Federal Employees Metal Trades Council, AFL-CIO (Union) and Portsmouth Naval Shipyard (Activity)
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The decision of the Authority follows:
6 FLRA NO. 42
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Union and PORTSMOUTH NAVAL SHIPYARD Activity Case No. 0-AR-126
This matter is before the Authority on an exception to the award of Arbitrator Tim Bornstein 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 the dispute in this matter concerned alleged misassignments to details and temporary promotions in violation of the collective bargaining agreement and the Federal Personnel Manual. The grievances were denied by the Activity on the merits at each step of the procedure. Consequently, the Union requested arbitration. Pursuant to submission of the grievances to arbitration, the Activity contended that the grievances were substantively nonarbitrable.
In addressing the arbitrability issue the Arbitrator found that the agreement limited arbitrable disputes the only those involving the interpretation and application of the agreement. Thus, he noted that a policy or regulation must be incorporated into the agreement in order for a grievance concerning the policy or regulation to be arbitrable. The Arbitrator determined that, in this case, Article 23 of the agreement expressly incorporated by reference appropriate regulations dealing with promotions. Article 23 provides in relevant part:
Section 1. The Employer agrees to fill first level temporary and permanent ungraded supervisory and production [ v6 p253 ] facilitating positions in accordance with the Navy Merit Promotion Program and other existing applicable regulations. All eligible employees shall be given full consideration for these positions.
Therefore, the Arbitrator concluded that the grievance in this case were "probably arbitrable." However, the Activity argued that Article 23 only applied to "first level temporary and permanent ungraded supervisory" positions and that the positions in dispute in this case did not fall within that definition. Since the Union had not addressed Article 23 before the Arbitrator with respect to either the arbitrability dispute or the merits, the Arbitrator concluded that the appropriate way to handle the issue was to send the dispute back to the parties in an attempt to resolve the conflict. In doing so the Arbitrator presented to the parties the question of
whether Article 23's reference to "first level temporary and permanent ungraded supervisory and production facilitating positions" is relevant to the temporary positions referred to in the grievance.
The parties were still unable to resolve the matter and the issue was resubmitted to the Arbitrator. However, in doing so the Union conceded that the positions in dispute were not "first level temporary and permanent ungraded supervisory" positions. Finding, therefore, that there was "agreement between the parties on what (the Arbitrator) had viewed as the crucial remaining question in this case, viz., the possible relevance of Article 23, Section 1," and having previously found that Article 23 was the only provision which might have brought the grievance under the agreement, the Arbitrator, in light of the Union's concession, concluded that Article 23 was inapplicable and held that the grievance was not arbitrable.
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 did not file an opposition. [ v6 p254 ]
In its exception the Union contends that the Arbitrator "erred as a matter of law" in finding the grievance was not arbitrable. In support of this exception the Union asserts that the Activity waived its right to claim the grievance was nonarbitrable by failing to raise the issue prior to the arbitration. The Union further argues that the Arbitrator incorrectly concluded that Article 23 was the only provision which was applicable in this case. According to the Union, the grievance "makes a claim which on its face is governed by the contract," and, therefore, the Arbitrator's decision is an unreasonable interpretation of the parties' intention. Moreover, the Union alleges that the award renders the FPM and the Activity's instructions interpreting the FPM "totally ineffective."
While the Authority will find an award deficient on the ground that the award violates law, the Union in this case has in no manner shown how the Arbitrator's award is contrary to law. The Arbitrator concluded that the grievance was not covered by the