American Federation of Government Employees, Interdepartmental Local 3723, AFL-CIO (Respondent) and Department of the Navy, Navy Exchange, Naval Station, San Diego, California (Charging Party)

 



[ v08 p70 ]
08:0070(12)CO
The decision of the Authority follows:


 8 FLRA No. 12
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, INTERDEPARTMENTAL
 LOCAL 3723, AFL-CIO
 Respondent
 
 and
 
 DEPARTMENT OF THE NAVY
 NAVY EXCHANGE, NAVAL STATION
 SAN DIEGO, CALIFORNIA
 Charging Party
 
                                            Case No. 8-CO-6
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
 IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS.  EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER WERE
 FILED BY THE RESPONDENT.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
 ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE
 EXTENT CONSISTENT HEREWITH.
 
    THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT UNION
 VIOLATED SECTION 7116(B)(5) OF THE STATUTE BY REFUSING TO REFER A
 GRIEVANCE FILED BY THE ACTIVITY (CHARGING PARTY) TO ARBITRATION ON THE
 BASIS OF ITS CONTENTION THAT MANAGEMENT HAD NO RIGHT TO FILE A GRIEVANCE
 UNDER THE PARTIES NEGOTIATED AGREEMENT.  /1/ THE COMPLAINT FURTHER
 ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE STATUTE /2/
 BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF.  /3/
 
    THE JUDGE CONCLUDED THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED
 TO ARBITRATION VIOLATED SECTION 7116(B)(5) OF THE STATUTE.  HE FURTHER
 CONCLUDED THAT RESPONDENT'S REFUSAL TO SUBMIT THE THRESHOLD ISSUE OF
 ARBITRABILITY TO AN ARBITRATOR FOR RESOLUTION CONSTITUTED A FAILURE TO
 COMPLY WITH SECTION 7121 OF THE STATUTE AND WAS THEREFORE A VIOLATION OF
 SECTION 7116(B)(8).  THE AUTHORITY DISAGREES WITH THESE CONCLUSIONS.
 
    IN FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA
 NO. 23 (1981), DECIDED BY THE AUTHORITY AFTER THE JUDGE ISSUED HIS
 DECISION IN THIS CASE, THE AUTHORITY HELD THAT, IN THE PARTICULAR
 CIRCUMSTANCES OF THAT CASE, MANAGEMENT'S REFUSAL TO PERMIT ITS
 SUPERVISORS TO APPEAR AT AN ARBITRATION PROCEEDING AS REQUESTED BY THE
 UNION DID NOT VIOLATE SECTION 7116(A)(5) OF THE STATUTE.  THE AUTHORITY
 ADDITIONALLY CONCLUDED THAT THE REFUSAL BY MANAGEMENT TO PARTICIPATE IN
 THE ARBITRATION PROCEEDING DID NOT CONSTITUTE A FAILURE TO COMPLY WITH
 THE PROVISIONS OF SECTION 7121 OF THE STATUTE IN VIOLATION OF SECTION
 7116(A)(8).  IN SO CONCLUDING, THE AUTHORITY STATED:
 
    (S)ECTION 7121(A)(1) REQUIRES THAT 'ANY COLLECTIVE BARGAINING
 AGREEMENT SHALL PROVIDE
 
    PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF
 ARBITRABILITY,' AND
 
    SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
 SUBJECT TO BINDING
 
    ARBITRATION 'WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
 REPRESENTATIVE OR THE
 
    AGENCY.' THEREFORE, EITHER PARTY MAY INVOKE ARBITRATION ON ISSUES
 INVOLVING, INTER ALIA,
 
    QUESTIONS OF ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT
 PREVENT THE ARBITRATION
 
    FROM PROCEEDING BY REFUSING TO PARTICIPATE.  THUS, NOTHING IN THE
 STATUTE RENDERS THE EX PARTE
 
    PROCEEDING IMPROPER, AND THE RESPONDENT ACTED AT ITS OWN RISK BY NOT
 PARTICIPATING.
 
   *          *          *          *
 
 
    (W)HERE AS HERE, BINDING ARBITRATION IS INVOKED BY ONE PARTY, THE
 OTHER PARTY REFUSES TO
 
    PARTICIPATE AND THE ARBITRATOR DETERMINES TO PROCEED EX PARTE AND
 ISSUES AN AWARD, THE REFUSAL
 
    BY THE SECOND PARTY TO PARTICIPATE DOES NOT CONSTITUTE A REJECTION OF
 THE COLLECTIVE
 
    BARGAINING AGREEMENT IN VIOLATION OF SECTION 7116(A)(5) AND (1).
 (FOOTNOTES OMITTED.)
 
    THUS, FOR THE REASONS MORE FULLY STATED IN FEDERAL AVIATION
 ADMINISTRATION, ALASKAN REGIONAL OFFICE, SUPRA, THE AUTHORITY SIMILARLY
 CONCLUDES THAT INASMUCH AS THE CHARGING PARTY HEREIN COULD HAVE ITSELF
 INVOKED AND PROCEEDED TO ARBITRATION WITH OR WITHOUT THE UNION'S
 PARTICIPATION, THE RESPONDENT UNION HEREIN DID NOT VIOLATE SECTION
 7116(B)(5) AND (8) OF THE STATUTE, AS ALLEGED, BY REFUSING TO REFER THE
 CHARGING PARTY'S GRIEVANCE TO ARBITRATION.  /4/ ACCORDINGLY, THE
 AUTHORITY SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
 ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CO-6 BE, AND IT
 HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ANTONIO G. SERRANO
    CAROLYN M. BUTTERWORTH
                            FOR THE RESPONDENT
 
    GERALD M. COLE, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    ROBERT F. GRIEM, ESQUIRE
                          FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON FEBRUARY 28,
 1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 LOS ANGELES, CALIFORNIA REGION, A HEARING WAS HELD BEFORE THE
 UNDERSIGNED ON MAY 15, 1980 AT SAN DIEGO, CALIFORNIA.
 
    THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
 THE ACT).  IT IS BASED ON A CHARGE FILED ON JULY 30, 1979 BY DEPARTMENT
 OF NAVY, NAVAL EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA (HEREIN
 CALLED THE EMPLOYER OR CHARGING PARTY) AGAINST AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO (HEREIN
 CALLED THE UNION OR RESPONDENT).  THE SAID CHARGE ALLEGED, IN SUBSTANCE,
 THAT RESPONDENT UNION VIOLATED SECTIONS 7116(B)(1)(5) AND (8) OF THE ACT
 BY:  (1) DIRECTING EMPLOYEE ADOR BERNAL NOT TO PROCESS A GRIEVANCE,
 WHICH HAD BEEN PREVIOUSLY FILED, BECAUSE OF THE ATTENDANCE BY THE
 ACTIVITY'S PERSONNEL OFFICER AT A GRIEVANCE MEETING;  (2) REFUSING TO
 ACKNOWLEDGE A GRIEVANCE FILED BY THE EMPLOYER AGAINST THE UNION, AND
 THEREAFTER FILING AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE EMPLOYER.
 
    THE COMPLAINT AGAINST RESPONDENT HEREIN ALLEGED, IN SUBSTANCE, THAT
 SINCE JULY 24, 1979 THE UNION REFUSED TO REFER TO ARBITRATION A
 GRIEVANCE WHICH THE EMPLOYER HAD FILED ON JUNE 21, 1979 RE A DISPUTE
 OVER THE INTERPRETATION OF A NEGOTIATED GRIEVANCE PROCEDURE BECAUSE IT
 CONTENDED THE EMPLOYER HAS NO RIGHT UNDER THE NEGOTIATED AGREEMENT TO
 FILE A GRIEVANCE;  THAT BY SUCH CONDUCT RESPONDENT HAS REFUSED TO
 BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(B)(5) OF THE ACT.  IT
 IS FURTHER ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE
 ACT BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF.
 
    A RESPONSE TO THE COMPLAINT WAS SERVED BY RESPONDENT ON MARCH 17,
 1980.  IN ADDITION TO DENYING THE COMMISSION OF ANY UNFAIR LABOR
 PRACTICES, RESPONDENT ASSERTED THEREIN THAT THE EMPLOYER HAD NO RIGHT TO
 FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT;  THAT IF IT HAS SUCH
 RIGHT, THE GRIEVANCE PROCEDURE SHOULD HAVE BEEN EXHAUSTED;  AND THAT
 SECTION 7121(A) OF THE ACT HAS NO APPLICATION TO THE PRESENT CASE SINCE
 THE STATUTE BECAME EFFECTIVE AFTER THE DATE OF THE AGREEMENT.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE RESPONDENT HAS BEEN THE
 COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES WHO ARE EMPLOYED
 AT THE NAVY EXCHANGE, NAVAL STATION AT SAN DIEGO, CALIFORNIA.
 
    2.  BOTH THE EMPLOYER AND RESPONDENT HAVE BEEN, AND STILL ARE,
 PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING ALL ELIGIBLE
 EMPLOYEES OF THE NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, BUT EXCLUDING
 MANAGERS, SUPERVISORS, EMPLOYEES IN PERSONNEL WORK IN OTHER THAN A
 PURELY CLERICAL CAPACITY AND TEMPORARY EMPLOYEES.  THE SAID AGREEMENT,
 BUT ITS TERMS, IS EFFECTIVE FROM NOVEMBER 30, 1978 FOR A PERIOD OF THREE
 YEARS UNTIL NOVEMBER 30, 1981.
 
    3.  THE COLLECTIVE BARGAINING AGREEMENT PROVIDES INTER ALIA, AS
 FOLLOWS:
 
                     ARTICLE VI (UNION REPRESENTATION)
 
    "SECTION 7. THE PARTIES AGREE THAT DISCUSSIONS OR MEETINGS BETWEEN
 SHOP STEWARDS IN THE
 
    COURSE OF REPRESENTING AN EMPLOYEE SHALL BE WITH THE FIRST LEVELS OF
 SUPERVISION.  DISCUSSIONS
 
    WITH DEPARTMENT MANAGERS, IN WHICH THE UNION IS REPRESENTING AN
 EMPLOYEE, WILL NORMALLY
 
    INVOLVE AN OFFICER OF THE UNION, WHO MAY BE ACCOMPANIED BY THE
 APPROPRIATE SHOP STEWARD."
 
                    ARTICLE XXVII (GRIEVANCE PROCEDURE)
 
    "SECTION 2.  A GRIEVANCE IS DEFINED TO BE ANY DISPUTE OR COMPLAINT
 BETWEEN THE EMPLOYER AND
 
    THE UNION OR AN EMPLOYEE OR EMPLOYEES COVERED BY THIS AGREEMENT, AND
 WHICH MAY PERTAIN TO ANY
 
    OF THE FOLLOWING:
 
    (1) ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION, OR
 VIOLATION OF THIS AGREEMENT
 
    . . . "
 
    "SECTION 3. QUESTIONS AS TO WHETHER OR NOT A GRIEVANCE IS ON A MATTER
 FOR WHICH A STATUTORY
 
    APPEAL PROCEDURE EXISTS, IF NOT RESOLVED BY THE PARTIES, SHALL BE
 REFERRED TO THE ASSISTANT
 
    SECRETARY FOR LABOR/MANAGEMENT RELATIONS FOR DECISION . . . ALL OTHER
 DISPUTES OF GRIEVABILITY
 
    OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION AS A THRESHOLD
 ISSUE IN RELATED GRIEVANCES."
 
    "SECTION 4.  REASONABLE TIME DURING WORKING HOURS WILL BE ALLOWED THE
 UNION, EMPLOYEES,
 
    EMPLOYEE REPRESENTATIVES, AND WITNESSES TO DISCUSS, PREPARE FOR AND
 PRESENT GRIEVANCES
 
    INCLUDING ATTENDANCE OF MEETINGS WITH MANAGEMENT OFFICIALS AND FORMAL
 HEARINGS."
 
    "SECTION 6. EMPLOYEE PROCEDURE.  THE FOLLOWING GRIEVANCE PROCEDURE
 APPLIES TO THE EMPLOYEES
 
    OF THE UNIT.
 
    A.  STEP 1.  THE GRIEVANCE SHALL BE FIRST TAKEN UP ORALLY OR IN
 WRITING BY THE CONCERNED
 
    EMPLOYEE OR STEWARD WITH THE IMMEDIATE SUPERVISOR . . . "
 
                       ARTICLE XXVIII (ARBITRATION)
 
    "SECTION 1.  IF THE EMPLOYEE OR THE EMPLOYER AND THE UNION FAIL TO
 SETTLE ANY GRIEVANCE
 
    PROCESSED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, SUCH GRIEVANCE,
 UPON WRITTEN REQUEST BY
 
    THE EMPLOYER OR THE UNION WITHIN 45 CALENDAR DAYS AFTER ISSUANCE OF
 THE EXCHANGE OFFICER'S
 
    DECISION MAY BE SUBMITTED TO ARBITRATION."
 
    4.  BY LETTER DATED JUNE 21, 1979 /5/ THE EMPLOYER INFORMED
 RESPONDENT'S PRESIDENT, HILLARY E. HOLT, THAT IT DESIRED TO FILE A
 GRIEVANCE "UPON THE INTERDEPARTMENTAL LOCAL 3723;" THAT IT FELT GRIEVED
 SINCE THE UNION INTERFERED WITH MANAGEMENT'S RIGHT TO ENSURE IT COMPLIED
 WITH THE PROVISIONS OF ARTICLE XXVII OF THE AGREEMENT.  THE LETTER
 STATED THAT ON JUNE 20, 1979 MANAGEMENT WAS REFUSED THE RIGHT TO HAVE AN
 OFFICIAL PRESENT AT A STEP 1 GRIEVANCE MEETING AS PROVIDED BY ARTICLE
 XXVII, SECTION 4;  THAT ON JUNE 21, THE GRIEVANT AND HER REPRESENTATIVE
 MET WITH A SUPERVISOR TO CONDUCT THE FIRST STEP GRIEVANCE PROCEEDING,
 AND BOTH THE GRIEVANT AND HER REPRESENTATIVE REFUSED TO PROCEED BECAUSE
 OF THE PRESENCE OF PAULA ALDEN, WHO WAS PERSONNEL OFFICER AND A
 MANAGEMENT OFFICIAL.
 
    5.  IN ANSWER TO THE AFORESAID LETTER RESPONDENT FILED AN UNFAIR
 LABOR PRACTICE CHARGE (8-CA-141) AGAINST THE EMPLOYER ALLEGING THAT BY
 FILING A GRIEVANCE ON JUNE 21 IT:  (A) DELAYED THE PROCESSING OF A
 GRIEVANCE BY INSISTING THAT ALDEN BE PRESENT DURING A FIRST STEP
 GRIEVANCE;  (B) UNILATERALLY CHANGED WORKING CONDITIONS INCONSISTENT
 WITH THE WRITTEN AGREEMENT-- ALL ALLEGEDLY VIOLATIVE OF SECTIONS
 7116(A)(1) AND (5) OF THE ACT.  /6/
 
    6.  BY LETTER DATED JULY 16 FROM NAVY EXCHANGE OFFICER R.T. CLEARY,
 ADDRESSED TO RESPONDENT, THE EMPLOYER REQUESTED THAT ITS GRIEVANCE OF
 JUNE 21 BE SUBMITTED TO ARBITRATION UNDER THE NEGOTIATED AGREEMENT.
 
    7.  RESPONDENT REPLIED TO THIS REQUEST BY LETTER DATED JULY 24 IN
 WHICH THE UNION STATED THAT SINCE THE MATTER HAD BEEN REFERRED TO THE
 FEDERAL LABOR RELATIONS AUTHORITY, NO ACTION COULD BE TAKEN UNTIL THE
 LATTER RENDERED A DECISION.
 
    8.  ON OCTOBER 30 ARBITRATOR LLOYD H. BAILER RENDERED AN ARBITRATION
 OPINION AND AWARD CONCERNING A PREVIOUS GRIEVANCE FILED BY THIS EMPLOYER
 CONCERNING LANGUAGE USED BY RESPONDENT IN ITS NEWSLETTER.  IN RESPECT TO
 THE GRIEVABILITY ISSUE, THE UNION CONTENDED, AS HERE, THAT THE EMPLOYER
 WAS NOT PERMITTED TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT.
 THE ARBITRATOR HELD THAT NEITHER UNDER EXECUTIVE ORDER 11491, NOR THE
 AGREEMENT ITSELF, WAS THE EMPLOYER BARRED FROM FILING A GRIEVANCE.  HE
 CONCLUDED, HOWEVER, THAT WHILE THE LANGUAGE USED BY THE UNION WAS
 UNFOUNDED, NO BASIS EXISTED FOR A REMEDY.  /7/
 
                                CONCLUSIONS
 
    IN ITS OPPOSITION TO THE AVERMENTS IN THE COMPLAINT RESPONDENT UNION
 ASSERTS AS FOLLOWS:  (1) NO ISSUE WAS RAISED BY THE CHARGING PARTY IN
 ITS CHARGE FILED ON JULY 30, 1979 RE A REQUEST FOR ARBITRATION, AND THUS
 THE ALLEGED REFUSAL TO REFER THE EMPLOYER'S GRIEVANCE TO ARBITRATION IS
 NOT PROPERLY RAISED HEREIN;  (2) THE EMPLOYER HAD NO RIGHT UNDER THE
 NEGOTIATED AGREEMENT TO FILE A GRIEVANCE, SINCE ARTICLE XXVII, SECTION
 6, THEREOF BESPEAKS ONLY OF EMPLOYEE GRIEVANCES IN OUTLINING THE
 PROCEDURAL STEPS TO BE FOLLOWED IN FILING GRIEVANCES;  AND, FURTHER,
 SINCE THE EMPLOYER ELECTED NOT TO NEGOTIATE PROCEDURES FOR THE FILING OF
 GRIEVANCES BY MANAGEMENT, IT HAS CLEARLY WAIVED ITS RIGHT TO GRIEVE;
 (3) IT HAS NOT REFUSED TO BARGAIN IN GOOD FAITH SINCE THERE HAS BEEN NO
 PRESENTATION OF A MANAGEMENT PROPOSAL NOR A DEMAND TO BARGAIN, BUT
 CONTRARIWISE, THE EMPLOYER HAS UNILATERALLY CHANGED CONDITIONS OF
 EMPLOYMENT BY INSISTING THAT THE PERSONNEL OFFICER BE PRESENT, AS A
 REPRESENTATIVE OF THE SUPERVISOR, AT THE FIRST STEP OF THE GRIEVANCE
 PROCEDURE;  AND, UNDER ARTICLE VI, SECTION 7, OF THE AGREEMENT, NO RIGHT
 TO REPRESENTATION IS ACCORDED SUPERVISORS AT A GRIEVANCE MEETING;  (4)
 SECTION 7121(A) OF THE ACT HAS NO APPLICABILITY HEREIN SINCE THE
 AGREEMENT BETWEEN THE PARTIES WAS NEGOTIATED UNDER EXECUTIVE ORDER
 11491, AS AMENDED, AND THE EMPLOYER NEVER INSISTED UPON A CLAUSE
 PERMITTING IT TO SUBMIT DISPUTES TO ARBITRATION.  IT INSISTS THAT THE
 SAVINGS PROVISION IN SECTION 7135(A) PRECLUDES RETROACTIVE APPLICABILITY
 OF 7121 AND NO BINDING ARBITRATION CLAUSE INVOLVING THE EMPLOYER EXISTS
 HEREIN.
 
    (1) IT IS TRUE THAT THE CHARGE HEREIN DOES NOT SPECIFICALLY STATE
 THAT RESPONDENT UNION REFUSED TO REFER MANAGEMENT'S GRIEVANCE TO
 ARBITRATION.  HOWEVER, IT DOES AVER THAT RESPONDENT REFUSED TO
 ACKNOWLEDGE THE GRIEVANCE ITSELF.  IN THE PRIVATE SECTOR THE SUPREME
 COURT TOOK PAINS TO DECLARE THAT A CHARGE FILED WITH THE NATIONAL LABOR
 RELATIONS BOARD IS NOT TO BE MEASURED BY THE SAME STANDARDS APPLICABLE
 TO A PLEADING IN A PRIVATE LAWSUIT.  MOREOVER, IT REFUSED TO CONFINE THE
 BOARD TO FRAMING A COMPLAINT TO THE SPECIFIC MATTERS ALLEGED IN THE
 CHARGE.  NLRB V. FANT MILLING CO., 360 U.S. 301(1959).  THUS, THE CHARGE
 MERELY SETS IN MOTION THE MACHINERY OF AN INQUIRY.  FURTHER, THE REFUSAL
 TO REFER TO ARBITRATION, AS ALLEGED IN THE COMPLAINT, IS REASONABLY
 RELATED TO THE AVERMENT IN THE CHARGE.  SEE DORAL HOTEL AND COUNTRY
 CLUB, 240 NLRB NO. 150.  ACCORDINGLY, I REJECT THE RESPONDENT'S
 CONTENTION THAT THE ISSUE IS NOT PROPERLY RAISED.
 
    (2) IN RESPECT TO THE CONTENTION BY THE UNION THAT THE EMPLOYER HAS
 NO RIGHT TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT, I AGREE
 WITH THE GENERAL COUNSEL THAT THIS IS A THRESHOLD ISSUE TO BE DECIDED BY
 THE ARBITRATOR.  APART FROM QUESTIONS RE THE AVAILABILITY OF STATUTORY
 APPEAL PROCEDURES FOR GRIEVANCES, ALL DISPUTES OF GRIEVABILITY AND
 ARBITRABILITY ARE TO BE REFERRED TO ARBITRATION AS A THRESHOLD ISSUE
 UNDER ARTICLE XXVII, SECTION 3 OF THE AGREEMENT.  THUS THIS DEFENSE HAS
 NO APPLICABILITY HEREIN AND IS NOT PROPERLY RAISED BEFORE THE
 UNDERSIGNED.  /8/
 
    (3) IT HAS BEEN ESTABLISHED IN THE PUBLIC SECTOR THAT A UNILATERAL
 REFUSAL, WITHOUT MORE, TO PROCEED TO ARBITRATION OF A GRIEVANCE
 CONSTITUTES AN UNFAIR LABOR PRACTICE.  WHERE SUCH REFUSAL WAS NOT
 GROUNDED IN GOOD FAITH, IT WAS HELD TO BE VIOLATIVE OF SECTION 19(A)(1)
 AND (6) OF THE ORDER.  /9/ DEPARTMENT OF THE ARMY AND AIR FORCE,
 DEPARTMENT OF DEFENSE, DIVISION OF MILITARY AFFAIRS, STATE OF NEW YORK,
 1 FLRA NO. 73;  INTERNAL REVENUE SERVICE AUSTIN DISTRICT, AUSTIN, TEXAS,
 2 FLRA NO. 71;  ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
 CONSOLIDATED EXCHANGE, FORT DIX, NJ, A/SLMR NO. 700.
 
    IN THE INSTANT CASE RESPONDENT UNION UNILATERALLY REFUSED TO REFER
 THE EMPLOYER'S GRIEVANCE TO ARBITRATION BASED ON ITS CONCLUSION THAT
 MANAGEMENT COULD NOT GRIEVE UNDER THE NEGOTIATED AGREEMENT.  FURTHER, IT
 FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH WAS THEREAFTER DISMISSED.
 IT DOES NOT LIE, HOWEVER, WITH EITHER PARTY TO A CONTRACT TO MAKE THE
 DETERMINATION RE QUESTIONS OF ARBITRABILITY.  APART FROM THE FACT THAT
 ARTICLE XXVII, SECTION 2 OF THE AGREEMENT DEFINES A GRIEVANCE AS ANY
 DISPUTE BETWEEN THE EMPLOYER AND THE UNION OR AN EMPLOYEE, AN ARBITRATOR
 CONCLUDED, IN A PRIOR DISPUTE BETWEEN THE SAME PARTIES HEREIN, THAT THIS
 EMPLOYER COULD FILE A GRIEVANCE THEREUNDER.  IN THE FACE OF THIS
 DETERMINATION, AS WELL AS THE LANGUAGE EMPLOYED IN THE AGREEMENT,
 RESPONDENT CAN SCARCELY RELY ON GOOD FAITH IN ITS REFUSAL TO ARBITRATE
 THE DISPUTE HEREIN.
 
    NOTE IS TAKEN THAT IN RESPONSE TO THE EMPLOYER'S REQUEST FOR
 ARBITRATION RESPONDENT STATED IT COULD NOT COMPLY THEREWITH SINCE THE
 MATTER WAS REFERRED TO THE FEDERAL LABOR RELATIONS AUTHORITY.  THE UNION
 WAS APPARENTLY REFERRED TO THE UNFAIR LABOR PRACTICE CHARGES WHICH IT
 HAD FILED AGAINST THE EMPLOYER.  BUT NOT ONLY WERE THESE DISMISSED, BUT
 THEY INVOLVED COLLATERAL ISSUES NOT NECESSARILY DETERMINATIVE OF
 RESPONDENT'S OBLIGATIONS IN RESPECT TO ARBITRATING THE DISPUTE BETWEEN
 THE PARTIES.  FURTHER, THE AUTHORITY HAS CONCLUDED THAT HOLDING A
 CONTRACTUAL GRIEVANCE IN ABEYANCE PENDING THE PROCESSING OF RELATED EEO
 MATTERS IN A U.S.  DISTRICT COURT CONSTITUTES A VIOLATION OF 19(A)(1)
 AND (6) OF THE ORDER. IRS, SUPRA.  LIKEWISE, AN EMPLOYER'S REFUSAL TO
 PROCEED TO ARBITRATION PENDING A DISTRICT COURT'S DECISION RE A UNION'S
 PETITION TO COMPEL ARBITRATION WAS NOT DEEMED GOOD FAITH, AND THE
 AUTHORITY HELD SUCH REFUSAL TO BE VIOLATIVE OF THE ORDER.  DEPT. OF THE
 ARMY AND AIR FORCE, SUPRA.
 
    THUS I CONCLUDE THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED TO
 ARBITRATION ON JULY 24, 1979 WAS VIOLATIVE OF SECTION 7116(B)(5) OF THE
 ACT.
 
    (4) THE GENERAL COUNSEL MAINTAINS THAT RESPONDENT ALSO VIOLATED
 SECTION 7116(B)(8) OF THE ACT SINCE IT FAILED TO COMPLY WITH SECTION
 7121(A) THEREOF.  THE LATTER SECTION PROVIDES AS FOLLOWS:
 
    "SECTION 7121
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY.  EXCEPT AS PROVIDED IN SUBSECTION (D) AND (E) OF THIS
 SECTION, THE PROCEDURES
 
    SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
 WITHIN ITS COVERAGE.
 
    (2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE
 
    GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT."
 
    RESPONDENT ARGUES THAT A SAVINGS CLAUSE IS CONTAINED IN SECTION
 7135(A) OF THE ACT PROVIDING FOR AN EXTENSION OF PROCEDURES UNDER
 EXECUTIVE ORDER 11491, AS AMENDED.  IT CONTENDS THAT SINCE THERE WAS NO
 PROCEDURE FOR ARBITRATION OF A GRIEVANCE BY MANAGEMENT, THERE CAN BE NO
 RETROACTIVE APPLICATION OF A GRIEVANCE SETTLEMENT PROCEDURE.
 
    UNDER SECTION 13 OF THE ORDER IT WAS NOT MANDATORY TO INCLUDE BINDING
 ARBITRATION AS PART OF A NEGOTIATED GRIEVANCE PROCEDURE.  HOWEVER,
 SECTION 7121 OF THE ACT MANDATES THAT NEGOTIATED GRIEVANCE PROCEDURES
 SHALL PROVIDE FOR BINDING ARBITRATION OF ANY GRIEVANCE NOT SETTLED UNDER
 THOSE PROCEDURES.  IN ITS INTERPRETATION AND GUIDANCE REPORT (CASE NO.
 0-PS-2), ISSUED ON DECEMBER 19, 1979, THE AUTHORITY DISCUSSED THE
 IMPACT, IF ANY, OF SECTION 7135(A)(1) ON REQUIREMENT UNDER THE ORDER.
 THE AUTHORITY RECOGNIZED THAT WHERE THE PARTIES ENTERED INTO AN
 AGREEMENT BEFORE THE EFFECTIVE DATE OF THE STATUTE WITH NO PROVISION FOR
 BINDING ARBITRATION AS PART OF THE GRIEVANCE PROCEDURE, THEY MIGHT AGREE
 TO CONTINUE THE TERMS THEREOF UNDER SECTION 7135(A)(1) OF THE STATUTE.
 IT CONCLUDED THAT SECTION 13 OF THE ORDER, HOWEVER, HAS BEEN SUPERSEDED
 BY SECTION 7121 OF THE STATUTE;  THAT PROVISIONS IN AGREEMENTS
 CONFERRING JURISDICTION UPON THE ASSISTANT SECRETARY TO RESOLVE
 ARBITRABILITY QUESTIONS ARE RENDERED VOID BY THE STATUTE;  AND THAT,
 UNLESS OTHERWISE AGREED, PROCEDURES IN AGREEMENTS FOR SETTLING
 GRIEVANCES MUST BE READ AS PROVIDING THAT QUESTIONS OF ARBITRABILITY
 SHALL BE SUBMITTED TO ARBITRATION.
 
    THE NEGOTIATED AGREEMENT HEREIN DOES, IN FACT, PROVIDE THAT DISPUTES
 OF GRIEVABILITY OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION.
 UNDER THE AUTHORITY'S INTERPRETATION OF THE APPLICABLE STATUTORY
 PROVISION, THIS BINDING ARBITRATION PROVISION MUST BE UTILIZED.
 RESPONDENT MAY NOT INSIST INSTEAD UPON HAVING QUESTIONS OF THIS NATURE
 RESOLVED BY THE ASSISTANT SECRETARY.  FURTHER, SECTION 7135(A) DOES NOT
 AFFORD RELIEF TO THE UNION SINCE THE STATUTE REQUIRES THAT, UNLESS
 OTHERWISE AGREED UPON, ALL GRIEVANCE PROCEDURES MUST BE READ AS
 PROVIDING FOR THE SUBMISSION TO ARBITRATION OF ALL ISSUES OF
 ARBITRABILITY.  ACCORDINGLY, AND SINCE THE ISSUE RAISED BY RESPONDENT
 MUST, IN THE FINAL ANALYSIS BE DETERMINED BY THE ARBITRATOR AFTER
 SUBMISSION, I CONCLUDE THE UNION HAS FAILED TO COMPLY WITH SECTION 7121
 OF THE ACT.  BY REASON OF ITS FAILURE, RESPONDENT HAS VIOLATED SECTIONS
 7116(B)(8) THEREOF.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(B)(5) AND (8) OF
 THE ACT BY REASON OF ITS REFUSAL TO PROCEED TO ARBITRATION OF THE
 GRIEVANCE FILED BY THE EMPLOYER HEREIN ON JUNE 21, 1979, I RECOMMEND
 THAT AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
 IS HEREBY ORDERED THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY REFUSING TO PROCEED TO ARBITRATION REGARDING A
 GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
 STATION, SAN DIEGO, CALIFORNIA ON JUNE 21, 1979, ALLEGING A VIOLATION OF
 ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT
 WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF THE EMPLOYER'S
 DESIRE TO INVOKE ARBITRATION.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ACT:
 
    (A) UPON REQUEST, PROCEED TO ARBITRATION REGARDING A GRIEVANCE FILED
 BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL STATION, SAN DIEGO,
 CALIFORNIA, ALLEGING A VIOLATION OF ARTICLE XXVII, SECTION 4 OF THE
 NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID EMPLOYER.
 
    (B) POST AT THE BULLETIN BOARDS PROVIDED FOR THE POSTING OF UNION
 MATERIAL BY THE DEPARTMENT OF NAVY, NAVY EXCHANGE, NAVAL STATION, SAN
 DIEGO, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON
 RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723,
 AFL-CIO, AND THEY WITH THE CONSENT AND APPROVAL OF DEPARTMENT OF NAVY,
 NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA, SHALL BE POSTED FOR
 60 CONSECUTIVE DAYS THEREAFTER.  REASONABLE STEPS SHALL BE TAKEN TO
 ENSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
 OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR OF REGION 8, 350 SOUTH FIGUEROA
 STREET, LOS ANGELES, CALIFORNIA IN WRITING WITHIN 30 DAYS FROM THE DATE
 OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                        WILLIAM NAIMARK
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 20, 1980
    WASHINGTON, D.C.
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF THE FEDERAL LABOR-MANAGEMENT
 
            RELATIONS STATUTE LABOR-MANAGEMENT RELATIONS IN THE
 
                              FEDERAL SECTOR
 
                    WE HEREBY NOTIFY OUR MEMBERS THAT:
 
    WE WILL NOT UNILATERALLY REFUSE TO PROCEED TO ARBITRATION REGARDING A
 GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
 STATION, SAN DIEGO, CALIFORNIA, ON JUNE 21, 1979, ALLEGING A VIOLATION
 OF ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED
 AGREEMENT WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF ITS DESIRE
 TO INVOKE ARBITRATION.
 
    WE WILL, UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
 FILED ON JUNE 21, 1979 BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
 NAVAL STATION, SAN DIEGO, CALIFORNIA ALLEGING A VIOLATION OF ARTICLE
 XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID
 EMPLOYER.
 
                        UNION OR LABOR ORGANIZATION
 
    DATED:  BY:
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
 THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  350
 SOUTH FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES, CA
 90071 AND WHOSE TELEPHONE NUMBER IS:  (213) 688-3805.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7116(B)(5) OF THE STATUTE READS AS FOLLOWS:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
   *          *          *          *
 
 
    (B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR A LABOR
 
    ORGANIZATION--
 
   *          *          *          *
 
 
    (5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH AN AGENCY AS
 REQUIRED BY THIS
 
    CHAPTER(.)
 
    /2/ SECTION 7116(B)(8) OF THE STATUTE STATES THAT IT SHALL BE AN
 UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION "TO OTHERWISE FAIL OR
 REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER."
 
    /3/ SECTION 7121 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY . . .
 
   *          *          *          *
 
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION
 
    SHALL--
 
   *          *          *          *
 
 
    (3) INCLUDE PROCEDURES THAT--
 
   *          *          *          *
 
 
    (C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
 INVOKED BY EITHER THE EXCLUSIVE
 
    REPRESENTATIVE OR THE AGENCY.
 
    /4/ IN THIS REGARD, IT IS NOTED THAT, ACCORDING TO THE JUDGE, THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT "GRIEVANCE(S),
 UPON WRITTEN REQUEST BY THE EMPLOYER OF THE UNION . . . MAY BE SUBMITTED
 TO ARBITRATION."
 
    /5/ ALL DATED HEREINAFTER MENTIONED OCCUR IN 1979 UNLESS OTHERWISE
 SPECIFIED.