[ v13 p77 ]
The decision of the Authority follows:
13 FLRA No. 19 LOCAL 1917, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (Union) and UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, EASTERN REGION (Agency) Case No. O-AR-539 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Malcolm D. MacDonald 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 issue before the Arbitrator was whether granting the grievant's request, pursuant to Article 15, section D of the parties' agreement, for three days leave without pay (LWOP) per week to complete the balance of his law school studies would be consistent with the needs of the Service. /1/ The Arbitrator reasoned that the language "consistent with Service needs" in the agreement contemplated a fair, reasoned and objective balancing of all relevant considerations and concluded that management had failed to undertake the requisite examination of the needs of the Service in this case and had erred in denying the grievant's request. Accordingly, as his award, the Arbitrator determined that granting the grievant's request would be consistent with the needs of the Service and therefore that the request should be granted. In its exceptions, the Agency contends that the award violates management's right under section 7106(b)(1) of the Statute to determine "the numbers, types and grades of employees . . . assigned to any organizational subdivision, work project, or tour of duty" and is contrary to other law, rule or regulation, principally, Federal Personnel Manual (FPM) chapter 630. Upon careful consideration of the entire record before the Authority, including the contentions of the parties, the Authority concludes that the Agency has failed to establish that the award is deficient. With regard to the Agency's first exception, as noted, the parties negotiated and incorporated in their collective bargaining agreement the provision specifying the criterion on which management's decision on whether to grant LWOP for educational purposes would be based. Therefore, assuming but without deciding that the provision directly concerns a matter enumerated in section 7106(b)(1) of the Statute, the award is not contrary to section 7106(b)(1) because consistent with the terms of that section the Activity elected to bargain on the matter and agreed to the provision as part of its collective bargaining agreement. With regard to the Agency's exception alleging that the Arbitrator's award is contrary to law, rule or regulation, the Agency principally relies on FPM chapter 630, subchapter 12, which provides that the granting of LWOP is a matter of administrative discretion. However, because the Agency does not establish that the exercise of that administrative discretion by means of the provision negotiated by the parties is inconsistent with law, rule or regulation, no basis is provided for finding deficient the Arbitrator's award interpreting and applying that provision. See Northeastern Program Service Center, Office of Program Service Centers, Social Security Administration and American Federation of Government Employees, Local 1760, 7 FLRA No. 120 (1981); Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL-CIO, 7 FLRA No. 53 (1981). Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., September 23, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Article 15, section D of the parties' agreement provides, in pertinent part: Employees may be granted vacations within the normal workweek, including leave without pay, for educational purposes consistent with Service needs.