09:0381(45)AR - National Archives and Records Service, GSA and Local 2578, AFGE -- 1982 FLRAdec AR

 9 FLRA No. 45
 
 NATIONAL ARCHIVES AND
 RECORDS SERVICE, GENERAL
 SERVICES ADMINISTRATION
 Agency
 
 and
 
 LOCAL 2578, AMERICAN
 FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-137
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR WILLIAM M. EDGETT FILED BY THE AGENCY 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 UNION FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE GRIEVANT'S PROTEST OF HER
 PERFORMANCE EVALUATION.  THE AGENCY REFUSED TO PROCESS THE GRIEVANCE ON
 THE GROUND THAT THE GRIEVANT WAS A MANAGEMENT OFFICIAL AND THEREFORE
 EXCLUDED FORM THE BARGAINING UNIT AND FROM USE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    THE UNION REQUESTED ARBITRATION UNDER THE PARTIES' AGREEMENT WHICH
 PROVIDES THAT GRIEVABILITY/ARBITRABILITY QUESTIONS SHALL BE SUBMITTED
 FOR ARBITRAL RESOLUTION PRIOR TO SUBMITTING THE MERITS OF THE GRIEVANCE
 TO AN ARBITRATOR.  HOWEVER, THE AGENCY TOOK THE POSITION THAT THE
 QUESTION BEING SUBMITTED TO ARBITRATION WAS NOT ONE OF
 GRIEVABILITY/ARBITRABILITY AS THAT TERM IS USED IN THE AGREEMENT.  IT
 ALSO CONTENDED THAT BECAUSE THE UNION HAD FILED A UNIT CLARIFICATION
 (CU) PETITION CONCERNING THE GRIEVANT'S POSITION WITH THE AUTHORITY, IT
 HAD WAIVED ITS RIGHT TO HAVE THE QUESTION DECIDED UNDER THE NEGOTIATED
 AGREEMENT.  FINALLY, THE AGENCY ARGUED THAT THE AUTHORITY HAS SOLE
 JURISDICTION TO DECIDE SUCH CU DISPUTES AND THAT ANY AWARD ON THE MATTER
 WOULD BE UNENFORCEABLE.
 
    THE ARBITRATOR FRAMED THE ISSUE AS FOLLOWS:
 
    CAN THE ARBITRATOR APPOINTED TO HEAR THE MERITS OF THE GRIEVANCE
 DETERMINE WHETHER THE
 
    GRIEVANT IS IN THE BARGAINING UNIT, NOTWITHSTANDING THE PENDENCY OF A
 UNIT CLARIFICATION
 
    PETITION INVOLVING THE GRIEVANT?
 
    IN HIS AWARD, AFTER FINDING THAT THE QUESTION BEFORE HIM WAS "CLEARLY
 ONE OF GRIEVABILITY/ARBITRABILITY" AS THAT TERM IS USED IN THE
 AGREEMENT, THE ARBITRATOR RULES THAT THE PENDING CU PETITION DID NOT BAR
 THE UNION'S RIGHT TO ARBITRATION AND DID NOT CONSTITUTE A WAIVER OF THAT
 RIGHT.  HE NOTED, HOWEVER, THAT AN AWARD ON THE QUESTION OF UNIT STATUS
 COULD BE SET ASIDE BY THE AUTHORITY ON REVIEW IF THE AWARD IS CONTRARY
 TO LAW.  THE ARBITRATOR THEN STATED:
 
    HOWEVER, AN ESSENTIAL POINT TO BE CONSIDERED HERE IS THAT THE PARTIES
 HAVE AGREED UPON THE
 
    DEFINITION OF THE UNIT AND IT IS DESCRIBED IN ARTICLE I.  THE
 ARBITRATOR WHO HEARS THE
 
    GRIEVANCE ON THE MERITS WILL NOT BE DECIDING A QUESTION OF POLICY
 WITH RESPECT TO UNIT
 
    DETERMINATION.  THE QUESTION TO BE DECIDED IS ONE OF FACT, I.E., DOES
 (THE GRIEVANT'S)
 
    POSITION FIT WITHIN THE UNIT DEFINITION WHICH HAS BEEN ESTABLISHED BY
 THE PARTIES AND WHICH IS
 
    A PART OF THEIR NEGOTIATED AGREEMENT.
 
    ON THIS BASIS THE ARBITRATOR RULES THAT THE GRIEVANCE WAS ARBITRABLE
 AND THE ARBITRATOR APPOINTED TO HEAR THE GRIEVANCE ON THE MERITS WOULD
 HAVE THE AUTHORITY TO DETERMINE WHETHER THE GRIEVANT IS OR IS NOT IN THE
 BARGAINING UNIT, "NOTWITHSTANDING THE PENDENCY OF A UNIT CLARIFICATION
 PETITION."
 
    IN ITS EXCEPTION THE AGENCY ALLEGES THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO SECTIONS 7105(A)(2) AND 7112(A)(1) OF THE
 STATUTE.  THE AGENCY CONTENDS THAT THOSE SECTIONS OF THE STATUTE WHICH
 PROVIDE IN ESSENCE THAT THE AUTHORITY SHALL DETERMINE THE
 APPROPRIATENESS OF ANY UNIT EFFECTIVELY PRECLUDE THE USE OF ANY OTHER
 FORUM, SUCH AS ARBITRATION, TO DETERMINE WHETHER AN EMPLOYEE IS INCLUDED
 IN OR EXCLUDED FROM A BARGAINING UNIT.  THE AGENCY MAINTAINS THAT THE
 ISSUE IN THE PRESENT CASE IS NOT ONE OF ARBITRABILITY BUT OF UNIT
 CLARIFICATION AND CAN BE DECIDED ONLY BY THE AUTHORITY.
 
    HOWEVER, THE AGENCY HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR'S
 AWARD IN THIS CASE IS CONTRARY TO THE STATUTE.  AS THE AGENCY POINTS
 OUT, THE AUTHORITY HAS THE RESPONSIBILITY UNDER THE STATUTE TO DETERMINE
 APPROPRIATE UNITS, A RESPONSIBILITY WHICH MAY INCLUDE THE RESOLUTION OF
 FACTUAL DISAGREEMENTS BETWEEN UNIONS AND AGENCIES OVER WHETHER CERTAIN
 EMPLOYEES ARE IN OR OUT OF A CERTIFIED BARGAINING UNIT.  THE SPECIFIC
 MEANS PROVIDED FOR SECURING SUCH A RESOLUTION IS THE FILING OF A CU
 PETITION UNDER SECTION 2422.2(C) OF THE AUTHORITY'S RULES AND
 REGULATIONS.  CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION AND THE
 LIBRARY OF CONGRESS, 3 FLRA 737, 739(1980).
 
    CONTRARY TO THE ASSERTIONS OF THE AGENCY, HOWEVER, IN CIRCUMSTANCES
 SUCH AS THOSE PRESENT HERE, WHERE THE UNRESOLVED QUESTION OF A
 GRIEVANT'S BARGAINING UNIT STATUS IS RAISED AS A COLLATERAL ISSUE TO A
 GRIEVANCE OTHERWISE PROPERLY BROUGHT UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, THE STATUTE IN NO MANNER PROHIBITS AN ARBITRATOR FROM
 ADDRESSING THAT COLLATERAL ISSUE.  THUS, AN ARBITRATOR MAY PROPERLY MAKE
 A FACTUAL DETERMINATION REGARDING THE BARGAINING UNIT STATUS OF A
 JURISDICTION TO RESOLVE THE GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE.  OF COURSE, THAT DETERMINATION MUST BE CONSISTENT WITH THE
 STATUTE AND RELEVANT DECISIONS OF THE AUTHORITY.  FURTHERMORE, AS NOTED,
 THE ARBITRATOR IN THIS CASE EXPRESSLY RECOGNIZED THAT LIMITATION WHEN HE
 STATED THAT THE SUBSEQUENT ARBITRATOR'S DETERMINATION COULD BE SET ASIDE
 BY THE AUTHORITY ON REVIEW IF THAT AWARD WERE CONTRARY TO LAW.
 CONSEQUENTLY, THE AUTHORITY FINDS THAT THE AGENCY'S EXCEPTION PROVIDES
 NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IF SO FINDING, HOWEVER, THE AUTHORITY EMPHASIZES THAT ALTHOUGH AN
 ARBITRATOR IS NOT PROHIBITED BY THE STATUTE FROM DETERMINING A
 COLLATERAL ISSUE AS TO THE UNRESOLVED BARGAINING UNIT STATUS OF A
 GRIEVANT IN THE COURSE OF DECIDING A GRIEVANCE, THE NEGOTIATED GRIEVANCE
 PROCEDURE AND ARBITRATION MAY NOT BE USED IN PLACE OF A CLARIFICATION OF
 UNIT PETITION AND MAY NOT BE USED TO CHALLENGE OR DISPUTE A DECISION OF
 THE AUTHORITY CLARIFYING A BARGAINING UNIT.  UNDER THE STATUTE AND THE
 AUTHORITY'S REGULATIONS, DECISIONS CLARIFYING BARGAINING UNITS ARE
 EXCLUSIVELY AND FINALLY RESOLVED BY THE AUTHORITY UPON THE FILING OF A
 CU PETITION.
 
    IN THIS REGARD, AS NOTED PREVIOUSLY, THE UNION FILED WITH THE
 AUTHORITY A CU PETITION SEEKING TO CLARIFY THE BARGAINING UNIT STATUS OF
 VARIOUS POSITIONS IN THE AGENCY INCLUDING THE POSITION OF THE GRIEVANT.
 THE AUTHORITY HAS ISSUED A DECISION IN THAT MATTER AND HAS DETERMINED
 THAT THE GRIEVANT'S POSITION, POSITION NO. R546, MANAGEMENT ANALYST,
 GS-343-14, IS NOT THAT OF A MANAGEMENT OFFICIAL AND HAS ORDERED THAT THE
 POSITION REMAIN IN THE EXCLUSIVELY RECOGNIZED UNIT.  GENERAL SERVICES
 ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE, WASHINGTON, D.C.
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2578, AFL-CIO, 8
 FLRA NO. 73 AT 5-6(1982).
 
    FOR THE FOREGOING REASONS THE AGENCY'S EXCEPTION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., JULY 2, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY