San Antonio Air Logistics Center, Kelly Air Force Base, Texas (Activity) and American Federation of Government Employees, Local Union 1617, San Antonio, Texas (Union) 

 6 FLRA No. 74
 
 SAN ANTONIO AIR LOGISTICS
 CENTER, KELLY AIR FORCE
 BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 (AFL-CIO), LOCAL UNION 1617,
 SAN ANTONIO, TEXAS
 Union
 
                                            Case No. O-AR-58
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JOHN F. CARAWAY FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
 CONCERNED A PROPOSED VOLUNTARY SURVEY OF EMPLOYEES TO BE CONDUCTED BY
 THE ACTIVITY, THE SAN ANTONIO AIR LOGISTICS CENTER.  THE ACTIVITY HAD
 BEEN EXPERIMENTING WITH A PRODUCTIVITY AND JOB SATISFACTION PROGRAM
 WHICH WAS KNOWN AS THE ORTHODOX JOB ENRICHMENT (OJE) PROGRAM.  BOTH THE
 ACTIVITY AND THE GENERAL ACCOUNTING OFFICE DESIRED SOME DATA ON WHICH TO
 EVALUATE THE PROGRAM AND THEREFORE A SURVEY OF EMPLOYEE ATTITUDES
 RESPECTING THE PROGRAM WAS AUTHORIZED.  AT THIS TIME, IN A NEWSLETTER
 MAILED TO ITS MEMBERS' HOMES, AFGE LOCAL 1617 ADVISED ITS MEMBERS THAT
 IF THEY WERE ASKED TO COMPLETE THE SURVEY, THEY SHOULD DO SO IN A FIXED
 MANNER OUTLINED IN THE NEWSLETTER SO AS TO INVALIDATE THE DATA.  AS A
 RESULT OF THE NEWSLETTER, THE ACTIVITY DETERMINED THAT THE SURVEY WOULD
 NOT BE VALID AND DEFERRED IT FOR FOUR MONTHS.  AT THE SAME TIME, THE
 ACTIVITY FILED A GRIEVANCE AGAINST LOCAL 1617 ALLEGING THAT THE UNION'S
 ACTIONS VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND
 SEEKING MONETARY DAMAGES FOR THE ADDITIONAL COSTS INCURRED AS A RESULT
 OF THE POSTPONEMENT OF THE SURVEY.  THE UNION DENIED THE GRIEVANCE AND
 IT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUES AS FOLLOWS:
 
    DID THE UNION VIOLATE THE COLLECTIVE BARGAINING AGREEMENT BY
 DISTRIBUTING TO ITS MEMBERS IN
 
    ITS JULY 1978 NEWSLETTER, INSTRUCTIONS, DIRECTIONS AND COMMENTS
 PERTAINING TO THE SURVEY OF
 
    THE OJE PROGRAM?  DID THE NEWSLETTER INVALIDATE THE SURVEY?  IF SO,
 WHAT IS THE REMEDY?
 
    THE ARBITRATOR FIRST DISCUSSED THE SURVEY AND GENERALLY NOTED THAT
 THE ACTIVITY "HAD THE BASIC RIGHT TO COMMUNICATE WITH THE EMPLOYEES
 THROUGH A SURVEY OF THE OJE PROGRAM" AND THAT THE SURVEY "WAS NOT A
 SUBJECT FOR COLLECTIVE BARGAINING BECAUSE IT DID NOT PERTAIN TO
 PERSONNEL POLICIES AND PRACTICES OR TO MATTERS AFFECTING WORKING
 CONDITIONS." IN SUSTAINING THE ACTIVITY'S GRIEVANCE, THE ARBITRATOR
 DETERMINED THAT THE UNION'S ACTIONS HAD INVALIDATED THE SURVEY AND THAT
 SUCH ACTIONS VIOLATED THREE PROVISIONS OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  SPECIFICALLY, THE ARBITRATOR FOUND THAT THE UNION
 HAD VIOLATED THE AGREEMENT BY PREVENTING THE ACTIVITY'S EFFORT TO
 COMMUNICATE WITH ITS EMPLOYEES, BY DEFEATING THE ACTIVITY'S EFFORT TO
 MEASURE WHETHER EMPLOYEES WERE MAXIMIZING THEIR SKILLS AND KNOWLEDGE,
 AND BY RESORTING TO SELF-HELP TO OPPOSE THE SURVEY RATHER THAN UTILIZING
 THE GRIEVANCE PROCEDURE.  THE ARBITRATOR SPECIFICALLY REJECTED THE
 UNION'S CLAIM THAT THESE ACTIONS WERE "PROTECTED UNDER THE PRINCIPLE OF
 FREEDOM OF SPEECH." INSTEAD HE DETERMINED THAT THE NEWSLETTER EXCEEDED
 THE LIMITS AND BOUNDS OF PROTECTED EXPRESSION.  BECAUSE THE VIOLATIONS
 HAD RESULTED IN A DOCUMENTED LOSS OF $1,889.60 TO THE ACTIVITY, THE
 ARBITRATOR ALSO AWARDED COMPENSATORY DAMAGES TO THE ACTIVITY IN THAT
 AMOUNT.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /2/ THE AGENCY FILED AN OPPOSITION.  /3/
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT "(T)HE AWARD VIOLATES
 THE FIRST AMENDMENT RIGHTS OF THE UNION AND OF EMPLOYEES IN THE AREA OF
 FREE SPEECH." IN SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT THE
 NEWSLETTER ARTICLE WAS PROTECTED UNDER THE FIRST AMENDMENT OF THE UNITED
 STATES CONSTITUTION.  RELYING ON LETTER CARRIERS V. AUSTIN, 418 U.S.
 264(1974), AND THORNHILL V. ALABAMA, 310 U.S. 88(1940), THE UNION
 MAINTAINS THAT A LABOR ORGANIZATION'S RIGHT TO COMMUNICATE WITH ITS
 MEMBERS IN ORDER TO PROVIDE INFORMATION CONCERNING A LABOR DISPUTE IS
 PROTECTED EXPRESSION UNDER THE U.S. CONSTITUTION AND FEDERAL LABOR LAWS.
  CLAIMING THAT A LABOR DISPUTE EXISTED BETWEEN THE PARTIES OVER THE
 SURVEY, THE UNION ARGUES THAT THE NEWSLETTER ARTICLE WAS THEREFORE
 PROTECTED SPEECH.
 
    THE AUTHORITY FINDS THAT THE UNION HAS NOT DEMONSTRATED AND IT IS NOT
 OTHERWISE APPARENT IN WHAT MANNER THE ARBITRATOR'S AWARD VIOLATES FIRST
 AMENDMENT RIGHTS OF FREE SPEECH.  THE ARBITRATOR'S AWARD MERELY
 CONSTITUTED A RESOLUTION OF THE GRIEVANCE SUBMITTED TO HIM BY THE
 PARTIES IN ACCORDANCE WITH THEIR NEGOTIATED GRIEVANCE PROCEDURE.  IN
 RESOLVING THAT GRIEVANCE ON THE BASIS OF THE EVIDENCE PRESENTED AT THE
 HEARING, HE DETERMINED THAT THE UNION'S ACTIONS INTENTIONALLY
 INVALIDATED THE SURVEY, VIOLATED THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT, AND RESULTED IN A MONETARY LOSS TO THE ACTIVITY.
 FURTHERMORE, AS WAS NOTED, THE ARBITRATOR SPECIFICALLY REJECTED THE
 UNION'S CLAIM THAT ITS ACTIONS WERE PROTECTED EXPRESSION.  IN REFUSING
 TO SANCTION THE UNION'S ACTIONS AND IN FINDING A VIOLATION OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT, THE ARBITRATOR VIEWED THE
 UNION'S CONDUCT AS MUCH MORE THAN COMMUNICATION AND PUBLICITY OF ITS
 OPPOSITION TO THE SURVEY.  HE FOUND THAT THE UNION'S PUBLICATION
 INTENTIONALLY INTERFERED WITH THE ACTIVITY'S LEGITIMATE SURVEY OF THE
 OJE PROGRAM AND THAT THE CLEAR INTENT OF THE NEWSLETTER ARTICLE WAS TO
 INVALIDATE THE SURVEY.  THE ARBITRATOR DETERMINED THAT THIS CONCERTED
 ACTION ADVISED BY THE UNION EXCEEDED THE LIMITS AND BOUNDS OF FREEDOM OF
 SPEECH AND THAT CONSEQUENTLY THE UNION'S CONDUCT WAS NOT PROTECTED
 EXPRESSION.  IN THESE CIRCUMSTANCES THE CASES CITED BY THE UNION
 RECOGNIZING THE PROTECTION PROVIDED BY THE U.S. CONSTITUTION AND FEDERAL
 LABOR LAWS FOR COMMUNICATION AND PUBLICITY WITH RESPECT TO LABOR
 DISPUTES ARE THEREFORE CLEARLY DISTINGUISHABLE FROM THE AVOWED CONDUCT
 AND PURPOSE OF THE UNION IN THIS MATTER.  THUS, IN TERMS OF THIS CASE,
 THE UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD, FINDING
 THAT THE UNION'S ACTIONS VIOLATED THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT AND GRANTING COMPENSATORY DAMAGES TO THE ACTIVITY, IS CONTRARY
 TO THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION.  CONSEQUENTLY,
 THE UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT "(T)HE AWARD VIOLATES
 5 U.S.C. 7116(A)(1) AS AN INTERFERENCE IN THE INTERNAL AFFAIRS OF THE
 UNION." IN SUPPORT OF THIS EXCEPTION, THE UNION MAINTAINS THAT IT HAD
 THE RIGHT TO COMMUNICATE TO ITS MEMBERS THE JOB THREAT IT PERCEIVED FROM
 THE SURVEY AND THAT THE NEWSLETTER ARTICLE WAS PROTECTED AS AN INTERNAL
 UNION COMMUNICATION BECAUSE THE DISTRIBUTION WAS ONLY TO UNION MEMBERS
 AND ONLY TO THEIR HOMES.  THE SUBSTANCE OF THE UNION'S ASSERTIONS IS
 THAT, BY SUSTAINING THE ACTIVITY'S GRIEVANCE, THE AWARD IMPROPERLY
 RESTRAINS AND INTERFERES WITH THE FREE EXERCISE OF RIGHTS OF ACTIVITY
 EMPLOYEES AND THE UNION UNDER THE STATUTE.  HOWEVER, AS HAS BEEN
 EMPHASIZED, THE ACTIVITY IN THIS CASE FILED A GRIEVANCE IN ACCORDANCE
 WITH THE NEGOTIATED GRIEVANCE PROCEDURE CLAIMING THAT THE UNION VIOLATED
 THE COLLECTIVE BARGAINING AGREEMENT AND SEEKING DAMAGES FOR ITS MONETARY
 LOSS.  IN SUSTAINING THAT GRIEVANCE, THE ARBITRATOR EXPRESSLY FOUND THAT
 THE UNION'S ACTIONS WERE INTENDED TO AND DID INVALIDATE THE SURVEY AND
 WERE IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT.  THUS, THE
 AWARD IS BASED ON THE ARBITRATOR'S FINDING THAT THE UNION FAILED TO
 COMPLY WITH ITS COLLECTIVE BARGAINING AGREEMENT OBLIGATIONS AND
 COMMITMENTS AND THAT THE ACTION IT ADVISED ITS MEMBERS TO TAKE WAS MORE
 THAN COMMUNICATION AND PUBLICITY AND THEREFORE WAS NOT PROTECTED
 EXPRESSION.  IN THESE CIRCUMSTANCES, THE UNION FAILS TO ESTABLISH THAT
 THIS AWARD IMPROPERLY INTERFERE WITH ITS INTERNAL AFFAIRS OR IMPROPERLY
 RESTRAINS OR INTERFERES WITH RIGHTS ACCORDED THE UNION AND ACTIVITY
 EMPLOYEES BY THE STATUTE.  THEREFORE, THE UNION'S SECOND EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS THIRD EXCEPTION THE UNION CONTENDS THAT "(T)HE AWARD VIOLATES
 5 U.S.C. 7116(A)(5) BY RELIEVING (THE ACTIVITY) OF THE DUTY TO BARGAIN."
 IN SUPPORT OF THIS EXCEPTION, THE UNION ARGUES THAT THE ARBITRATOR'S
 RULING THAT THE ACTIVITY HAD THE RIGHT TO CONDUCT THE SURVEY WITHOUT
 NEGOTIATING WITH THE UNION VIOLATES SECTION 7116(A)(5) OF THE STATUTE.
 THE SUBSTANCE OF THE UNION'S ASSERTIONS IS THAT THE ARBITRATOR
 ERRONEOUSLY DETERMINED THAT THE ACTIVITY WAS NOT REQUIRED TO NEGOTIATE
 OVER THE SURVEY AND THEREFORE "RELIEVED" THE ACTIVITY OF A DUTY TO
 BARGAIN REQUIRED BY THE STATUTE.  IT IS CLEAR THAT THIS EXCEPTION IS
 PREDICATED ON THE ARBITRATOR'S AWARD CONSTITUTING A FINAL AND BINDING
 DETERMINATION THAT THE SURVEY COULD PROPERLY BE CONDUCTED WITHOUT
 NEGOTIATIONS WITH THE UNION.  BUT AS PREVIOUSLY STATED, THE ONLY ISSUES
 SUBMITTED TO ARBITRATOR WERE WHETHER THE UNION'S ACTIONS INVALIDATED THE
 SURVEY AND VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  IN
 RESOLVING PRECISELY THESE ISSUES ALONE, THE ARBITRATOR AS HIS AWARD
 RULED:
 
    THE GRIEVANCE OF AFLC IS SUSTAINED.  THE UNION VIOLATED THE AGREEMENT
 BY PUBLISHING ITS
 
    JULY 1978 NEWSLETTER WHICH HAD THE EFFECT OF INVALIDATING THE SURVEY
 OF THE OJE
 
    PROGRAM.  MONETARY DAMAGES IN THE AMOUNT OF $1,889.60 ARE AWARDED TO
 AFLC.  THE REMAINDER OF THE REMEDY SOUGHT BY THE AFLC IS DENIED.
 
    THUS, DESPITE THE ARBITRATOR'S DISCUSSION OF THE BARGAINING
 OBLIGATION AS TO THE SURVEY, THE ARBITRATOR'S RESOLUTION OF THE
 GRIEVANCE AND HIS AWARD IN NO MANNER CONCERN OR DEPEND ON A
 DETERMINATION OF THE ACTIVITY'S DUTY TO BARGAIN UNDER THE STATUTE.
 FURTHERMORE, BECAUSE AN ARBITRATION AWARD UNDER THE STATUE CANNOT
 RELIEVE AN AGENCY TO ITS STATUTORY DUTY TO BARGAIN, THE ARBITRATOR'S
 AWARD IN NO MANNER ALLOWS THE ACTIVITY TO AVOID ANY BARGAINING
 OBLIGATION IMPOSED BY THE STATUTE.  CONSEQUENTLY, THE UNION FAILS TO
 ESTABLISH THAT THE ARBITRAROR'S AWARD RELIEVED THE ACTIVITY OF ANY DUTY
 TO BARGAIN IT MAY UNDER THE STATUTE WITH RESPECT TO THE SURVEY.
 THEREFORE, THE UNION'S THIRD EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT.
 
    IN ITS FOURTH EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION, THE UNION REPEATS
 ITS ASSERTION THAT THE ARBITRATOR IMPROPERLY RULED THAT THE ACTIVITY HAD
 THE RIGHT TO CONDUCT THE SURVEY WITHOUT NEGOTIATING WITH THE UNION.  THE
 UNION ARGUES THAT THIS RULING WAS IN EXCESS OF THE ARBITRATOR'S
 AUTHORITY BECAUSE THE STATUTORY OBLIGATION TO BARGAIN CANNOT BE WAIVED
 BY THE ARBITRATOR'S AWARD AND BECAUSE THIS ISSUE WAS NOT PROPERLY BEFORE
 HIM.  HOWEVER, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  AS PREVIOUSLY EMPHASIZED, THE ARBITRATOR'S AWARD IN NO
 MANNER RESOLVED ANY ISSUE CONCERNING THE ACTIVITY'S DUTY TO BARGAIN AS
 TO THE SURVEY AND IN NO MANNER ABSOLVES THE ACTIVITY OF ANY OBLIGATION
 TO BARGAIN AS REQUIRED BY THE STATUTE.  CONSEQUENTLY, THE UNION FAILS TO
 DEMONSTRATE THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY AND ITS FOURTH
 EXCEPTION ACCORDINGLY PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS FIFTH EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON
 NONFACTS.  SPECIFICALLY, THE UNION MAINTAINS THAT THE ARBITRATOR FOUND
 THAT THE PARTIES TO THE COLLECTIVE BARGAINING AGREEMENT WERE SAN ANTONIO
 AIR LOGISTICS CENTER AND AFGE LOCAL 1617.  THE UNION ASSERTS THAT THIS
 IS A NONFACT BECAUSE IN JANUARY 1978, AFTER A UNIT CONSOLIDATED, THE
 NATIONAL OFFICE OF AFGE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF
 THE BARGAINING UNIT THAT INCLUDES THE EMPLOYEES OF THE ACTIVITY.  THE
 UNION ARGUES THAT THE ARBITRATOR'S ERROR IS CRITICAL BECAUSE THE
 ACTIVITY SOUGHT DAMAGES ONLY FROM LOCAL 1617 RATHER THAN THE NATIONAL
 OFFICE OF AFGE AND LOCAL 1617 WAS ONLY EXECUTING THE POLICY OF THE
 NATIONAL OFFICE.  THE UNION ALSO MAINTAINS THAT THE ARBITRATOR'S
 CONCLUSION THAT THE UNION'S ACTIONS WERE "ILLEGAL" IS A NONFACT BECAUSE
 THE SURVEY WAS VOLUNTARY AND THE UNION ONLY ADVISED EMPLOYEES NOT TO
 VOLUNTEER.  OTHER ALLEGED NONFACTS SPECIFIED BY THE UNION ARE THE
 ARBITRATOR'S DETERMINATIONS THAT THE UNION INVALIDATED THE SURVEY AND
 VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY WILL FIND AN
 ARBITRATION AWARD DEFICIENT WHEN IT IS DEMONSTRATED THAT THE CENTRAL
 FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND IN EFFECT IS A
 GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  E.G., UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, 2 FLRA NO. 60(1980).  HOWEVER, THE UNION FAILS TO DEMONSTRATE
 THAT THE AWARD IS DEFICIENT ON THIS BASIS.  IN PARTICULAR, THE UNION
 FAILS TO ESTABLISH THAT THE ARBITRATOR, IN SUSTAINING THE GRIEVANCE,
 MISAPPREHENDED THE EFFECT OF THE UNIT CONSOLIDATION FOR WHICH AT ALL
 RELEVANT TIMES THERE WAS NOT YET A COLLECTIVE BARGAINING AGREEMENT AT
 THE CONSOLIDATED LEVEL.  INSTEAD, THE UNION'S EXCEPTION ALLEGING
 NUMEROUS NONFACTS CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS OF FACT, HIS REASONING AND CONCLUSIONS, AND HIS
 INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT.  CONSEQUENTLY,
 THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  U.S.
 ARMY MISSILE MATERIEL READINESS COMMAND;  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 987 AND WARNER ROBINS AIR LOGISTICS
 CENTER, ROBINS AIR FORCE BASE, GEORGIA, 3 FLRA NO. 89(1980).
 
    IN ITS SIXTH EXCEPTION THE UNION CONTENDS, ON THE BASIS OF ARGUMENTS
 MADE IN SUPPORT OF OTHER EXCEPTIONS, THAT THE ARBITRATOR BASED HIS AWARD
 UPON A MISTAKE OF LAW.  SPECIFICALLY, THE UNION REFERENCES ITS ARGUMENTS
 THAT THE NEWSLETTER WAS PROTECTED EXPRESSION AND THAT THE ARBITRATOR
 MISAPPREHENDED THE EFFECT OF THE UNIT CONSOLIDATION.  HOWEVER, AS
 PREVIOUSLY INDICATED, IT HAS NOT BEEN ESTABLISHED IN TERMS OF THIS CASE
 THAT THE UNION'S ACTIONS WERE PROTECTED OR THAT THE ARBITRATOR
 MISAPPREHENDED THE EFFECT OF THE UNIT CONSOLIDATION.  THEREFORE, THE
 UNION'S SIXTH EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    IN ITS SEVENTH EXCEPTION THE UNION CONTENDS ON THE BASIS OF PRIOR
 ARGUMENTS THAT THE ARBITRATOR DID NOT DECIDE THE ISSUE BEFORE HIM.
 HOWEVER, AS PREVIOUSLY INDICATED, THE ISSUES SUBMITTED TO THE ARBITRATOR
 WERE WHETHER THE UNION'S ACTIONS INVALIDATED THE SURVEY AND VIOLATED THE
 COLLECTIVE BARGAINING AGREEMENT AND THE ARBITRATOR RESOLVED PRECISELY
 THESE ISSUES.  CONSEQUENTLY, THE UNION'S SEVENTH EXCEPTION PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS EIGHTH EXCEPTION THE UNION CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE AGREEMENT BECAUSE THE AGREEMENT PROVISIONS
 FOUND VIOLATED BY THE ARBITRATOR ONLY CONSTITUTE STATEMENTS OF PURPOSE
 AND RIGHTS WHICH ARE NOT SUBJECT TO BEING VIOLATED.  HOWEVER, THE UNION
 FAILS TO DEMONSTRATE IN ITS EXCEPTION THAT THE AWARD DOES NOT DRAW ITS
 ESSENCE FROM THE AGREEMENT.  INSTEAD, THIS EXCEPTION CONSTITUTES NOTHING
 MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND
 APPLICATION OF THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
 BEFORE HIM AND THEREFORE PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL
 BORDER PATROL COUNCIL AND U.S.  IMMIGRATION AND NATURALIZATION SERVICE,
 SOUTHERN REGION, DALLAS, TEXAS, 3 FLRA NO. 87(1980).
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 12, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1981), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ IN ITS OPPOSITION, IN ADDITION TO ADDRESSING THE SPECIFIC
 EXCEPTIONS SET FORTH BY THE UNION THE AGENCY ALSO CONTENDS THAT THE
 UNION'S EXCEPTIONS ARE PROCEDURALLY DEFICIENT FOR VARIOUS REASONS.
 HOWEVER, THE AUTHORITY FINDS NO BASIS FOR CONCLUDING THAT THE UNION'S
 EXCEPTIONS ARE DEFICIENT ON PROCEDURAL GROUNDS.