Department of the Air Force, Los Angeles Air Force Station, California (Activity) and American Federation of Government Employees, Local 2429 (Union)

 6 FLRA No. 112
 
 DEPARTMENT OF THE AIR FORCE
 LOS ANGELES AIR FORCE STATION,
 CALIFORNIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2429
 Union
 
                                            Case No. O-AR-144
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR DONALD A. ANDERSON FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE REQUEST OF TWO UNION OFFICIALS FOR FORTY HOURS EACH OF
 ADMINISTRATIVE LEAVE FOR LABOR RELATIONS TRAINING WAS DENIED BY THE
 ACTIVITY.  A GRIEVANCE WAS FILED WHICH WAS SUBMITTED TO ARBITRATION ON
 THE ISSUE OF WHETHER THE GRIEVANTS WERE ENTITLED TO HAVE BEEN GRANTED
 ADMINISTRATIVE LEAVE FOR THE TRAINING.
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY WAS NOT PROHIBITED FROM
 DENYING THE REQUESTED LEAVE.  HE FOUND THAT ARTICLE X, SECTION C OF THE
 PARTIES' AGREEMENT WAS CONTROLLING AND THAT IT CLEARLY PROVIDED NO
 ENTITLEMENT TO THE REQUESTED LEAVE.  IN ADDITION, HE REJECTED THE
 UNION'S ARGUMENT OF THE EXISTENCE OF A PAST PRACTICE PURSUANT TO WHICH
 THE GRIEVANTS WOULD HAVE BEEN ENTITLED TO THE REQUESTED ADMINISTRATIVE
 LEAVE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 5 CFR PART 2425.  THE AGENCY FILED AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
 ARBITRATOR GAVE MANAGEMENT AN UNFAIR ADVANTAGE BY PERMITTING MANAGEMENT
 TO FILE ITS POST-HEARING BRIEF AFTER THE ESTABLISHED DEADLINE WHEN THE
 UNION'S BRIEF WAS TIMELY FILED.  THE UNION ARGUES THAT THIS ACTION GAVE
 MANAGEMENT AN UNFAIR ADVANTAGE BY ALLOWING IT TO SUBMIT ARGUMENTS BASED
 ON THE AWARD OF ANOTHER ARBITRATOR WHICH WAS NOT ISSUED UNTIL AFTER THE
 DEADLINE FOR FILING BRIEFS.  THE UNION FURTHER ARGUES THAT THIS ACTION
 UNFAIRLY AND IMPROPERLY ALLOWED MANAGEMENT TO INTRODUCE THROUGH ITS
 BRIEF ARTICLE II OF THE AGREEMENT AS A NEW ISSUE.  HOWEVER, THE UNION
 HAS NOT DEMONSTRATED IN WHAT MANNER THE AWARD IS DEFICIENT AS A RESULT
 OF THE ARBITRATOR'S ACCEPTANCE OF MANAGEMENT'S BRIEF IN THE
 CIRCUMSTANCES OF THIS CASE.  THE ARBITRATOR SPECIFICALLY ADDRESSED THE
 UNION'S ARGUMENT THAT THE BRIEF SHOULD NOT BE CONSIDERED BECAUSE IT WAS
 UNTIMELY.  IN ACCEPTING THE BRIEF, THE ARBITRATOR EXPLAINED THAT THE
 BRIEFS WERE IN LIEU OF PAROL EVIDENCE AND WERE FOR HIS CONVENIENCE AS
 WELL AS THE PARTIES.  HE FURTHER EXPLAINED THAT THE BASIC POSITIONS OF
 THE PARTIES HAD ALREADY BEEN PRESENTED AND SET FORTH AT THE EARLIER
 HEARING.  THE UNION HAS FAILED TO ESTABLISH THAT THE ARBITRATOR'S
 DECISION TO ACCEPT THE BRIEF RESULTED IN AN UNFAIR HEARING.  AS HIS
 AWARD THE ARBITRATOR RULED THAT NEITHER ARTICLE X, SECTION C OF THE
 PARTIES' AGREEMENT NOR ANY PAST PRACTICE ENTITLED THE GRIEVANTS TO THE
 REQUESTED ADMINISTRATIVE LEAVE.  THUS, CONTRARY TO THE UNION'S
 ASSERTIONS, NEITHER THE OTHER ARBITRATION AWARD NOR ARTICLE II OF THE
 AGREEMENT INFLUENCED THE ARBITRATOR'S AWARD TO AN UNFAIR ADVANTAGE FOR
 THE ACTIVITY.  INSTEAD, THE ARBITRATOR PLAINLY STATED THAT "THE
 FOLLOWING FINDINGS AND RULING WAS NOT COMPELLED BY EITHER ARTICLE II,
 SECTION A, AND/OR (THE OTHER) AWARD, BUT BY THE PROFFERED EVIDENCE AS
 RELEVANT TO THE PARTIES' (AGREEMENT)." CONSEQUENTLY, THIS EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD WAS NOT
 BASED ON THE EVIDENCE BUT RATHER ON TWO LABOR RELATIONS TEXTBOOKS.
 HOWEVER, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S
 AWARD DEFICIENT.  AS NOTED, THE ARBITRATOR EXPRESSLY BASED HIS AWARD ON
 "THE PROFFERED EVIDENCE AS RELEVANT TO THE PARTIES' (AGREEMENT)."
 MOREOVER, IT IS WELL ESTABLISHED THAT ARBITRATORS MAY PROPERLY DRAW FROM
 ANY RELEVANT SOURCE AS AN AID IN INTERPRETING A COLLECTIVE BARGAINING
 AGREEMENT.  DELAWARE NATIONAL GUARD, WILMINGTON, DELAWARE AND
 ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER, 5 FLRA NO.
 9(1981).
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 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.