INS El Paso Border Patrol Sector and AFGE National Border Patrol Council Local 1929 (Authority decision, June 30, 1987)

Final FLRA decision. The Authority denies the Border Patrol sector's exceptions to an arbitration award granting official time for union representation and directing a leave-balance adjustment if leave was used. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A union representative at the El Paso Border Patrol sector requested eight hours of official time and a schedule change so he could perform representational activities while on duty. Management denied the requests. An arbitrator found that denying the schedule change violated the agreement and directed an adjustment to the employee's leave balance. The sector argued that no leave had actually been used and that restoration would violate the Back Pay Act. The Authority denied the exceptions, explaining that the award requires no leave restoration if none was used.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Agency's exceptions denied; official-time and conditional leave-adjustment award remains in place.
• Key point: The award did not require restoring leave that the employee had not used.

Full text (FLRA public release)

[ v27 p949 ]
27:0949(103)AR

The decision of the Authority follows:

27 FLRA NO. 103

U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, EL PASO BORDER PATROL
SECTOR, EL PASO, TEXAS

Activity
and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, NATIONAL
BORDER PATROL COUNCIL, LOCAL 1929,
EL PASO, TEXAS

Union

Case No. O-AR-1340

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Alfred G. Albert filed by the Activity 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 filed an opposition. 1

II. Background and Arbitrator's Award

The Arbitrator identified the issues in this case as whether management violated the parties' collective bargaining agreement when it denied the grievant's request for 8 hours of official time to perform certain representational activities and his request to change his work schedule so he could perform the activities when he otherwise would be in a duty status. The Arbitrator noted that the grievant had originally been scheduled for leave, but requested a change in his work schedule when the representational activities could not be rescheduled. He concluded that the Activity improperly denied the grievant's request to change his work schedule. As his award, the Arbitrator determined that the grievant was entitled to the amount of official time requested and that the denial was contrary to the agreement. He directed the Activity to adjust the grievant's leave balance accordingly.

III. Discussion

The Activity contends that the Arbitrator's "belief, that the grievant performed the representational activities while on leave is erroneous and that consequently the Arbitrator's direction that the Activity "adjust (the grievant's) leave balance accordingly, is contrary to the Back Pay Act since there is no leave to be restored.

We conclude that the Activity 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, American Federation of Government Employees, AFL - CIO, New York - New Jersey Council of District Office Locals, Social Security Administration and Department of Health and Human Services, Social Security Administration District Office Operations, 7 FLRA 413, 417 (1981) (assertion that the Arbitrator's interpretation of an official time provision of the parties' collective bargaining agreement was based on a "nonfact", constituted nothing more than disagreement with the Arbitrator's interpretation of the agreement and provided no basis for finding the award deficient); Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12 FLRA 49 (1983) (exception contending that an award of backpay if overtime work was available was contrary to the Back Pay Act was not deficient as alleged because if no overtime was available, the award did not require any payment and was not violative of the Back Pay Act). In this case, if the grievant did not use leave to perform the representational activities for which official time was improperly denied, there is no leave to restore. Accordingly, the Activity's exceptions are denied.

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

Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In its opposition, the Union contends that the Activity's exceptions which were timely filed should be dismissed as untimely because the Activity did not serve the Union with copies of the attachments to the exceptions within the 30-day period for filing exceptions. However, consistent with established practice of the Authority, the Activity was granted a specified period of time in which to cure the deficiency of the failure to serve the attachments. Because the deficiency was cured within the period specified, the exceptions are properly before the Authority and will not be dismissed. In addition, no basis is provided for rejecting the attachments because they fail to constitute a complete record of the hearing and constitute "new and material evidence" as the Union alleges. We find that the attachments were appropriately submitted as evidence which the Activity asserts supports its exceptions to the award.