09:0378(44)AR - San Antonio Air Logistics Center, Kelly AFB, San Antonio, TX and AFGE Local 1617 -- 1982 FLRAdec AR



[ v09 p378 ]
09:0378(44)AR
The decision of the Authority follows:


 9 FLRA No. 44
 
 SAN ANTONIO AIR LOGISTICS
 CENTER, KELLY AIR FORCE
 BASE, SAN ANTONIO, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1617
 Union
 
                                            Case No. 0-AR-172
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR BERNARD MARCUS FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE ACTIVITY FILED
 AN OPPOSITION.  /1/
 
    THIS MATTER CONCERNED A DISPUTE OVER THE CONTENTS OF A PARTICULAR
 PROMOTION EVALUATION PATTERN(PEP) FORMULATED BY THE ACTIVITY.  A
 GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO ARBITRATION.
 
    AT THE OUTSET THE ARBITRATOR DEALT WITH THE QUESTION OF WHETHER THE
 GRIEVANCE RAISED AN ARBITRABLE MATTER.  IN THIS RESPECT, BASED UPON HIS
 EXAMINATION OF "ALL OF THE(CITED) PROVISIONS OF THE CURRENT MASTER LABOR
 AGREEMENT, AS WELL AS THE PREDECESSOR MULTI-UNIT CONTRACT BETWEEN THE
 PARTIES," THE ARBITRATOR DETERMINED THAT THE GRIEVANCE WAS NOT
 SUBSTANTIVELY ARBITRABLE.  ACCORDINGLY, AS HIS AWARD HE DENIED THE
 GRIEVANCE AS NONARBITRABLE.
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE AWARD FINDING THE
 GRIEVANCE NONARBITRABLE IS "CONTRARY TO THE BODY OF FEDERAL LAW" WHICH
 HOLDS THAT "THERE EXISTS A PRESUMPTION IN FAVOR OF ARBITRABILITY." IN
 SUPPORT OF THIS EXCEPTION, THE UNION CITES TWO COURT CASES WHICH IT
 ALLEGES SETS FORTH THE POLICY FAVORING FINDING MATTERS ARBITRABLE.
 HOWEVER, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE COURT CASES CITED BY IT ARE INAPPOSITE.  NEITHER
 INVOLVED A COURT ACTION VACATING AN AWARD AND SUBSTITUTING THE COURT'S
 INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT FOR AN ARBITRATOR'S
 INTERPRETATION OF THAT AGREEMENT FINDING A PARTICULAR GRIEVANCE UNDER IT
 NONARBITRABLE.  INSTEAD, THE UNION IS DISAGREEING WITH THE ARBITRATOR'S
 INTERPRETATION OF THE AGREEMENT IN FINDING THE AUTHORITY HAS HELD DOES
 NOT PROVIDE A BASIS FOR FINDING AN AWARD DEFICIENT.  U.S. DEPARTMENT OF
 LABOR AND NATIONAL COUNCIL OF FIELD LABOR LOCALS, LOCAL 644, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, 6 FLRA NO. 61(1981).
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY WHEN HE ADDRESSED THE ARBITRABILITY OF THE
 GRIEVANCE.  IN SUPPORT THE UNION ARGUES THAT NEITHER PARTY AGREED TO
 SUBMIT THE QUESTION OF ARBITRABILITY TO THE ARBITRATOR AND THAT THE
 AGREEMENT REQUIRES THE ACTIVITY TO RAISE ANY ISSUE OF ARBITRABILITY
 DURING THE PROCESSING OF THE GRIEVANCE WHICH IT DID NOT DO.  HOWEVER,
 THE UNION HAS IN NO MANNER DEMONSTRATED THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY.  THE UNION HAS NOT SHOWN THAT THERE WAS A SUBMISSION
 AGREEMENT BY THE PARTIES WHICH WOULD HAVE SPECIFICALLY PRECLUDED THE
 ARBITRATOR FROM ADDRESSING THE ARBITRABILITY ISSUE WHICH WAS RAISED BY
 THE ACTIVITY AT THE HEARING.  FURTHER, TO THE EXTENT THAT THE UNION
 ASSERTS THAT THE AGREEMENT PRECLUDED THE ACTIVITY FROM RAISING THE
 ARBITRABILITY QUESTION AT THE HEARING WHEN IT HAD NOT PREVIOUSLY DONE SO
 DURING THE PROCESSING OF THE GRIEVANCE, SUCH AN ASSERTION CONSTITUTES
 DISAGREEMENT WITH WHETHER THERE HAS BEEN COMPLIANCE WITH THE PROCEDURAL
 REQUIREMENTS OF THE NEGOTIATED GRIEVANCE PROCEDURE AND PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.  E.G., AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 169 AND TINKER AIR FORCE BASE, AIR LOGISTICS
 CENTER, OKLAHOMA CITY, OKLAHOMA, 7 FLRA NO. 8(1981).
 
    IN ITS THIRD EXCEPTION, THE UNION CONTENDS THAT THE AWARD IS CONTRARY
 TO AN ARBITRABILITY DETERMINATION RENDERED BY THE ASSISTANT SECRETARY OF
 LABOR.  HOWEVER, THAT DETERMINATION OF THE ASSISTANT SECRETARY WAS
 RENDERED UNDER EXECUTIVE ORDER 11491 AND INVOLVED A DIFFERENT COLLECTIVE
 BARGAINING AGREEMENT.  THUS, THIS EXCEPTION IS ALSO WITHOUT MERIT.
 
    FO