Parties: HHS, SSA, Office of Hearings and Appeals, Jackson, MS and AFGE, Local 3627 ID: 48 FLRA 607 / 48 FLRA No. 60 / 48:607(60)AR Date: September 30, 1993 Type: AR Volume: 48 Arbitrator: Bahakel CaseNo: O-AR-2438 ========== Synopsis ========== The Arbitrator denied the grievance of an employee who challenged her performance rating on a particular job element. The Authority concluded that the Union's exceptions provided no basis for finding the award deficient. The Authority construed the Union's arguments that the Arbitrator "disregarded" the "explicit terms of the contract" as an assertion that the award did not draw its essence from the agreement. However, the Authority found that the Union had not shown that the award failed to draw its essence from the agreement. The Authority also rejected the Union's contention that the Arbitrator was biased. ******************************************************* Parties: Dept. of the Navy, Long Beach Naval Shipyard, Long Beach, CA and Federal Employees Metal Trades Council ID: 48 FLRA 612 / 48 FLRA No. 61 / 48:612(61)AR Date: September 30, 1993 Type: AR Volume: 48 Arbitrator: Steinberg CaseNo: 0-AR-2428 ========== Synopsis ========== The Arbitrator denied a grievance alleging that the Agency's administration of its merit promotion program contravened Federal laws, rules, and regulations and the parties' collective bargaining agreement. The Arbitrator found that the matter was not arbitrable under the parties' agreement. The Authority concluded that the Union's exceptions provided no basis for finding the award deficient. As to the first exception, the Authority concluded that the Union failed to establish that the award was deficient on the ground that the Arbitrator exceeded his authority. As to the second exception, the Authority found nothing in the record that demonstrated that the award was contrary to any law, rule, or regulation. Lastly, the Union argued that the Arbitrator's award was contrary to sound public policy because it allowed management to continue to ignore pertinent laws, rules, and regulations pertaining to promotions and personnel practices. The Authority concluded that the Union failed to demonstrate how the award contravened public policy. ******************************************************* Parties: Dept. of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, IL and AFGE ID: 48 FLRA 620 / 48 FLRA No. 62 / 48:620(62)RO Date: October 1993 Type: RO Volume: 48 Arbitrator: CaseNo: CH-RO-20043 ========== Synopsis ========== The Activity sought review of the Regional Director's (RD's) Decision and Order and Direction of Election, directing an election in a unit of all non-professional, General Schedule employees of the Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois. The Authority denied the application for review after concluding that there were no compelling reasons within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. The Authority found that the RD's conclusion, that the non-professional employees of the Executive Office of Immigration Review, Office of the Chief Immigration Judge, Chicago field office constituted an appropriate unit within the meaning of the Statute, was supported by the record and consistent with Authority precedent. The Authority found that the issue of whether the Management Officer was a supervisor was not presented to the RD, and that the issue was raised for the first time in the application for review. The Authority held, therefore, that it would not consider such argument The Authority noted that an application for review may not raise any issue or allege any facts not timely presented to the Regional Director. The Authority also found that the RD did not make errors on substantial factual issues and that it did not depart from Authority precedent. The Authority also concluded that the RD did not misapply precedent in concluding that the proposed unit would promote effective dealings with, and efficient operations of, the Activity. ******************************************************* Parties: National Association of Agriculture Employees and Dept. of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine ID: 48 FLRA 639 / 48 FLRA No. 63 / 48:639(63)NG Date: October 7, 1993 Type: NG Volume: 48 Arbitrator: CaseNo: 0-NG-2143 ========== Synopsis ========== This case concerned the negotiability of one proposal relating to overtime entitlement. The Authority found that the proposal was nonnegotiable. The Authority concluded that requiring the Agency to pay employees overtime compensation for 8 hours of Sunday overtime in circumstances where they did not actually performed 8 hours' work was inconsistent with 7 U.S.C.  2260. ******************************************************** Parties: AFGE, Local 4042 and DOD, Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas ID: 48 FLRA 646 / 48 FLRA No. 64 / 48:646(64)AR Date: October 8, 1993. Type: AR Volume: 48 Arbitrator: Allen, Jr. CaseNo: 0-AR-2448 ========== Synopsis ========== The Arbitrator denied a grievance alleging that the Agency improperly refused to negotiate a local supplemental agreement with the Union. The Authority concluded that the Union's exceptions failed to establish that the award was deficient. The Authority rejected the Union's contention that the award was deficient insofar as the Arbitrator held that the grievance was untimely filed. The Authority noted that the Union's exceptions constituted disagreement with the Arbitrator's conclusion that the grievance was untimely filed under the relevant provision of the parties' collective bargaining agreement. ******************************************************* Parties: Dept. of the Air Force, 90th Missile Wing (SAC), F.E. Warren AFB, Cheyenne, WY and AFGE, Local 2354 ID: 48 FLRA 650 / 48 FLRA No. 65 / 48:650(65)CU Date: OCTOBER 8, 1993 Type: CU Volume: 48 Arbitrator: CaseNo: DE-CU-20016 ========== Synopsis ========== The petition before the Regional Director (RD), sought to clarify the bargaining unit for which the American Federation of Government Employees, Local 2354 (AFGE) was the exclusive representative to exclude employees classified as flexible employees. The RD clarified the unit to include the flexible employees. The Authority found, however, that the Activity did not establish any basis for review of the RD's Decision and Order. The Authority noted that the Activity had not shown that a substantial question of law or policy had been raised by the RD's decision because of a departure from Authority precedent, and had not shown that the RD's decision on any substantial factual issue was clearly erroneous and that such error prejudicially affected the rights of the Activity. Accordingly, the Authority denied the application for review. ******************************************************* Parties: National Border Patrol Council, Local 2913 and Dept. of Justice, INS Border Patrol ID: 48 FLRA 657 / 48 FLRA No. 66 / 48:657(66)AR Date: October 8, 1993 Type: AR Volume: 48 Arbitrator: Macpherson CaseNo: 0-AR-2493 ========== Synopsis ========== The Union filed a grievance seeking to reverse the grievant's 5-day suspension for alleged misconduct in giving careless and negligent testimony in a proceeding in Federal court. The Arbitrator sustained the grievance and ordered the Agency to rescind the grievant's suspension, restore his salary and benefits, and remove materials relating to his suspension from his personnel file. Additionally, the Arbitrator denied the Union's request that the backpay include interest. The Authority concluded that the portion of the award denying interest on the backpay was deficient because it was contrary to law. The Authority modified the award to provide for the payment of interest on the backpay award. The Authority noted that under the Back Pay Act, 5 U.S.C.  5596(b), as amended, an employee who is found to have been subjected to an unwarranted personnel action that has resulted in a withdrawal or reduction in compensation is entitled to interest on any backpay award. ******************************************************* Parties: Dept. of Justice, FBI and AFGE, Local 3652 ID: 48 FLRA 660 / 48 FLRA No. 67 / 48:660(67)AR Date: October 8, 1993 Type: AR Volume: 48 Arbitrator: Alexander CaseNo: 0-AR-2444 ========== Synopsis ========== The Arbitrator sustained a grievance regarding the grievant's use of sick leave, for which a 5-day suspension was imposed. The Authority concluded that the Agency's exceptions provided no basis for finding the award deficient. The Authority concluded that the Agency failed to support the contention that the award did not draw its essence from the agreement. The Authority also rejected the Agency's assertions that the Arbitrator was limited to determining the reasonableness of the penalty and that the case should be remanded to enable the Arbitrator to decide whether the grievant was obligated to call in on July 8. ******************************************************* Parties: DOI, Redwood National Park, Crescent City, CA and Thomas R. Dore and NFFE, Local 2091 ID: 48 FLRA 666 / 48 FLRA No. 68 / 48:666(68)DR Date: October 12, 1993 Type: DR Volume: 48 Arbitrator: CaseNo: SF-DR-30039 ========== Synopsis ========== The Regional Director (RD) found that the current collective bargaining agreement between the Activity and the Incumbent did not contain clear and unambiguous language setting forth the effective date of the agreement so as to constitute a bar to the processing of a representation petition. Therefore, the RD found that the petition filed by the Petitioner was timely filed and he directed an election among employees in the unit. The Incumbent sought review of the RD's decision. The Authority concluded that there were no compelling reasons within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. ******************************************************* Parties: Dept. of the Army, Camp Stanley Storage Activity, San Antonio, TX and AFGE, Local 3961 ID: 48 FLRA 672 / 48 FLRA No. 69 / 48:672(69)AR Date: October 14, 1993 Type: AR Volume: 48 Arbitrator: Dunham CaseNo: 0-AR-2425 ========== Synopsis ========== The Arbitrator sustained a grievance contesting the grievant's performance appraisal rating. The Arbitrator found that the Agency violated the parties' collective bargaining agreement by improperly evaluating the grievant's performance. The Arbitrator directed the Agency to raise the performance appraisal rating to exceptional. The Authority concluded that the Agency's exceptions provided no basis for finding the award deficient. The Authority noted that the award satisfied the two-prong test governing the remedial authority of arbitrators in performance appraisal matters that had been established in 30 FLRA 1156