08:0780(130)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec CA



[ v08 p780 ]
08:0780(130)CA
The decision of the Authority follows:


 8 FLRA No. 130
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES METAL TRADES COUNCIL
 Charging Party
 
                                            Case No. 3-CA-1860
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1), (5) AND (8)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RECOMMENDED THAT THE CASE BE DISMISSED IN ITS ENTIRETY.  THEREAFTER,
 THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF 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 THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1860 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ADOPTING THE JUDGE'S CONCLUSION THAT THE COMPLAINT SHOULD BE
 DISMISSED AS UNTIMELY INSOFAR AS IT ALLEGES A VIOLATION ARISING OUT OF
 RESPONDENT'S ALLEGED REFUSAL TO ACT ON THE UNION'S NOVEMBER 6, 1979
 REQUEST FOR SUBMISSION TO ARBITRATION, THE AUTHORITY NOTES THAT THERE IS
 NO EVIDENCE THAT THE UNION WAS PREVENTED FROM FILING A CHARGE DURING THE
 SIX MONTH PERIOD FOLLOWING THAT DATE BY ANY FAILURE OF THE AGENCY TO
 PERFORM A DUTY OWED.  (SEE SECTION 7118(A)(4) OF THE STATUTE.) RATHER,
 AS DETAILED BY THE JUDGE, THE UNION DID NOTHING TO PURSUE ITS REQUEST
 UNTIL MID-OCTOBER 1980 AND DID NOT FILE AN UNFAIR LABOR PRACTICE CHARGE
 UNTIL JANUARY 16, 1981, WELL BEYOND THE APPLICABLE SIX MONTH PERIOD.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NORFOLK NAVAL SHIPYARD
                      RESPONDENT
 
    AND
 
    TIDEWATER VIRGINIA FEDERAL EMPLOYEES
    METAL TRADES COUNCIL
                      CHARGING PARTY
 
                            CASE NO. 3-CA-1860
 
    DENNIS K. REISCHL, ESQ.
                      FOR THE RESPONDENT
 
    HEATHER BRIGGS, ESQ.
                      FOR THE GENERAL COUNSEL
 
    BEFORE:  ALAN W. HEIFETZ
                      ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
 OF AN UNFAIR LABOR PRACTICE CHARGE FILED JANUARY 16, 1981, WITH THE
 FEDERAL LABOR RELATIONS AUTHORITY.  CONSEQUENTLY, ON MARCH 27, 1981, THE
 REGIONAL DIRECTOR OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
 RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5), AND )8) OF THE STATUTE BY
 UNILATERALLY IMPLEMENTING A CHANGE IN THE PROCEDURES FOR SUBMITTING A
 GRIEVANCE TO BINDING ARBITRATION, THEREBY COMMITTING A CLEAR AND PATENT
 BREACH OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, AND BY REFUSING
 TO SUBMIT A GRIEVANCE TO BINDING ARBITRATION.  RESPONDENT DENIES THE
 ALLEGATIONS.
 
    A HEARING WAS HELD ON APRIL 28, 1981, IN NORFOLK, VIRGINIA.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO
 INTRODUCE EVIDENCE.  POST HEARING BRIEFS WERE FILED BY JUNE 9, 1981, AND
 HAVE BEEN CONSIDERED.  UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
 OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
 CONCLUSIONS, AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    BY MEMORANDUM DATED NOVEMBER 6, 1979, THE TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES METAL TRADES COUNCIL (THE UNION) ADVISED RESPONDENT THAT IT
 WISHED TO TAKE THE CASE OF SAMUEL L. WILLIAMS TO BINDING ARBITRATION.
 /1/
 
    ARTICLE 34, SECTION 2 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 PROVIDES, IN PERTINENT PART:
 
    WITHIN FIVE CALENDAR DAYS FOLLOWING RECEIPT OF WRITTEN NOTICE TO
 ARBITRATE, THE EMPLOYER
 
    WILL REQUEST THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO SUBMIT
 A LIST OF FIVE OR MORE
 
    IMPARTIAL PERSONS QUALIFIED TO ACT AS ARBITRATORS.  THE PARTIES WILL
 MEET WITHIN FIVE CALENDAR
 
    DAYS AFTER RECEIPT OF SUCH LIST TO SELECT AN ARBITRATOR . . .
 
    RESPONDENT DID NOT SUBMIT A REQUEST TO FMCS FOR A LIST OF
 ARBITRATORS.  /2/ INSTEAD, RESPONDENT WROTE BACK TO THE UNION ON
 DECEMBER 3, 1979, REVIEWING THE MERITS OF THE WILLIAMS GRIEVANCE AND
 ASKING THE UNION TO RECONSIDER ITS POSITION ON THE MERITS.
 
    NEITHER PARTY TOOK ANY ACTION WITH REGARD TO THE GRIEVANCE FOR OVER
 10 MONTHS.  /3/ IN MID-OCTOBER 1980, THE GRIEVANT ASKED THE UNION FOR A
 STATUS REPORT ON HIS GRIEVANCE.  THIS INQUIRY PROMPTED THE UNION TO
 RENEW ITS REQUEST FOR ARBITRATION IN A LETTER DATED OCTOBER 15, 1980.
 MANAGEMENT RESPONDED BY LETTER DATED OCTOBER 28, 1980, WHICH CONCLUDED:
 
    THUS, FOR FAILURE TO PROSECUTE, WE HAD CONSIDERED THE CASE OF MR.
 WILLIAMS TO BE A CLOSED
 
    ISSUE.  I CONSIDER THAT THE ONLY VIABLE ALTERNATIVE NOW OPEN TO THE
 COUNCIL IS TO PURSUE THE
 
    QUESTION OF ARBITRABILITY.  IF YOU CHOOSE TO PURSUE THIS COURSE OF
 ACTION, A WRITTEN
 
    STIPULATION OF THE ISSUES TO BE SUBMITTED TO ARBITRATION APPEARS TO
 BE A NECESSITY.
 
    BY LETTER DATED NOVEMBER 17, 1980, RESPONDENT REITERATED ITS POSITION
 THAT IT WOULD BE WILLING TO SUBMIT THE QUESTION OF ARBITRABILITY AND
 SUGGESTED THAT THE PARTIES MEET "IN AN EFFORT TO AGREE UPON THE ISSUE(S)
 TO BE SUBMITTED TO ARBITRATION." THIS SAME POSITION WAS AGAIN STATED IN
 A LETTER TO THE UNION DATED DECEMBER 22, 1980.  THE UNION RESPONDED ON
 JANUARY 5, 1981, AGAIN REQUESTING ARBITRATION AND SUGGESTING THAT THE
 QUESTION OF ARBITRABILITY COULD BE RAISED AT THE HEARING FOR A "BENCH
 DECISION".  IN ITS LAST RESPONSE, DATED JANUARY 29, 1981, RESPONDENT
 STATED:
 
    IN PAST CASES CONCERNING ARBITRABILITY, THE SHIPYARD HAS INSISTED ON
 RESOLVING
 
    ARBITRABILITY QUESTIONS SEPARATE AND APART FROM CONSIDERING THE
 MERITS OF THE CASE.  THE CASE
 
    OF (A NAMED EMPLOYEE) IS ONE OF SEVERAL PAST CASES WHERE THE QUESTION
 OF ARBITRABILITY WAS
 
    RESOLVED IN THIS MANNER.  THE SHIPYARD HAS NOT REFUSED TO ARBITRATE
 THE GRIEVANCE OF
 
    MR. WILLIAMS;  HOWEVER, MANAGEMENT STILL CONSIDERS IT ESSENTIAL THAT
 THE ISSUE OF ARBITRABILITY
 
    BE RESOLVED.  THIS PRACTICE HAS BEEN BASED ON THE PARTIES (SIC)
 INTERPRETATION OF THE
 
    NEGOTIATED AGREEMENT . . .
 
    ALTHOUGH THE PARTIES' COLLECTIVE BARGAINING AGREEMENT IS SILENT AS TO
 THE HANDLING OF ARBITRABILITY DISPUTES, OTHER DOCUMENTARY EVIDENCE
 DEMONSTRATES THAT, CONSISTENT WITH THE CLAIM ASSERTED IN RESPONDENT'S
 LETTER OF JANUARY 29, 1981, THE PARTIES HAD, ON NUMEROUS OCCASIONS,
 SUBMITTED ONLY THE QUESTION OF ARBITRABILITY AS A THRESHOLD MATTER, WITH
 A LATER HEARING HELD ON THE MERITS WHERE THE QUESTION OF ARBITRABILITY
 WAS ANSWERED IN THE AFFIRMATIVE.  /4/
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS AT ONCE APPARENT THAT THE COMPLAINT, INSOFAR AS IT ALLEGES A
 VIOLATION OF THE STATUTE ARISING OUT OF RESPONDENT'S CONDUCT IN NOVEMBER
 OF 1979, MUST BE DISMISSED AS UNTIMELY.  IF RESPONDENT WERE OBLIGATED TO
 NOTIFY THE FMCS WITHIN FIVE DAYS OF THE REQUEST TO ARBITRATE,
 NOTIFICATION WOULD HAVE HAD TO HAVE BEEN EFFECTUATED BY NOVEMBER 11,
 1979.  UNDER THOSE CIRCUMSTANCES AN UNFAIR LABOR PRACTICE CHARGE WOULD
 HAD TO HAVE BEEN FILED BY MID-MAY OF 1980.  /5/ HOWEVER, THE CHARGE IN
 THIS CASE WAS FILED ON JANUARY 16, 1981, SOME EIGHT MONTHS OUT OF TIME.
 COUNSEL FOR THE GENERAL COUNSEL CONCEDES THIS POINT, BUT FOR THE
 ARGUMENT THAT THE UNION HAD NO ACTUAL KNOWLEDGE UNTIL OCTOBER 1980 THAT
 THE REQUEST FOR A LIST OF ARBITRATORS HAD NOT ACTUALLY BEEN SENT TO
 FMCS.  I FIND THAT ARGUMENT UNPERSUASIVE, FOR EVEN IF THE UNION DID NOT
 HAVE ACTUAL KNOWLEDGE, IT CERTAINLY SHOULD HAVE KNOWN THE STATUS OF ITS
 MEMBER'S GRIEVANCE THROUGHOUT ITS COURSE.  FIRST, HAD THE UNION FOLLOWED
 ITS PAST PRACTICE OF COSIGNING THE REQUEST FOR A LIST OR ARBITRATORS, IT
 WOULD HAVE KNOWN WHAT TOOK PLACE, OR DID NOT TAKE PLACE, AT THE
 EXPIRATION OF THE FIRST FIVE DAYS.  SECOND, THE UNION KNEW THAT IT MIGHT
 TAKE FROM FOUR TO EIGHT WEEKS TO RECEIVE A LIST OF ARBITRATORS FROM
 FMCS, YET AT THE EXPIRATION OF THAT PERIOD OF TIME, IT STILL STOOD
 QUIET.  THIRD, THE UNION NEVER RESPONDED TO THE SHIPYARD'S DECEMBER 3,
 1979, REQUEST TO RECONSIDER ITS POSITION ON THE MERITS.  FINALLY, IT WAS
 ONLY AFTER THE GRIEVANT HIMSELF, RAISED THE QUESTION OF THE STATUS OF
 HIS GRIEVANCE THAT THE UNION UNDERTOOK ANY ACTION.  REGARDLESS OF THE
 INTERNAL DISRUPTION CAUSED BY THE CHANGE IN ITS LEADERSHIP, OR FOR
 WHATEVER OTHER REASON WHICH MAY BE ADVANCED FOR ITS INACTION, THE FACT
 REMAINS THAT THE UNION DROPPED THE BALL IN THIS MATTER WHEN IT FAILED TO
 MAKE AN INQUIRY INTO THE STATUS OF THE CASE DURING A PERIOD OF TIME WHEN
 IT SHOULD HAVE BEEN ON NOTICE THAT NOTHING WAS HAPPENING.  AS SANTAYANA
 PUT IT, "KNOWLEDGE IS RECOGNITION OF SOMETHING ABSENT;  IT IS A
 SALUTATION, NOT AN EMBRACE." /6/
 
    AS A SECOND ISSUE, COUNSEL FOR THE GENERAL COUNSEL POSITS THAT
 RESPONDENT UNILATERALLY CHANGED THE GRIEVANCE PROCEDURE WITHOUT NOTICE
 TO THE UNION BY REFUSING TO ARBITRATE THE MERITS OF THE GRIEVANCE
 SIMULTANEOUSLY WITH AN ARBITRABILITY ISSUE.  THIS ISSUE IS BOTTOMED ON
 RESPONDENT'S LETTER OF OCTOBER 29, 1980, WHICH PROPOSED A WRITTEN
 STIPULATION OF "ISSUES TO BE SUBMITTED TO ARBITRATION." THIS LETTER, OR
 FOR THAT MATTER ANY OTHER CONDUCT OF RESPONDENT, CANNOT BE CONSTRUED AS
 A REFUSAL TO ARBITRATE.  THE MOST THAT ONE COULD CONCLUDE FROM THE
 RECORD IS THAT THERE WAS A DISAGREEMENT AS TO PROCEDURE.  MOREOVER, THE
 RECORD DOES NOT WARRANT A FINDING THAT RESPONDENT SOUGHT TO CHANGE ANY
 PRACTICE;  IT MERELY SOUGHT TO CONTINUE WHAT IT CONSIDERED TO BE THE
 PREVAILING PRACTICE.  THE COLLECTIVE BARGAINING AGREEMENT IS SILENT AS
 TO WHETHER ARBITRABILITY IS TO BE DECIDED AS A SINGLE ISSUE IN A
 SEPARATE HEARING OR WHETHER IT MAY BE CONSIDERED AT THE SAME HEARING
 WITH THE MERITS.  CLEARLY THE PRACTICE HERE WAS TO CONSIDER
 ARBITRABILITY AS A SEPARATE ISSUE.  THE UNION DOES NOT DENY THAT IT HAS
 AGREED, ON NUMEROUS OCCASIONS, TO SUBMIT ONLY THAT ISSUE.  UNDER THE
 CIRCUMSTANCES, I CONCLUDE THAT THERE HAS BEEN NO SHOWING THAT RESPONDENT
 REFUSED TO ARBITRATE, NO S