[ v34 p342 ]
34:0342(65)AR
The decision of the Authority follows:
34 FLRA NO. 65
U.S. IMMIGRATION AND NATURALIZATION SERVICE
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1917
0-AR-1653
(33 FLRA 885)
DECISION
January 18, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the award
of Arbitrator John P. Finan filed by the American Federation of
Government Employees, Local 1917 (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. The Union's exceptions were dismissed initially as
untimely filed U.S. Immigration and Naturalization Service and
American Federation of Government Employees, Local 1917, 33 FLRA
843 (1988). The Union then filed a motion for reconsideration,
contending that its exceptions were timely filed. The Union's
motion for reconsideration was granted in U.S. Immigration and
Naturalization Service and American Federation of Government
Employees, Local 1917, 33 FLRA 885 (1989), and the case was
reopened for further processing. The U.S. Immigration and
Naturalization Service (the Agency) subsequently filed an
opposition to the Union's exceptions.
An employee grieved the Agency's denial of her request that
the Agency: (1) convert annual leave taken by the grievant to
conduct official Union business to official time; and (2) give
the grievant compensatory time for time spent on weekends
performing Union duties. The Arbitrator denied the grievance.
For the reasons that follow, we concluded that the Union has
failed to establish that the award is deficient on any of the
grounds set forth in section 7122(a) of the Statute. Accordingly,
we deny the exceptions.
II. Background and Arbitrator's Award
The grievant is the chief executive officer of the Union.
The grievant requested that the Agency convert annual leave taken
by her on July 6 and 13, 1987 "for the conduct of official
(Union) business to official time." Award at 2. The grievant also
requested that she be granted a total of 24 hours of compensatory
time for time spent on weekends--July 4 and 11, 1987--conducting
official Union business. Id.
The Agency denied the grievant's requests and the matter was
submitted to arbitration. After the parties were unable to agree
on the issue, the Arbitrator stated the issue as: "1) whether the
annual leave taken on July 6 and 13 should be converted into
official time and 2) whether compensatory time should be granted
for Union activities on July 4 and 11?" Id. at 6.
The Agency stated that the parties' collective bargaining
agreement provides that official time must be requested and
approved in advance. The Agency argued that because the grievant
failed to comply with the procedure for requesting official time,
the grievant's request that her annual leave be converted into
official time could not be granted. The Agency contended that it
is unlawful to grant compensatory time for Union activities
conducted during hours outside the grievant's normal hours of
work. Id.
The Union argued that the Agency had engaged in a "pattern
of conduct" which resulted in the denial of the grievant's
requests for official time. Id. at 7. The grievant argued that
the Agency "repeatedly failed to process her requests." Id. The
grievant asserted that the Agency's inaction effectively denied
the grievant's requests for official time. The grievant asserted
that she was required to use annual leave and work during weekend
hours to conduct the Union's business, given the Union's
deadlines and time constraints. When questioned by the Arbitrator
whether her complaint was limited to the alleged denials of
official time in July 1987 or whether it concerned the Agency's
policy on granting requests for official time, the grievant
stated that she was objecting to the Agency's ongoing policy
concerning the processing of requests for official time. Id. at 5
and 7.
The Arbitrator stated that although the grievant complained
of an ongoing agency policy concerning requests for official
time, he was "constrained to limit the issue to the four days in
July cited in the grievant's complaint." Id. at 5. The Arbitrator
found that the grievant had failed to prove that the Agency
violated the parties' collective bargaining agreement. The
Arbitrator stated that:
(the grievant's) claim for conversion of annual leave to
official time is apparently based on the theory that the Agency
is obliged to do so because they have violated the Agreement by
failing to process her request for official time to conduct Union
business on July 6 and 13, 1987. However Grievant has produced no
evidence to support that claim. . . . Her position apparently is
that such an offer is unnecessary because of the pattern of
conduct of the Agency in treating her requests. This theory must
be rejected on two grounds. First, grievant did not prove such a
pattern and second such a pattern would not support relief for
the two days in question absent proof that grievant had requested
official time for those particular days and that her request had
been improperly handled.
Id. at 8-9 (emphasis in original). The Arbitrator stated
that the "grievant failed to prove that she requested official
time for those days and obviously a request not made could not be
processed improperly and the Arbitrator so finds. Given that
finding the Arbitrator must deny the grievance requesting
conversion of annual leave to official time for July 6 and 13."
Id. at 10.
The Arbitrator also found that the grievant failed to
establish her claim for compensatory time. The Arbitrator stated
that apart from the question of whether a grant of compensatory
time for the performance of representational activity is legal,
"there is a contractual impediment to the grant of the
grievance." Id. at 10. The Arbitrator found that the parties'
agreement provided that official time will be granted only during
regular duty hours and that the grievant offered no evidence that
the work she performed on July 4 and 11 was during regular duty
hours. The Arbitrator stated:
Grievant's theory in support of her claim that she is
entitled to compensatory time for conducting representational
activities on off-duty time apparently is that she was forced
to do so because of the Agency's improper handling of
her requests for official time. The premise on which that theory
is based was not proved: grievant has failed to prove that the
Agency has failed to process the requests properly . . . .
Consequently, the Arbitrator need not address the question
whether, had grievant proved the premise of her theory, she would
be entitled to compensatory time for representational activities
on July 4 and 11. Grievant has not proven her case for
compensatory time and the Arbitrator so finds.
Id. at 10-11 (citation omitted).
The Arbitrator concluded that the grievant failed to
establish her claim for official time and compensatory time and
denied the grievance. Id. at 11.
III. Positions of the Parties
A. Union's Exceptions
The Union states that the Arbitrator's award "denies what
was not requested either as remedy by the Union or to be denied
by the Agency(.)" Exceptions at 1. The Union contends that the
Arbitrator's findings and award are not "limited to the confines
of the parties' request." Id. The Union states that "(t)he
grievant did not assert that there were requests for release from
operations to representation on dates certain of July 6 and July
13 specifically." Id. The Union argues that the grievant showed
that "there were numerous requests outstanding for time
anytime(.)" Id. The Union also asserts that it "showed patterns
of . . . the Agency's on-going (collective bargaining agreement)
violations in failing to authorize official time to conduct Union
representation." Id. The Union also disputes the Arbitrator's
finding that the grievant offered no evidence that the
representational activities performed on July 4 and 11, 1987 were
performed during regular duty hours.
B. Agency's Opposition
The Agency contends that the exceptions should be dismissed
because "the Union has not alleged, much less established, that
the arbitrator's award is deficient for any of the reasons set
forth in 5 U.S.C. 7122(a)(.)" Agency Opposition to Exceptions
(Opposition) at 1. The Agency argues that the Union's exceptions
constitute mere disagreement with the Arbitrator's determination
concerning the issue before him, his rulings at the
hearing, his findings of fact and fact and his interpretation of
the parties' collective bargaining agreement. The Agency contends
that the Union's exceptions do not provide a basis for finding
the award deficient. Id. at 2-5.
IV. Discussion
The Union contends that the Arbitrator's award is not
limited to the issues presented to the Arbitrator. We interpret
the contention as a claim that the Arbitrator exceeded his
authority by deciding an issue which was not before him. We find
that the Union's exceptions fail to establish that the Arbitrator
exceeded his authority.
An arbitrator's award will be found deficient as in excess
of the arbitrator's authority when the arbitrator resolves an
issue not submitted to arbitration. Air Force Space Division, Los
Angeles Air Force Station, California and American Federation of
Government Employees, AFL - CIO, Local 2429, 24 FLRA 516 (1986).
However, when the parties cannot agree on a statement of the
issue, an arbitrator does not exceed his authority when he
formulates and decides the issue himself. Id. at 518-19. See also
American Federation of Government Employees, Local 3954 and
Federal Bureau of Prisons, Federal Correctional Institution,
Phoenix, Arizona, 32 FLRA 782 (1988).
In this case, the parties were unable to agree on the issue.
The parties submitted their views of the issue(s) to the
Arbitrator and the Arbitrator framed the issue(s). See Award at
4-6; Brief for the Union at 1 (Attachment to Exceptions); and
Opposition at 2. In the absence of a stipulated issue, the
Arbitrator was free to formulate the issue(s) and extend his
award to matters that necessarily arise from his formulation of
the issue(s). The Union's exception that the award is not limited
to the issues presented to the Arbitrator merely constitutes
disagreement with the Arbitrator's formulation of the issues and
provides no basis for finding the award deficient. See Air Force
Space Division, 24 FLRA at 519.
We also reject the Union's exceptions to the Arbitrator's
factual findings and his evaluation of the evidence submitted by
the grievant at the hearing. The Union's contentions that the
grievant showed that there were numerous requests for official
time pending before the Agency and that the grievant demonstrated
a pattern of on-going violations of the parties' agreement do not
state a ground on which the Authority will review an award. Accordingly,
these contentions provide no basis for finding
the award deficient. See Social Security Administration, Data
Operations Center, Albuquerque, New Mexico and American
Federation of Government Employees, Local 3512, 33 FLRA 134
(1988).
V. Decision
The Union's exceptions are denied.