Judge / Administrative Officer

Transcription

1 106 LRP U.S. Department of Homeland Security, Customs and Border Protection, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local FLRA 741 Federal Labor Relations Authority 61 FLRA No AR-3986 September 11, 2006 Related Index Numbers 1.25 Authority and Duties, Determination of Arbitrability Authority and Duties, Determination of Arbitrability, Arbitrators 1.29 Authority and Duties, Remedial Powers Authority and Duties, Remedial Powers, Arbitrators 4.2 Federal Laws and Programs 4.8 Government-Wide Regulations 44.1 Compensation Compensation, Wages and Salaries Compensation, Wages and Salaries, Premium Pay 47.8 Grievance Arbitration Awards Grievance Arbitration Awards, Review Grievance Arbitration Awards, Review, Grounds Grievance Arbitration Awards, Review, Grounds, Violation of Law Grievance Arbitration Awards, Review, Grounds, Does Not Draw Its Essence From the Agreement Grievance Arbitration Awards, Review, Grounds, Based on a Nonfact Grievance Arbitration, Arbitrability, Procedural Issues Arbitrator, Authority Judge / Administrative Officer Dale Cabaniss, Chairman and Carol Waller Pope, Member Ruling The FLRA rejected all agency exceptions to the award of an arbitrator who concluded that the agency violated the agreement when it executed a policy that would affect the premium pay entitlement of union officers using official time for part of a day. Meaning The arbitrator's procedural arbitrability finding was not subject to challenge nor were her factual findings. The remedy was consistent with the issues argued by the parties, and the arbitrator did not therefore exceed her authority. Case Summary The grievant was entitled to premium pay for administratively uncontrollable overtime. The percentage of base pay is arrived at by determining an employee's weekly average number of incontrollable hours. Activities such as leave and training, if taking an entire day, are excluded from the computation. A union steward used official time to represent an employee at a late afternoon grievance meeting. He was ordered by his supervisor not to exclude that day from the computation because it was not a full day. After ruling the grievance arbitrable, the arbitrator found the agency violated the agreement by declaring any day when union officers use official time for part of the day a non-excludable day. While recognizing that other employees may not exclude a day when they are at work part of the time, the arbitrator concluded the agreement treats union representatives as a protected class. The agreement provided that no union representative would suffer a loss of pay for any use of official time. The FLRA rejected the agency's essence of agreement claim, finding that the arbitrator rationally explained how the grievant could suffer a long term loss of pay as a result of the agency's action. Copyright 2013 LRP Publications 1

2 The award was not based on a non-fact, the FLRA ruled. Whether the grievant was ordered by his supervisor not to exclude the day or whether it was controlled by a national policy was disputed before the arbitrator and therefore not subject to challenge. The ruling was not contrary to law, the FLRA declared. The arbitrator concluded the grievant suffered harm and ordered a remedy consistent with that finding. The arbitrator found the grievant experienced no immediate loss of pay and did not order a back pay remedy. Finally, the arbitrator did not exceed her authority by awarding relief to persons not encompassed within the grievance. The FLRA found the remedy consistent with the issues placed before the arbitrator, and she made a factual finding that the grievance encompassed all union representatives. Full Text Decision I. Statement of the Case This matter is before the Authority on exceptions to an award of Arbitrator Sylvia Marks-Barnett filed by the Agency under 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency exceptions. The Arbitrator concluded that the grievance was arbitrable and that the Agency violated the parties' collective bargaining agreement (CBA) by informing a Union representative on official time for part of the day that he could not claim that day as an excludable day for purposes of computing the individual's Administrative Uncontrollable Overtime (AUO) entitlement. For the reasons that follow, we deny the Agency's exceptions. II. Background and Arbitrator's Award The Agency is a national organizational subdivision of the legacy Department of Justice, the United States Immigration and Naturalization Service (INS), (now known as the Department of Homeland Security, Custom and Border Protection). The Agency is divided into 21 nationwide border patrol sectors, one of which is El Paso, Texas (El Paso). El Paso consists of 12 border patrol stations, including, the Ysleta Texas Border Patrol station (Ysleta) where the instant dispute arose, which concerns AUO. AUO, which is authorized by 5 U.S.C. 5545(c)(2), is a system for compensating employees with premium pay for irregular unscheduled overtime. See Award at 5. AUO is authorized for employees who hold "a position in which the hours of duty cannot be controlled administratively and which requires substantial amounts of irregular or occasional overtime work, with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty." Id. (quoting 5 C.F.R ). Border Patrol Agents are one category of Federal officers eligible to earn AUO. AUO pay is computed by application of a formula based on the number of AUO hours worked over a period of time to compute a weekly average of AUO hours. See id. at 6. The computation is applied on a sliding scale so that if an employee averages: (1) at least three, but not more than five, hours of AUO per week, the employee receives 10% of his/her base pay; (2) between five and seven hours per week, 15%; (3) between seven and nine hours per week, 20%; and (4) nine or more hours, 25%. See id. Where an employee is off work for holidays, sick or annual leave, training, etc., with no opportunity to perform AUO, it would penalize the employee to include the "off hours in computing the weekly average. See id. Thus, the concept of "excludable days" is applied, whereby time spent on leave or engaged in other activities, such as training, are excluded from the number of workdays used to compute the daily average of AUO hours. See id. As relevant here, the grievant, a Border Patrol Agent, attended a Step II meeting as Union representative for a unit employee. The Agency scheduled the meeting for 3:30 p.m. at Ysleta. The Copyright 2013 LRP Publications 2

3 grievant left his work location at El Paso at 2:00 p.m. to travel and meet with the employee prior to the meeting, which, itself, lasted until 4:34 p.m. After the meeting, the grievant spent time with the employee before returning home. His shift ended at 5:00 p.m. that day. The grievant's supervisor "ordered" him not to claim the day as excludable for AUO purposes. Id. at 8. This order resulted in a grievance that claimed that the supervisor's action violated Article 7D of the parties' CBA. * At a Step II meeting on the grievance, the Agency's designee on the matter and a labor/management relations (LMR) representative, whose presence the Union objected to, attended. At the Step III meeting on the grievance, the Union incorporated a claim that the Agency violated Article 33E of the CBA by having the LMR representative present at the Step II meeting. As the parties were unable to resolve the grievance, it was submitted to arbitration on the following issues as agreed to by the parties: [W]hether the Union's Article 7D claim was timely filed; if not whether that claim should be forwarded to national level arbitration; and whether the Union's Article 33E claim was properly filed. [W]hether the Agency violated Article 7D; whether the Agency violated Article 33E; and, if [so], what is the appropriate remedy. Award at 2. On the arbitrability issues, the Agency argued that the grievance concerned the application of its AUO policy. The Agency asserted that since the Agency revised and issued its AUO policy in January 2000, the Union should have filed the grievance within 30 days of that date rather than in February The Arbitrator determined that the grievance concerned the Agency's action in ordering the grievant not to claim January 29, 2001 as an excludable day and not the AUO policy. The Arbitrator stated that contrary to the Agency's argument, "in this [g]rievance, the triggering event is the order from [the supervisor] to the [g]rievant to not claim January 29, 2001 as an excludable day." Id. at 11. Accordingly, the Arbitrator found that the grievance was timely filed. Next, the Arbitrator addressed the Agency's claim that the grievance was not filed at the proper level. The Arbitrator found that Article 33J of the parties' CBA "requires a grievance to be filed at the level where the action being grieved was initiated." Id. The Arbitrator rejected the Agency's claim that the grievance should have been filed at the national rather than the local level because it concerned an Agency policy promulgated at the national headquarters, finding that the action grieved addressed the action by local management at El Paso in denying the grievant's request for an excludable day. She found, therefore, that the grievance was properly filed at the local level. The Arbitrator addressed whether the Union's Article 33E claim was properly before her. The Arbitrator noted that the Union raised this claim for the first time at Step III, which the Agency argued was improper because it bypassed filing the claim as a new grievance at Step I. The Arbitrator found that under "Article 33H, the Agency is obligated to observe time limits and procedures[,]" including "the procedure, as enumerated in Article 33E, Step II, as to who will attend the meeting." Id. at 12 (emphasis in original). The Arbitrator thus found that the claim was properly before him. Based on the above, the Arbitrator found that the grievance was procedurally arbitrable. As to the merits, the Union claimed that Article 7D "requires that [a]gents engaged in representational activities, even for less than a full eight-hour day, receive an excludable day for that time." Id. The Arbitrator determined that the "controlling language [of Article 7D] is found in the first sentence^]" which provides that "Union representatives will not suffer any loss of pay, allowances or penalty." Id. at 13 (emphasis in Award). The Arbitrator stated that this sentence "says 'any' and it means just that, not a fraction of a percentage, not any." Id. The Arbitrator rejected the Copyright 2013 LRP Publications 3

4 Agency's argument that the grievant did not suffer any loss of pay since application of the AUO formula showed the impact on the grievant to be de minimis. The Arbitrator noted that the Agency has exclusive control over the amount of time that will be spent on official duty per day and that this control had to be balanced against the "expressed CBA mandate to not cause any loss of pay, allowances." Id. According to the Arbitrator, to not do so would compound the resulting loss of opportunity to work AUO with a potential reduction in AUO pay and retirement benefits as well as "place a chill on engaging in representational activities." Id. at 14. The Arbitrator stated that "[w]hat is crucial in this case is that the official time was scheduled by the Agency at such a time so as to interfere with any opportunity to work AUO." Id. Noting language in Article 6, providing that "there shall be no restraint, interference, coercion or discrimination against employees engaged in representational activities[,]" the Arbitrator found that "Article 6, when taken together with Article 7, makes clear that the parties consider representational activities to be a protected class." Id. The Arbitrator found that Article 7 also provides economic protection to that class. The Arbitrator rejected the Agency's assertion that engaging in representational activities is like other activities, such as sick and annual leave, that require that a full day be spent on them before they are eligible for excludability. The Arbitrator rejected the Agency's contention that a 1975 DOJ Order and the revised 2000 AUO policy require Article 7D to mean that "Union representatives will not suffer any loss of pay, allowances, or other penalty for use of official time in units of a full day." Id. The Arbitrator found that when the current CBA became effective in 1975 there was nothing in the Order that conflicted with Article 7D. The Arbitrator further found that Articles 2 and 5 of the CBA left "no doubt that the parties agreed that as to any administrative manuals, the CBA supersedes and governs." Id. at The Arbitrator thus found that even if the revised AUO policy addressed official time, which he found it did not, Article 7D controls so that the use of official time does not have to be taken in units of a full day. The Arbitrator thus concluded that Article 7D "is clear and unambiguous" that the use of official time should not subject the employee to any loss of pay, allowance or penalty, even if that official time is for less than eight hours. Id. at 15. The Arbitrator stated that "[t]his means that scheduling official time to end at the end of the shift of the representational employee, even for less than eight hours, requires that the day be excluded from AUO calculations." Id. The Arbitrator further concluded that the Agency had not established that a past practice existed concerning excludability and the use of official time that modified Article 7D. Noting the Arbitrator's finding that the purpose of an AUO excludable day is to protect against a loss of opportunity to work AUO, the Agency argued that the grievant did not lose such an opportunity because the Step II meeting ended at 4:34 p.m., and since his shift did not end that day until 5:00 p.m., the grievant was obligated to advise his supervisor that he was returning to duty at El Paso, along with notifying him of the number of official time hours used and then return to duty. The Arbitrator rejected the Agency's argument, finding that the grievant would not have been able to return to El Paso before the end of his shift. The Arbitrator determined that the grievant was not available for AUO on the subject date, and thus the Agency violated Article 7D when the supervisor "ordered" the grievant to not claim an excludable day. Id. at 17. The Arbitrator next found that Article 33E "clearly states that at the Step II meeting, the Chief Patrol Agent or his designated representative will meet with the employee and that the employee's Union [representative may be present." Id. The Arbitrator found, therefore, that it was not appropriate for the LMR representative to be present at the meeting, and thus the Agency violated Article 33E by having such representative present over the Union's objection. The Arbitrator rejected the Agency's contention Copyright 2013 LRP Publications 4

5 that the scope of the grievance should be limited to the grievant. The Arbitrator found that the Union, in its Step II grievance, specifically asserted that the "scope of the grievance encompassed all Union representative[s] in the El Paso Sector who presently or in the past had been denied AUO excludability for work they were required to do as Union representatives for less than a full day at the end of their shifts." Id. at 18. The Arbitrator noted that the "Union did not ask for any direct relief for anyone other than the [g]rievant." Id. However, the Arbitrator concluded that, based on the evidence "together with the CBA's silence as to any requirement for a grievance to be signed and the identification of all individuals covered by the grievance all Union representatives in the El Paso Sector are encompassed" by the grievance. Id. As to the remedy, the Arbitrator noted that back pay is not the only remedy that an arbitrator can award. The Arbitrator found it was appropriate to fashion a remedy that will effectuate the purposes of Article 7D and 33E. Noting that Article 7D affords Union representatives economic protection while engaging in representational activities, the Arbitrator ordered the Agency, at El Paso, among other things, the following: (1) during the life of the CBA, to cease and desist from disregarding official time, even for less than a full eight hours, if taken at the end of the shift, for purposes of identifying excludable days for computing AUO; (2) to recalculate grievant's AUO pay, for January 29, 2001, allowing him to claim that day as an excludable day; (3) to post a notice; (4) to cease instructing any employee, serving as Union representative in an official capacity, to not claim an excludable day for AUO purposes, regardless of whether the official time is used in partial day or full day increments, as long as it occurs at the end of the employee's shift. As to Article 33E, the Arbitrator ordered the Agency to cease and desist from conducting any Step II grievance meetings with any grievant and his/her designated Union representative in the presence of any Agency representative other than the Chief Patrol Agent or his/her one designee. III. Positions of the Parties A. Agency's Exceptions The Agency contends that the award is deficient in numerous respects. The Agency first argues that the Arbitrator's procedural arbitrability determination, that the grievance was arbitrable at the local level, fails to draw its essence from the CBA. The Agency contends that the Arbitrator's refusal to allow the Agency to forward the grievance, pursuant to Article 33J, from the local to the national-level for arbitration is unfounded in reason and fact, does not represent a plausible interpretation of the CBA, and evidences a manifest disregard for the CBA. The Agency asserts that the Arbitrator "interpreted Article [33J] to allow the forwarding of grievances to the national level only where a headquarters management official was directly involved in the grieved action." Exceptions at 10. Referring to the 1975 DOJ order and the revised 2000 AUO policy, the Agency states that it has a "mandatory national policy describing when supervisors can allow AUO excludable days." Id. at 9. According to the Agency, the grievant's supervisor "testified that he denied [the g]rievant's request for an excludable day exclusively because the Agency's national AUO policy prohibited the granting of an excludable day in [his] situation[.]" Id. The Agency contends that this testimony as well as that of other Agency witnesses shows that its national policy mandated the denial. Therefore, according to the Agency, it was unreasonable for the Arbitrator to consider such denial a local action because such prohibition was initiated and directed entirely by the national headquarters and was "simply" carried out by local management. Id. at 10. Turning to the merits, the Agency asserts that the Arbitrator's finding that it violated Article 7D fails to draw its essence from the CBA. The Agency states that the Arbitrator concluded that Article 7D was designed to protect against harm to Union representatives for engaging in Union activities. Copyright 2013 LRP Publications 5

6 However, according to the Agency, the award conflicts with this purpose because the Arbitrator found a violation of this provision in the absence of any harm to the grievant or other Union member. Thus, the Agency asserts that the award evidences a manifest disregard for the Arbitrator's own understanding of the CBA. The Agency further contends that the Arbitrator's application of Article 7D to prospective situations is unfounded in reason and fact and disregards the purpose of this provision. The Agency also argues that the Arbitrator's decision that the grievant deserved an excludable day undermines the reason that excludable days are granted under Article 7D and shows the Arbitrator's manifest disregard for Article 7D. In that regard, the Agency asserts that the Arbitrator's conclusion that the grievant was not available for AUO on January 29, 2001 ignores the "undisputed facts" that the grievant finished his official time duties 26 minutes before the end of his shift, failed to contact his supervisor as he was required to do, and failed to return to his duty-post. Id. at 17. The Agency contends that an employee must be unavailable for AUO in order to receive an excludable day. The Agency contends that the Arbitrator's finding that Article 33E bars other Agency employees at Step II meetings does not draw its essence from the CBA because such finding is so unconnected to the wording of the CBA that it manifests an infidelity to the obligation of the Arbitrator. The Agency contends that a "plain reading of Article [33E] demonstrates that it is meant to compel the presence of a top Agency official at the meeting, not restrict who can participate." Id. at 22 (emphasis in original). The Agency next contends that the award is deficient because it is based on a nonfact, namely the Arbitrator's determination that the grieved action was the supervisor's order to the grievant not to claim an excludable day. The Agency contends that the supervisor "never ordered the [g]rievant to do anything or instructed him about what to claim on his timesheet; [the supervisor] simply informed the [g]rievant that his request was contrary to the Agency's national policy." Id. at 14. The Agency also claims that the Article 7D violation is based on a nonfact. According to the Agency, to support this violation, the Arbitrator had to find the grievant suffered some detriment from the denial of his request for an excludable day. The Agency states that there is no evidence that the grievant suffered any harm. The Agency contends that the Arbitrator's failure to require the Union to proffer evidence of harm regarding the Article 7D violation is "contrary to applicable FLRA law." Id. at 16. According to the Agency, the Union failed to produce any evidence of a loss of pay, allowances or other penalty. Such omission, in the Agency's view, "demonstrates the Union's failure to comply with applicable FLRA law requiring parties to submit such evidence in order to prove an Article [7D] violation." Id. The Agency contends that the Arbitrator "presumed harm and did not require the Union to make th[e] requisite evidentiary showing[ ]" (citing United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165 (2003) (BOP, FCI)).Id. at The Agency also claims that the remedy for the Article 7D violation is contrary to law because there is no evidence that the grievant "suffered any financial loss or other detriment" from the Agency's action. Id. at 23. In support, the Agency cites Servs. Employees Int'l Union, Local 556, AFL-CIO, 17 FLRA 862 (1985) (SEW). The Agency contends that the Arbitrator exceeded her authority by concluding that Article 33E "bar[s] other Agency employees at Step II meetings[.]" Id. at 19. The Agency asserts that by so concluding, the Arbitrator modified Article 33E, which "on its face," does not require such "limitation." Id. The Agency also contends that the award of relief to "all El Paso Union representatives" exceeds the Arbitrator's authority because the grievant and the Union limited their presentations on this matter to the grievant and did not identify any other unit employee for whom they were seeking relief. B. Union's Opposition Copyright 2013 LRP Publications 6

7 The Union asserts that the Agency's essence and nonfact exceptions challenging the level at which the grievance was arbitrated provide no basis for finding the award deficient and do nothing more than challenge the Arbitrator's procedural arbitrability determination. Moreover, the Union asserts that the Agency misconstrues the Arbitrator's interpretation of Article 33J. The Union further claims that the Agency's nonfact argument concerning the supervisor's order to the grievant is not supported by the evidence. The Union disputes the Agency's assertion that the Article 7D violation was based on a nonfact. Referring to its description of how AUO works, the Union contends that the weekly average for AUO is important because Government regulations base the amount of AUO pay on the average number of uncontrollable overtime hours worked each week and that the periodic re-computations of the weekly average of uncontrollable overtime determine whether the employee remains eligible for AUO, and if so, at what percentage of base pay. The Union also argues that the Agency's claim that there was no loss of pay was disputed before the Arbitrator and thus provides no basis for finding the award deficient as based on a nonfact. The Union asserts that the Authority should deny the contrary to law assertions concerning Article 7D because the Agency has not indicated what law or regulation was violated with respect to its claim that the evidence showed no loss to the grievant, and has not demonstrated that SEIU is controlling with respect to the remedy awarded. The Union contends that the award concerning Article 7D draws its essence from the CBA. The Union disputes the assertions that employees were not harmed by the Agency's actions, and that it was improper to apply the award to prospective situations. The Union also asserts that the Arbitrator's interpretation of Article 33E is in keeping with the language of this provision. Finally, the Union contends that the Agency has not shown that the Arbitrator exceeded her authority with respect to Article 33E or the remedy awarded. The Union asserts that the Arbitrator's findings show that the Union claimed during the grievance process that the grievance encompassed all Union representatives in the El Paso sector who presently or in the past have been denied AUO. The Union refers to attachments to the exceptions and notes that these documents show that the Union raised this matter in Step I and II of its grievance. IV. Analysis and Conclusions A. The Award Draws its Essence from the Parties' CBA 1. Procedural Issue The Agency argues that the Arbitrator's procedural arbitrability determination that the grievance was arbitrable at the local level fails to draw its essence from the parties' CBA. The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id.(citing AFGE Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id.; see also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE, Local 2921, 50 FLRA 184, (1995)). In its exception, the Agency contends that the Arbitrator's ruling finding that the Union's grievance was procedurally arbitrable at the local level fails to draw its essence from the agreement. This exception directly challenges the Arbitrator's procedural arbitrability ruling and does not contend that it is contrary to law or deficient for reasons that do not Copyright 2013 LRP Publications 7

8 directly challenge the determination itself. Accordingly, the exception provides no basis for finding this ruling deficient, and we deny this exception. See United States Dep't of Defense, Education Activity, 60 FLRA 254, 256 (2004). 2. Merits The Agency contends that the Arbitrator found a violation of Article 7D in the absence of any harm and thus the award fails to draw its essence from the CBA. In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The Authority defers to the arbitrator in this context because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576. In this case, the Arbitrator interpreted Article 7D and found that it provides that Union representatives will not suffer any loss of pay, allowances, or penalty for engaging in representational activities. The Arbitrator rejected the Agency's contention that the grievant did not suffer any harm, finding that not allowing the official time used by a Union representative, as in this case, to be excludable for AUO purposes would "compound the resulting loss of opportunity to work AUO with a potential reduction in AUO pay and retirement benefits" as well as "place a chill on engaging in representational activities." Award at 14. Further, to the extent that the Agency claims that the Arbitrator's decision ignores "undisputed facts" and thus shows a manifest disregard for Article 7D, such claim is construed as a nonfact claim, and for the reasons discussed below in Section III.B., does not constitute a basis for finding the award deficient. Accordingly, the Agency has failed to demonstrate that the Arbitrator's interpretation of the Article 7D of the CBA is irrational, unfounded, or implausible, or that it evidences a manifest disregard for the parties' CBA. The Agency's essence contention concerning Article 33E also does not provide a basis for finding the award deficient. The Arbitrator found that this provision states "in the singular, that at the Step II meeting "[t]he Chief Patrol Agent or his [or her] designated representative will meet with the employee" and that the "employee's Union representative may be present." Award at 5 and 17. The Arbitrator found that the meaning of the singular case used is that "only the Chief Patrol Agent or his designated representative will meet with the employee." Id. at 17. The Arbitrator determined, therefore, that it was not appropriate for the LMR Representative to be present at the meeting, absent agreement from the Union. The Agency argues a plain reading of this provision demonstrates that it meant to compel the presence of a top official at the meeting, not restrict who can participate. However, such argument does not demonstrate that the Arbitrator's interpretation of the Article 33E of the CBA is irrational, unfounded, or implausible, or that it evidences a manifest for the parties' CBA. B. The Award is not Based on a Nonfact To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of Homeland Sec., Customs & Border Prot. Agency, N.Y., N.Y., 60 FLRA 813, 816 (2005). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. At arbitration, the Arbitrator determined that the grievance complained of the "action of the Agency in ordering [the g]rievant to not claim January 29, 2001 as an excludable day[,]" and specifically found, that Copyright 2013 LRP Publications 8

9 such action was initiated by the grievant's supervisor at the local level when he "order[ed]" him to not claim the subject day as an excludable one. Award at 11. The Agency disputed this determination arguing that the grievance arose from its "national level, rather than by local El Paso [s]ector management." Id. As the Agency's contention concerning the supervisor's order was disputed at the arbitration hearing, the Agency's claim does not demonstrate that the award is based on a nonfact. See, e.g., AFGE, Local 2128, 58 FLRA 519, (2003). Similarly, the Agency's contention that there is no evidence that the grievant suffered any "harm" or that the "grievant was not available for AUO" on the day in dispute were disputed at the arbitration hearing, and thus provides no basis for finding the award deficient. See Award 13-14, 16 and 18. C. The Award is not Contrary to Law When a party's exceptions challenge an award's consistency with law, the Authority reviews the exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703,1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Agency claims that the Article 7D violation finding is "contrary to applicable FLRA law" because the Arbitrator failed to require the Union to offer some evidence of harm to make the "requisite evidentiary showing." Exceptions at 16. In support of this claim, the Agency cites to BOP, FCI, 59 FLRA 165, which dealt with an unfair labor practice allegation that discriminatory action was taken against a union representative who was engaged in protected activity. In particular, the Agency relies on the administrative law judge's finding in that case that the agency "failed to present any evidence of harm caused to [a particular] program[.]" Id. at 186. Upon examination of BOP, FCI, we find the Agency's argument unpersuasive. BOP, FCI involved a Judge's finding that the respondent there had to show some "harm" before being able to rely on an agreement provision that allowed the respondent to take certain actions in situations that would "endanger" staff or the security of the institution. Id. at 172. The Agency has not shown how the judge's determination in that case controls the Arbitrator's evaluation of the record herein in determining whether a contract violation has occurred. Moreover, the Arbitrator evaluated the record and found evidence of harm in that the grievant lost an opportunity to work AUO with a potential reduction of AUO pay and retirement benefits, which also placed a chill on Union representatives engaging in representational activities. Accordingly, we find the Agency has not established that the award is contrary to BOP, FCI. Further, to the extent that the Agency contends that the remedial relief awarded for the Article 7D violation is contrary to SEIU because there is no evidence that the grievant suffered any loss from the Agency's action, such case is distinguishable and, therefore, not controlling here. In this regard, in SEIU the Authority upheld a determination that a back pay remedy pursuant to the requirements of the Back Pay Act, was not warranted "noting particularly the [j]udge's conclusion that the 'weight of the evidence d[id] not indicate that intervention by the [u]nion would have resulted in the substantive relief sought by the grievant.'" 17 FLRA at 863. Here, the Arbitrator found the grievant "experienced no loss of pay" and thus provided no back pay remedy, the same result in SEIU. However, and unlike SEIU, the Arbitrator found the Agency violated the CBA by interfering with the grievant's opportunity to work AUO with a potential reduction of AUO pay and retirement benefits, and placing a chill on Union representatives engaging in representational activities. Award at 18. Thus, the Arbitrator's findings show that the grievant suffered harm as a result of the Agency's violation of the contract. Consistent with the authority of an arbitrator to fashion a remedy for such a Copyright 2013 LRP Publications 9

10 violation, the Arbitrator provided a remedy. Therefore, SEIU is not controlling. Accordingly, the Agency has not demonstrated that the award is contrary to SEIU. D. The Arbitrator Did Not Exceed her Authority An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In determining whether an arbitrator has exceeded his or her authority, the Authority accords an arbitrator's interpretation of a stipulated issue the same substantial deference accorded an arbitrator's interpretation of a collective bargaining agreement. See SSA, Baltimore, Md., 57 FLRA 181, 183 (2001); United States Info. Agency, Voice of Amer., 55 FLRA 197, (1999). In this case, the Agency contends that the Arbitrator exceeded her authority when she disregarded specific limitations on her authority. Specifically, the Agency contends that by concluding that the language in Article 33E "bar[s] other Agency employees at Step II meetings[,]" the Arbitrator modified Article 33E contrary to the parties' CBA, which prohibits modifications of provisions. Exceptions at 19. The Agency's exceeded authority exception is based on the same premise as its contention that the award fails to draw its essence from the parties' CBA, discussed above in Section IV., 2, above. Consistent with our conclusion that the award does not fail to draw its essence from the parties' CBA, in particular Article 33E, we also find that the Agency has not demonstrated that the Arbitrator exceeded her authority as it concerns this provision. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., 60 FLRA 506, 508 (2004). There is also no basis to conclude that the Arbitrator exceeded her authority by the scope of her remedy. The Agency contends that the Arbitrator's award of relief to "all El Paso [s]ector Union representatives" exceeds her authority. Exceptions at 24. Two issues before the Arbitrator was "whether the Agency violated Article 7D[,]" and "what is the appropriate remedy." Award at 2. The Arbitrator resolved the issue by finding that the Agency violated Article 7D. In doing so, the Arbitrator addressed the scope of the remedy, which the parties argued before her. The Agency argued, as it does now, that "[t]hroughout the grievance[,]" the grievant and the Union focused their presentation on the grievant. Id. at 24. However, the Arbitrator's factual findings and the record show that the Union in its Step II [g]rievance, as well as Step III, "asserted that the scope of the grievance encompassed all Union representatives in the El Paso [s]ector." Award at 18 and Exceptions, Jt. Exhs. 2 and 4. Thus, the Agency has not demonstrated that the Arbitrator awarded relief to persons who are not encompassed within the grievance. V. Decision The Agency's exceptions are denied. ARTICLE 2 Appendix Effect of Law and Regulation A. B. Should any conflict arise in the administration of this Agreement between the terms of this Agreement and any government-wide or agency rule or regulation such as the Federal Personnel Manual or Department of Justice Orders, Policy Letters, Manuals (other than a rule or regulation implementing 5 USC 2302), issued after the effective date of this Agreement, the terms of this Agreement will supersede and govern. C. In any conflict between the terms of this Agreement and any provisions of Service Orders, Policy Letters, Manuals, etc., regardless of date of issuance, the terms of the Agreement will govern. Copyright 2013 LRP Publications 10

11 ARTICLE 7 Use of Official Time A. Local Officials 4. Union officers and stewards will be authorized official time for all matters relating to the administration[ ] of this Agreement and labor-management relations matters, such as -- (a) investigation, preparation[ ], and representation in regard to grievances/arbitrations under the negotiated grievance and arbitration procedure. D. Union representatives will not suffer any loss of pay, allowances, or other penalty for use of official time. All official time, including travel to and from meetings, will be excludable for AUO purposes. ARTICLE 33 Grievance Procedure E. Step I: Informal grievances must be filed within thirty (30) calendar days after the incident occurs. Step II: If the employee is dissatisfied with the results of the oral presentation, he or she may file a formal written grievance. The employee or the Union shall set forth in precise terms exactly what the grievance is; all the facts relating thereto, including the names of any individuals or entities against whom the grievance is made; the pertinent Article(s) and Section(s) of this Agreement in dispute; the reason for dissatisfaction; and the corrective action desired. The employee will also furnish the name and address of any witness(es). The Chief Patrol Agent or his or her designated representative will meet with the employee. The employee's Union representative may be present, in duty status, at the discussion with the employee. J. Grievances will be filed at the level where the action being grieved was initiated. If management raises a valid argument that a grievance was filed at an improper level, the grievance will be considered timely if it was otherwise submitted in a timely manner, and will be forwarded to the level that the Agency designates as being responsible for the action being grieved. Award at 3, 4, and 5. * The pertinent text of the CBA is set forth in the Appendix to this decision. Statutes Cited 5 USC 5545 (c) Regulations Cited 5 CFR Cases Cited 59 FLRA FLRA FLRA FLRA FLRA FLRA FLRA FLRA FLRA FLRA F.3d FLRA FLRA FLRA FLRA FLRA 506 Copyright 2013 LRP Publications 11