American Federation of Government Employees, Local 1770, AFL-CIO (Union) and Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, N.C. (Activity) (Authority decision, July 30, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders 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 Fort Bragg employee sought leave without pay to attend a union meeting. The arbitrator read the agreement as leaving that leave to the activity’s discretion and denied the grievance. The Authority found no showing that this reading conflicted with the Federal Personnel Manual or other law. It sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance denial upheld.
• Key point: Disagreement with an arbitrator’s reading of a discretionary leave clause did not invalidate the award.

Full text (FLRA public release)

[ v06 p348 ]

06:0348(62)AR

The decision of the Authority follows:

6 FLRA No. 62

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
(AFL-CIO) LOCAL 1770
Union

and

HEADQUARTERS XVIII
AIRBORNE CORPS AND
FORT BRAGG, FORT BRAGG, N.C.
Activity

Case No. O-AR-162

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR J. RALPH BEAIRD FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR, THIS MATTER INVOLVED A DISPUTE BETWEEN
THE ACTIVITY AND THE UNION AS TO WHETHER THE GRIEVANT WAS ENTITLED,
UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, TO HAVE THE OPTION
OF TAKING LEAVE WITHOUT PAY RATHER THAN ANNUAL LEAVE TO ATTEND A UNION
MEETING. UNABLE TO RESOLVE THE DISPUTE, THE PARTIES SUBMITTED THE
FOLLOWING ISSUE TO ARBITRATION:

DID (THE ACTIVITY) VIOLATE THE COLLECTIVE BARGAINING

AGREEMENT WHEN IT DENIED GRIEVANT'S OCTOBER 29, 1979 REQUEST FOR
LEAVE WITHOUT PAY?

THE CONTRACT PROVISION INVOKED BY THE GRIEVANT AND BEFORE THE
ARBITRATOR WAS ARTICLE XVII, SECTION 2 WHICH PROVIDES:

SECTION 2. THE UNION MAY DESIGNATE EMPLOYEE MEMBERS AS ELECTED OR
APPOINTED

REPRESENTATIVES TO A UNION ACTIVITY NECESSITATING A LEAVE OF ABSENCE.
UPON WRITTEN

NOTIFICATION TO THE EMPLOYER BY THE UNION, SUCH EMPLOYEES MAY BE
GRANTED ANNUAL LEAVE OR LEAVE

WITHOUT PAY PROVIDED HE CAN BE SPARED WITHOUT UNDUE INTERRUPTION TO
THE OPERATION OF THE

ORGANIZATIONAL ELEMENT IN WHICH HE IS EMPLOYED.

THE ARBITRATOR FOUND THAT "(T)HE LANGUAGE OF THIS PROVISION IS CLEAR"
AND THEREFORE, DUE TO ITS "DISCRETIONARY CHARACTER," THE GRIEVANT "WAS
NOT ENTITLED, OF RIGHT, TO HIS REQUEST FOR LEAVE WITHOUT PAY ON OCTOBER
29, 1979." THEREFORE, THE ARBITRATOR DENIED THE GRIEVANCE.

THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
THE AGENCY FILED AN OPPOSITION.

IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD IS
CONTRARY TO THE FEDERAL PERSONNEL MANUAL (FPM). IN SUPPORT OF THIS
EXCEPTION THE UNION ASSERTS THAT THE FPM PROVIDES AN EXAMPLE OF A
SITUATION, SIMILAR TO THE FACTS IN THIS CASE, IN WHICH IT IS PROPER TO
APPROVE LEAVE WITHOUT PAY. FURTHER, THE UNION ARGUES THAT THE OPTION OF
UNION REPRESENTATIVES TO USE EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY
"HA(D) NEVER BEEN QUESTIONED BY MANAGEMENT" BEFORE THE GRIEVANCE IN THIS
CASE AND THAT THE ARBITRATOR FAILED TO CONSIDER RELEVANT FEDERAL LABOR
RELATIONS AUTHORITY DECISIONS. /2/

THE AUTHORITY FINDS THAT THE UNION HAS FAILED TO DEMONSTRATE THAT THE
ARBITRATOR'S AWARD, FINDING THAT GRANTING LEAVE WITHOUT PAY UNDER THE
AGREEMENT WAS DISCRETIONARY WITH THE ACTIVITY, IS CONTRARY TO THE FPM.
THUS THE UNION HAS NOT DEMONSTRATED HOW THE FEDERAL PERSONNEL MANUAL OR
THE CITED AUTHORITY DECISIONS ARE IN ANY MANNER RELEVANT TO THE
ARBITRATOR'S AWARD IN THIS CASE. THE SOLE QUESTION PLACED BEFORE THE
ARBITRATOR, AND ADDRESSED BY HIM, INVOLVED A DISPUTE AS TO HOW A CERTAIN
PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT SHOULD BE
INTERPRETED. THE UNION'S EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
ARBITRATOR'S INTERPRETATION OF THAT PROVISION OF THE AGREEMENT, WHICH
DOES NOT PROVIDE A BASIS FOR FINDING AN AWARD DEFICIENT. RED RIVER ARMY
DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-52, 3
FLRA NO. 32(1980). ACCORDINGLY, THE UNION'S EXCEPTION PROVIDES NO
BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
AWARD.

ISSUED, WASHINGTON, D.C., JULY 30, 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.

/2/ THE UNION CITES GENERAL SERVICES ADMINISTRATION, REGION 9,
FEDERAL PROTECTIVE SERVICE DIVISION, SAN FRANCISCO, CALIFORNIA AND
INTERNATIONAL FEDERATION OF FEDERAL POLICE, LOCAL 41, 3 FLRA NO.
22(1980), AND DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER,
NEWPORT NAVAL BASE AND FEDERAL UNION OF SCIENTISTS AND ENGINEERS,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144, 3 FLRA NO.
64(1980).