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57 FLRA No. 53
U.S. Dept. of the Interior, National Park Service, Valley Forge National Historical ParkValley Forge, Pennsylvania and NAGE, Local R3-120 (Krendel, Arbitrator), 0- AR-3396 (Decided June 8, 2001)
The Arbitrator determined that under the parties' agreement the grievant was entitled to official time for assisting an employee in the preparation of an appeal before the Merit Systems Protection Board (MSPB). The Authority found that the Agency failed to establish that the award was deficient under § 7122(a) of the Statute.
Preliminarily, the Authority noted that under 5 C.F.R. § 2429.5 of its regulations, it will not consider evidence offered by a party that was not presented to the arbitrator. Accordingly, it did not consider the Agency's attached affidavit in reviewing the Arbitrator's award.
First, the Agency argued that the MSPB's regulations limit an appellant to choosing a single representative. However, the MSPB has allowed an appellant to be represented by more than one person. Accordingly, the Authority concluded that this argument was not persuasive.
The Authority also disagreed with the Agency's second argument that the grievant was never officially designated as the employee's representative for the MSPB appeal. It argued that absent this designation the grievant could not have been engaged in a representational function when he requested official time. The Authority noted that the Agency's argument assumed that in order to receive official time under these circumstances, the grievant had to be designated as the representative of record for the MSPB appeal. However, the Arbitrator's interpretation of the contract, to which the Authority deferred, did not find such designation necessary. Similarly, the cited MSPB regulation does not prohibit an agency from granting official time to a union representative assisting in the preparation of an MSPB appeal. Since the Agency did not contend that the award was contrary to any other law, rule, or regulation, the Authority denied this exception. The Authority also rejected the allegation that the award was based on a nonfact.