to identify any law violated by the Arbitrator's ruling. In the Union's view, the Agency is directly challenging the procedural arbitrability determination itself, which cannot provide a basis for finding the determination deficient.

      The Union further argues that the Arbitrator did not apply an incorrect standard for official time requests. The Union asserts that the award does not conflict with § 7131 of the Statute because Article 7 of the agreement sets out what the parties have agreed is reasonable, necessary, and in the public interest, and the Agency fails to establish that Article 7 violates § 7131(d). In addition, the Union asserts that the Agency also fails to establish that the Arbitrator's interpretation and application of Article 7 is deficient under the Authority's deferential essence standard.

      As to the Arbitrator's remedy, the Union argues that the remedy is consistent with Authority precedent. The Union claims that although the Arbitrator did not specifically find that the grievant performed official-time activities on nonduty or leave time, "[t]he [g]rievant testified that when the requests for official time were denied, he had no choice but to do his best to accomplish the work on his own time." Opposition at 13.

IV.     Analysis and Conclusions

A.     The Arbitrator's procedural arbitrability ruling is not deficient.

      The Authority recently restated its approach to rulings by arbitrators on procedural arbitrability. See, e.g., United States Dep't of Def. Educ. Activity, 60 FLRA 254, 255-56 (2004). The Authority generally will not find an arbitrator's ruling on procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. The Authority restated its approach as a "general" rule because it had recognized that a procedural arbitrability determination could be found deficient on the ground that it was contrary to law. This recognition was based on "the fact that statutory, procedural requirements may be established that apply to negotiated grievance procedures and recognizes that a statute could be enacted establishing a filing period for grievances." AFGE, Local 933, 58 FLRA 480, 481 (2003). [n3] 

      In its exceptions to the Arbitrator's procedural arbitrability ruling, the Agency directly challenges the ruling as contrary to law and as failing to draw its essence from the agreement. Under the Authority's general rule, the claim that the ruling fails to draw its essence from the agreement clearly provides no basis for finding the ruling deficient. Accordingly, we deny this exception.

      The claim that the ruling is contrary to law similarly provides no basis for finding the ruling deficient. In order for the ruling to be found deficient on this basis, the Agency must establish that it conflicts with statutory, procedural requirements that apply to the parties' negotiated grievance procedure. The Agency has failed to identify any such statutory requirements with which the Arbitrator's ruling that the disputed requests on and after November 26, 2001, were arbitrable conflicts. Accordingly, we deny this exception.

B.      The award is not contrary to § 7131 of the Statute.

      The Authority reviews questions of law raised by an exception to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether an award is consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).

      The Agency argues that under Article 7, the grievant's requests were subject to § 7131 of the Statute and that, consequently, the award is contrary to § 7131(d) because the Arbitrator did not take into account whether granting the disputed requests was in the public interest. We conclude that this exception provides no basis for finding the award deficient.

      Under § 7131(d), parties may negotiate for the granting of "official time in any amount the agency and exclusive representative involved agree to be reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(d); see United States Small Bus. Admin., Washington, D.C., 42 FLRA 890, 900 (1991) (SBA). In this [ v61 p125 ] case, the parties negotiated Article 7(A), which both parties agree provides that consistent with the Statute, local union presidents will normally be granted a reasonable amount of official time to perform appropriate labor relations duties, subject to workload requirements. Based on his interpretation and application of Article 7(A), the Arbitrator determined that the Agency violated Article 7(A) when it denied the grievant's disputed official time requests. The Agency fails to establish how this interpretation and application conflicts with § 7131 of the Statute.

      Once the parties have agreed on the terms and conditions of § 7131(d) official time in their collective bargaining agreement, an issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for an arbitrator, unless the contract provision is unenforceable. The Agency does not argue, and no basis is provided for finding, that Article 7(A) is unenforceable. Consequently, as interpreted by the Arbitrator, Article 7(A) is enforceable. As the Arbitrator was simply enforcing appropriate terms and conditions for granting official time under § 7131(d), the award is not contrary to § 7131. See SBA, 42 FLRA at 900 (party failed to establish that the arbitrator's award enforcing his interpretation of parties' agreement of § 7131(d) official time was contrary to § 7131 of the Statute).

      In our view, the Agency's public interest argument is misplaced. Parties in negotiating contract provisions for § 7131(d) official time must agree that the amounts of time to be granted under the provision are in the public interest. Section 7131(d) does not subject an arbitration award enforcing a contract provision negotiated under § 7131(d) to a public interest review. Accordingly, we deny this exception.

C.      The award does not fail to draw its essence from the agreement.

      The Agency argues that the award fails to draw its essence from the agreement because the Arbitrator misinterpreted the agreement and the award of Arbitrator Jaffe. The Agency claims that in ruling that there is a presumption that official time should be granted, the Arbitrator failed to account for the requirement that a request is subject to local workload requirements. We deny this exception because the Agency has misinterpreted the award.

      Contrary to the Agency's claim, the Arbitrator did not interpret or apply the agreement without taking into account local workplace requirements. Although the Arbitrator stated that there was a presumption that official time requests of local union presidents would be granted, he specifically ruled that the resolution of the grievance depended on whether the Agency could support its claim that operational necessity precluded the granting of the disputed requests. He denied the grievance on the express basis that the Agency had failed to establish the operational necessity for any of the denials of the disputed requests. See Award at 8-9. Accordingly, the Arbitrator's application of the agreement took into account local workplace requirements. Because the Agency has misconstrued the Arbitrator's application of the agreement and the basis for the award, its claim that the award fails to draw its essence from the agreement provides no basis for finding the award deficient.

D.      The Arbitrator's remedy is contrary to law.

      The Agency asserts that the remedy [n4]  is deficient because the Arbitrator failed to find that on the days he awarded compensation or recrediting of annual leave, the grievant performed 8 hours of official-time activities on nonduty or leave time. We conclude that the remedy is deficient.

      When official time authorized by a collective bargaining agreement is wrongfully denied and the representational activities are performed on nonduty time, § 7131(d) of the Statute "entitles the aggrieved employee to be paid at the appropriate straight-time rate" when the following requirements are met:

1.     An employee requested official time to perform official-time activities during the employee's regularly scheduled duty hours;
2.     Management wrongfully denied the request; and
3.     The employee thereafter performed the official-time activities on nonduty time.

United States Dep't of Transp., Fed. Aviation Admin., SW. Region, Fort Worth, Tex., 59 FLRA 530, 532 (2003) (FAA).

      In this case, the compensation remedy meets the first and second requirements, but not the third. The Union argues that the record supports the remedy because the grievant testified that he had no choice but to do his best to accomplish the work on his own time. We disagree that this testimony demonstrates that the third requirement is met. [ v61 p126 ]

      To support the compensation remedy, the Arbitrator needed to find, or the record would need to demonstrate, that on 43 workdays in a 6-month period, the grievant worked his regular schedule and thereafter performed 8 hours of official-time activities. The extent of the Arbitrator's findings in support of his compensation remedy is as follows: "On these dates [the grievant] requested official time, it was denied, and he reported to work on his regular schedule." Award at 10. The Arbitrator did not find that, on each of the dates on which he awarded 8 hours of compensation, the grievant performed "the official[-]time activities on nonduty time." FAA, 59 FLRA at 532. Similarly, the record, including the grievant's testimony, also fails to establish that the grievant performed 8 hours of official-time activities on nonduty time on each of the 43 workdays on which the Arbitrator awarded compensation. Accordingly, we vacate the award of compensation.

      We reach the same conclusion with respect to annual leave. The Authority has ruled that recrediting of annual leave is appropriate when annual leave is taken to perform representational activities for periods when official time should have been granted, but was improperly denied. See, e.g., Veterans Admin. Med. Ctr., Brockton, Mass., 21 FLRA 388, 391 (1986). As with the compensation remedy, in ordering the grievant's leave on March 1 and 8, 2002, recredited, the Arbitrator failed to find that on these days, the grievant performed 8 hours of official-time activities on leave time.

      However, as the record reflects that the grievant performed some official-time activities on nonduty time or annual leave time, we agree with the Agency that the award should be modified to award the grievant compensation or recrediting of annual leave for such time. See Exceptions at 24.

V.     Decision

      The Arbitrator's remedy is modified to award the grievant straight-time compensation or recrediting of annual leave for time spent performing official-time activities on nonduty time or annual leave time after the Agency wrongfully denied his requests for official time on any of the dates in dispute. Otherwise, the Agency's exceptions are denied.



Footnote # 1 for 61 FLRA No. 24 - Authority's Decision

   Article 7(A)(1) (Local Officials) pertinently provides:

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 to perform the duties of their office which are consistent with the Statute and this contract. . . . Local Presidents . . . will normally be released to perform appropriate labor relations duties, subject to workload requirements.

Award at 5.


Footnote # 2 for 61 FLRA No. 24 - Authority's Decision

   Article 33(E) requires that at step II, the grievant will "set forth in precise terms" the following:

[E]xactly what the grievance is; all the facts relating thereto . . . ; the pertinent Article(s) and Section(s) of this Agreement in dispute; the reason for dissatisfaction; and the corrective action desired.

Exceptions at 10 n.2.


Footnote # 3 for 61 FLRA No. 24 - Authority's Decision

   To the extent that a governing rule or regulation establishes a procedural requirement that applies to a negotiated grievance procedure, such a rule or regulation would similarly provide a basis on which a procedural arbitrability ruling could be found deficient. See § 7122(a)(1) of the Statute (noting that the Authority will set aside an arbitration award if the award is "contrary to any law, rule, or regulation[.]").


Footnote # 4 for 61 FLRA No. 24 - Authority's Decision

   Both parties view the Arbitrator's compensation remedy to be an award of 8 hours of straight-time compensation for each of the days on which the Arbitrator found a wrongful denial of official time after which the grievant worked his regular schedule. The Arbitrator was not so explicit. He merely ordered that the grievant be paid "the appropriate wages for those days of work." Award at 12. There is no dispute that the Agency paid the grievant when he worked his regular schedule. Accordingly, in the context of this case, and in agre