Immigration and Naturalization Service, Department of Justice, U.S. Government (Agency) and American Federation of Government Employees, Local No. 1656 (Union)

 



[ v07 p549 ]
07:0549(83)AR
The decision of the Authority follows:


 7 FLRA No. 83
 
 IMMIGRATION AND NATURALIZATION
 SERVICE, DEPARTMENT OF JUSTICE,
 U.S. GOVERNMENT
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL NO. 1656
 Union
 
                                            Case No. O-AR-81
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ERNEST E. MARLATT FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE AGENCY FILED ON OPPOSITION.  /2/
 
    ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN AFGE LOCAL 1656
 FILED A GRIEVANCE WITH THE ACTIVITY, THE SAN ANTONIO DISTRICT OFFICE,
 ALLEGING CERTAIN SAFETY VIOLATIONS UNDER THE NATIONALLY NEGOTIATED
 COLLECTIVE BARGAINING AGREEMENT.  /3/ THE ACTIVITY REJECTED THE
 GRIEVANCE ON THE BASIS THAT ONLY LOCAL 1243 COULD FILE GRIEVANCES ON
 BEHALF OF THE ACTIVITY'S EMPLOYEES UNDER THE TERMS OF THE AGREEMENT.
 /4/ THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.  WHILE
 REFUSING TO PARTICIPATE IN THE SELECTION OF THE ARBITRATOR, THE ACTIVITY
 APPEARED AT THE HEARING TO SUBMIT EVIDENCE ON THE JURISDICTIONAL
 QUESTION.
 
    THE ARBITRATOR STATED THE "THRESHOLD ISSUE OF ARBITRABILITY" AS
 FOLLOWS:
 
    THE QUESTION PRESENTED IN THIS CASE IS WHETHER LOCAL 1656 IS ENTITLED
 TO STATUS AS "THE UNION" WITHIN THE MEANING OF THIS ARTICLE.
 
    THE ARBITRATOR FOUND THAT UNDER ARTICLE 33 OF THE AGREEMENT, IF A
 SETTLEMENT OF A GRIEVANCE IS NOT REACHED UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, "SUCH GRIEVANCE, UPON WRITTEN REQUEST BY THE UNION, MAY BE
 SUBMITTED TO ARBITRATION." HOWEVER, HE REJECTED THE UNION'S ARGUMENT
 THAT SINCE THE AGREEMENT RECOGNIZES THE NATIONAL COUNCIL OF IMMIGRATION
 AND NATURALIZATION SERVICE LOCALS (THE COUNCIL) AS THE BARGAINING AGENT
 FOR ALL INS EMPLOYEES, AND SINCE LOCAL 1656 IS AFFILIATED WITH THE
 COUNCIL, THE ACTIVITY MUST ACCORD IT RECOGNITION AND ACCEPT LOCAL 1656'S
 GRIEVANCES UNDER THE AGREEMENT.  THE ARBITRATOR FOUND THAT UNDER THE
 EXPRESS TERMS OF THE AGREEMENT, AND IN KEEPING WITH THE LONG BARGAINING
 HISTORY BETWEEN THE PARTIES WHEREBY THE LEVEL OF RECOGNITION HAS NEVER
 EXTENDED BELOW THE DISTRICT LEVEL, THE INS IS ENTITLED TO DEAL WITH A
 SINGLE LOCAL UNION AT EACH AGREED UPON LEVEL OF REPRESENTATION.
 SPECIFICALLY, THE ARBITRATOR FOUND THAT THE AGREEMENT, AFTER AFFORDING
 NATIONAL RECOGNITION TO THE COUNCIL FOR ALL NON-EXCLUDED INS EMPLOYEES,
 MADE "REFERENCES TO UNION-MANAGEMENT INTERFACE AT NATIONAL, REGIONAL AND
 DISTRICT LEVELS (BUT) . . . NO EXPRESS PROVISIONS (ARE) IN THE AGREEMENT
 FOR MEETINGS BELOW THESE LEVELS."
 
    THEREFORE, THE ARBITRATOR CONCLUDED:
 
    LOCAL 1656 IS NOT "THE UNION" AS THE TERM IS USED IN ARTICLE 33 OF
 THE AGREEMENT INSOFAR AS
 
    THAT ARTICLE CONFERS RIGHTS TO SUBMIT GRIEVANCES TO ARBITRATION.
 ONLY LOCAL 1243 HAS BEEN
 
    RECOGNIZED AS THE BARGAINING AGENT FOR THE NON-EXCLUDED EMPLOYEES OF
 THE SAN ANTONIO
 
    DISTRICT.  SINCE LOCAL 1243 IS NOT A PARTY TO THE REQUEST FOR
 ARBITRATION, THE ARBITRATOR
 
    LACKS JURISDICTION TO RENDER A DECISION ON THE MERITS OF THE
 GRIEVANCE.
 
    THE ARBITRATOR THEREFORE, AS HIS AWARD, DISMISSED THE GRIEVANCE
 "WITHOUT PREJUDICE."
 
    IN ITS EXCEPTION THE UNION CONTENDS THE AWARD VIOLATES THE STATUTE BY
 INTERFERING WITH THE UNION'S STATUTORY RIGHT TO DESIGNATE ITS OWN
 AGENTS.  THE UNION ALSO CONTENDS THE AWARD DENIES BARGAINING UNIT
 EMPLOYEES THEIR RIGHT TO CHOOSE THEIR OWN REPRESENTATIVE AND THAT THE
 AWARD IS ILLEGAL BECAUSE IT ALLOWS THE EMPLOYER TO REFUSE TO BARGAIN
 COLLECTIVELY.
 
    THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE ISSUE PRESENTED TO THE ARBITRATOR INVOLVED AN
 INTERPRETATION OF THE PROVISIONS OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT WHICH ESTABLISHED WHO COULD FILE GRIEVANCES ON BEHALF OF
 EMPLOYEES IN THE BARGAINING UNIT UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE.  IN ADDRESSING THIS ISSUE, THE ARBITRATOR DETERMINED THAT,
 UNDER THE TERMS OF THE AGREEMENT, LOCAL 1243 AND NOT LOCAL 1656 IS "THE
 UNION" RECOGNIZED FOR PURPOSES OF FILING LOCAL GRIEVANCES UNDER THE
 NATIONALLY NEGOTIATED COLLECTIVE BARGAINING AGREEMENT.
 
    IN ESSENCE THE UNION'S EXCEPTION CHALLENGES THE ARBITRATOR'S
 INTERPRETATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND HIS
 RULING THAT THE PROCEDURAL REQUIREMENTS FOR FILING A GRIEVANCE HAD NOT
 BEEN COMPLIED WITH.  IT IS WELL ESTABLISHED THAT AN ARBITRATOR'S
 INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT IS NOT SUBJECT TO
 REVIEW.  E.G., UNITED STATES ARMY MISSILE MATERIAL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858,
 AFL-CIO, 2 FLRA NO. 60(1980).  FURTHER, QUESTIONS OF WHETHER THERE HAS
 BEEN COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF A NEGOTIATED
 GRIEVANCE PROCEDURE ARE QUESTIONS FOR RESOLUTION BY AN ARBITRATOR.
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA,
 GEORGIA AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1907, 5 FLRA
 NO. 36(1981).  THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE AND
 SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTION IS D