U.S. Federal Labor Relations Authority

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29:1285(100)AR - SSA, Office of Hearings and Appeals, Kansas City, MO and AFGE Local 1336 -- 1987 FLRAdec AR

[ v29 p1285 ]
The decision of the Authority follows:

29 FLRA NO. 100
 29 FLRA 1285

 30 OCT 1987






Case No. 0-AR-1358


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Chandler F. Fizer filed by the Union under
section 7122(a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. 1

     II. Background and Arbitrator's Award

     The grievance arose when the grievant, a Union steward, was
granted official time for representational activities in the
Union's office but was denied official time for travel to and
from the office, which was located in a different building. She
was required to use part of her lunch period and 15 minutes of
annual leave for the travel. The issue before the Arbitrator was
whether the Activity thereby violated the parties' National
Agreement and section 7116(a)(1), (5) and (8) of the Statute. The
Union alleged that under the Statute, the agreement and a
past practice at the Activity, the steward was entitled to
official time for the time spent in travel.

     The Arbitrator found that the Union steward was not
automatically entitled to official time for her travel under
section 7131 of the Statute and that the parties' agreement did
not provide for official time for the travel. The Arbitrator also
determined that the Union failed to establish the existence of a
past practice at the Activity of always granting official time
for the travel of Union representatives. The Arbitrator noted the
Activity's stated policy that it does grant official time to
Union representatives for travel to and from the Union office if
the representational activity involved cannot be performed at the
work site or by telephone. The Arbitrator concluded that the
Activity's action was not contrary to section 7131 of the
Statute, the parties' agreement or past practice at the Activity.
The Arbitrator further found that he was without authority to
decide the Union's 7116(a) allegation because such unfair labor
practice allegations were for the Authority to adjudicate.
Accordingly, as his award, the Arbitrator denied the grievance.

     III. Analysis and Conclusions

     In its exceptions, the Union contends that the evidence
presented to the Arbitrator did not support his Conclusions
concerning official time at the Activity. The Union asserts that
the evidence established that official time had always been
granted to Union stewards for travel and that the Activity
unilaterally changed that long-standing practice in this case.
The Union further asserts that the Arbitrator ignored or did not
properly consider the exhibits and testimony it presented and
that his conduct showed that he was biased in favor of the

     We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth
in section 7122(a) of the Statute; that is, that the award is
contrary to any law, rule or regulation, or that the award is
deficient on other grounds similar to those applied by Federal
courts in private sector labor-management relations cases. See,
for example, Local 1919, American Federation of Government
Employees and Veterans Administration National Cemetery,
Farmingdale, Long Island, New York, 12 FLRA  605 (1983) (a
contention which merely constitutes disagreement with the
arbitrator's evaluation of evidence and testimony 
provides no basis for finding an award deficient); Veterans
Administration and American Federation of Government Employees,
Local 997, 8 FLRA  238 (1982) (an assertion that the arbitrator
was guilty of misconduct but which constitutes disagreement with
the arbitrator's evaluation of the testimony and evidence
presented at the hearing and an attempt to relitigate the merits
of the grievance before the Authority provides no basis for
finding an award deficient). Accordingly, the Union's exceptions
are denied.

     In denying the exceptions, we note that the Arbitrator erred
in finding that he was without authority to decide the Union's
allegation that the Activity violated section 7116(a) of the
Statute. Section 7103(a)(9) of the Statute defines the term
"grievance" broadly to include "any claimed violation . . . of
any law . . . ." Thus, an employee or union may allege in a
grievance that an agency violated any law, including the Statute.
Indeed, section 7123 of the Statute contemplates the arbitration
of such grievances by precluding judicial review of Authority
decisions in arbitration cases, unless the decision involves an
unfair labor practice under the Statute. See, for example, AFGE,
Local 1923 v. FLRA,  615 F.2d 612 (4th Cir. 1983); Tonetti v.
FLRA,  776 F.2d 929 (11th Cir. 1985); United States Department of
Justice, Bureau of Prisons v. FLRA,  792 F.2d 25 (2d Cir. 1986).
See also Overseas Education Association v. FLRA  and National
Treasury Employees Union v. FLRA,  824 F.2d 61 (D.C. Cir. 1987).
How-ever, exceptions to the Arbitrator's erroneous finding were
not filed and the Authority does not find it necessary in the
circumstances of this case to take any action under section
7122(a) of the Statute.

     Issued, Washington, D.C., October 30 1987.

     Jerry L. Calhoun, Chairman

     Henry B. Frazier, Member

     Jean McKee, Member



     Footnote 1 The Union also filed "amended" exceptions. To the
extent that such amendment raises new exceptions not raised in
its original submission, the exceptions are untimely under
section 7122(b)   of the Statute and section 2425.1(b) of the
Authority's Rules and   Regulations and have not been