International Federation of Professional and Technical Engineers (Union) and Portsmouth Naval Shipyard (Activity) 



[ v08 p251 ]
08:0251(54)AR
The decision of the Authority follows:


 8 FLRA No. 54
 
 INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL
 ENGINEERS
 Union
 
 and
 
 PORTSMOUTH NAVAL SHIPYARD
 Activity
 
                                            Case No. O-AR-167
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS 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. SEC.
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE OVER
 THE ACTIVITY'S FILLING OF A CERTAIN SUPERVISORY POSITION.  A GRIEVANCE
 WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.  AFTER
 THE ARBITRATION HEARING, THE PARTIES ADVISED THE ARBITRATOR THAT, PRIOR
 TO SUBMISSION OF BRIEFS ON THE MERITS, THEY WOULD PREFER TO HAVE THE
 ARBITRABILITY ISSUE THAT HAD BEEN RAISED BY THE ACTIVITY DECIDED FIRST.
 WITH RESPECT TO THIS ISSUE, THE ARBITRATOR NOTED THAT "(T)HE UNION
 READILY ACKNOWLEDGES THAT ITS CONTRACT AS WRITTEN AND EXECUTED IN 1978
 DOES NOT APPLY TO SUPERVISORY POSITIONS." /1/ HOWEVER, THE UNION ARGUED
 THAT FOLLOWING THE EFFECTIVE DATE OF THE STATUTE IN 1979, IT HAD ORALLY
 AGREED WITH THE ACTIVITY THAT THEIR AGREEMENT WOULD BE READ IN A MANNER
 CONSISTENT WITH THE PROVISIONS OF THE STATUTE.  IN THIS REGARD THE UNION
 CONTENDED THAT UNDER THE STATUTE, PARTICULARLY ITS PROVISIONS RELATING
 TO BROAD SCOPE GRIEVANCE PROCEDURES, THE GRIEVANCES IN THIS CASE WERE
 NOW GRIEVABLE UNDER THE PARTIES' AGREEMENT.  THE ARBITRATOR REJECTED
 THIS ARGUMENT, FINDING THAT NOTHING IN THE STATUTE REQUIRED AN AGENCY TO
 ENLARGE ITS BARGAINING UNIT TO INCLUDE SUPERVISORY POSITIONS AND THAT
 THE STATUTE DID NOT, WITH CERTAIN SPECIFIC EXCEPTIONS, CHANGE OR REVISE
 AGREEMENTS NEGOTIATED BEFORE ITS PASSAGE.  THEREFORE, HE FOUND THE
 GRIEVANCE NONARBITRABLE.
 
    EACH OF THE UNION'S THREE EXCEPTIONS TO THE AWARD IS BASED ON ONE
 UNDERLYING PREMISE, I.E., ARTICLE 23 OF THE PARTIES' AGREEMENT, WHICH
 LIMITS MERIT PROMOTION GRIEVANCES TO UNIT POSITIONS, WAS RENDERED
 "OBSOLETE" BY THE STATUTE AND, PURSUANT TO THE PARTIES' ORAL AGREEMENT
 TO ABIDE BY THE STATUTE, THE SCOPE OF THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE AUTOMATICALLY BECAME THAT REFLECTED BY SECTION 7121 OF THE
 STATUTE.  THE UNION ARGUES THAT, BY NOT RECOGNIZING THIS, THE ARBITRATOR
 EXCEEDED HIS AUTHORITY, AND HIS AWARD IS CONTRARY TO LAW AND DOES NOT
 DRAW ITS ESSENCE FROM THE AGREEMENT.
 
    THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE AUTHORITY ADDRESSED THE IMPACT OF SECTION 7121 OF THE
 STATUTE ON THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES IN AGREEMENTS
 ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE STATUTE IN
 INTERPRETATION AND GUIDANCE, CASE NO. O-PS-2, 2 FLRA 273 (1979).  IN
 THAT CASE THE AUT