Headquarters, Air Force Logistics Command (Activity) and American Federation of Government Employees, Council No. 214 (Union)

 



[ v08 p266 ]
08:0266(61)AR
The decision of the Authority follows:


 8 FLRA No. 61
 
 HEADQUARTERS, AIR FORCE
 LOGISTICS COMMAND
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, COUNCIL NO. 214
 Union
 
                                            Case No. O-AR-164
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR CHARLES F. IPAVEC 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 FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE ISSUE IN THIS CASE CONCERNS THE
 UNION'S GRIEVANCE OBJECTING TO A GUIDANCE AND TRAINING MANUAL WHICH THE
 AGENCY DISTRIBUTED TO ITS MANAGERS AND SUPERVISORS.  THE UNION ALLEGED
 THAT THE MANUAL ERRONEOUSLY INTERPRETED PORTIONS OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT AND THEREBY REDUCED THE UNION'S RIGHTS
 UNDER THE AGREEMENT.  THE ARBITRATOR HELD A HEARING AT WHICH HE
 ANNOUNCED HIS INTENTION TO HEAR EVIDENCE ON THE ISSUE OF ARBITRABILITY
 FIRST, AND THEN TO HEAR EVIDENCE ON THE MERITS.  HOWEVER, IN HIS AWARD
 HE STATED THAT "TIME PERMITTED ONLY THE INTRODUCTION OF EVIDENCE AS TO
 THE QUESTION OF ARBITRABILITY, AND THIS DECISION IS DIRECTED ONLY TO
 THAT ISSUE." THE ARBITRATOR THEN DETERMINED THAT THE GRIEVANCE WAS NOT
 ARBITRABLE BECAUSE THERE WAS "NO QUESTION THAT THE WITHIN GRIEVANCE WAS
 FILED BEFORE THE AGENCY PERFORMED ANY SPECIFIC ACTION WHICH INFRINGED
 UPON THE RIGHTS OF THE BARGAINING UNIT."
 
    IN ITS EXCEPTIONS, THE UNION ALLEGES THE AWARD IS DEFICIENT BECAUSE
 THE ARBITRATOR DID NOT CONDUCT A FULL AND FAIR HEARING AND BECAUSE THE
 AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT.  SPECIFICALLY, THE
 UNION OBJECTS TO THE ARBITRATOR'S REFUSAL TO HOLD A HEARING ON THE
 MERITS BEFORE MAKING HIS RULING ON THE ARBITRABILITY ISSUE.  THE UNION
 CONTENDS THE ARBITRATOR REFUSED TO HEAR EVIDENCE CONCERNING SPECIFIC
 ACTIONS BY THE AGENCY ON THE GROUNDS THAT SUCH EVIDENCE SHOULD BE
 RESERVED FOR THE HEARING ON THE MERITS, WHICH NEVER OCCURRED.  THE UNION
 CONTENDS THAT THE CLEAR LANGUAGE OF THE CONTRACT REQUIRES THAT AN
 ARBITRATOR, AFTER DECIDING THAT A REASONABLE BASIS EXISTS THAT THE ISSUE
 IS ARBITRABLE, HEAR THE MERITS OF THE CASE AND DECIDE THE ISSUES
 TOGETHER.  /1/ HOWEVER, THE UNION HAS NOT DEMONSTRATED THAT THE AWARD IS
 DEFICIENT.  THAT IS, THE UNION HAS NOT DEMONSTRATED THAT THE
 ARBITRATOR'S FAILURE TO ULTIMATELY HOLD A HEARING ON THE MERITS IN ANY
 MANNER PREVENTED THE UNION FROM PRESENTING EVIDENCE WITH REGARD TO THE
 ARBITRABILITY ISSUE OR THAT THE ARBITRATOR REJECTED EVIDENCE RELEVANT TO
 THAT ISSUE.  THE UNION'S QUOTES FROM PORTIONS OF THE OFFICIAL TRANSCRIPT
 OF THE HEARING SHOW ONLY AN ATTEMPT BY THE ARBITRATOR TO LIMIT THE
 EVIDENCE TO THE QUESTION OF ARBITRABILITY AND DO NOT SHOW THAT THE
 ARBITRATOR REJECTED EVIDENCE WHICH THE UNION WAS SPECIFICALLY ATTEMPTING
 TO OFFER AS RELEVANT TO THIS QUESTION.  FURTHER, THE UNION HAS NOT
 DEMONSTRATED THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE
 AGREEMENT.  THE UNION HAS NOT SHOWN THAT EITHER THE CITED AGREEMENT
 PROVISION OR THE ARBITRATOR'S INITIAL BENCH RULING THAT THERE WAS NO
 NEED TO BIFURCATE THE HEARINGS ON ARBITRABILITY AND THE MERITS PREVENTED
 THE ARBITRATOR FROM SUBSEQUENTLY ISSUING A DECISION ON THE ARBITRABILITY
 QUESTION WHEN TIME DID NOT PERMIT THE MERITS ISSUE FROM BEING HEARD AND
 BOTH PARTIES HAD A FULL OPPORTUNITY TO PRESENT EVIDENCE WITH RESPECT TO
 THE ARBITRABILITY OF THE GRIEVANCE.
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 25, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION REFERS TO SECTION 7.05 OF ARTICLE 7 WHICH PROVIDES IN
 PART:
 
    IF