11:0055(20)CA - Army, 83rd U.S. Army Reserve Command, Columbus, OH and Council of Locals No. 213, AFGE and AFGE Local 3158 -- 1983 FLRAdec CA



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11:0055(20)CA
The decision of the Authority follows:


 
 11 FLRA No. 20
 
 DEPARTMENT OF THE ARMY
 83rd UNITED STATES ARMY RESERVE COMMAND,
 COLUMBUS, OHIO
 Respondent
 
 and
 
 COUNCIL OF LOCALS NO. 213, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3158,
 AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-997
 
                           DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and the parties' contentions, the Authority finds:
 
    The stipulated issue presented is whether the Respondent, by refusing
 to proceed to arbitration on a grievance involving the termination of a
 unit employee unless the arbitrator first held a hearing on the question
 of arbitrability, and then, if warranted, a separate hearing on the
 merits of the grievance (i.e., a "bifurcated" hearing), has failed and
 refused to comply with section 7121 of the Statute in violation of
 section 7116(a)(8), and has refused to bargain in good faith with the
 Union in violation of section 7116(a)(1) and (5).
 
    The record indicates that, subsequent to the Charging Party's request
 to proceed to arbitration under the parties' negotiated grievance
 procedure, the parties jointly notified Arbitrator Kindig that he had
 been selected by them to hear a grievance involving the termination of
 employee Harold Frakes.  Following a dispute between the parties and
 presentation of their respective positions to Arbitrator Kindig as to
 whether a bifurcated hearing should be conducted in this matter, the
 arbitrator informed the parties by letter that he had scheduled the
 arbitration hearing and that both the arbitrability issue and the merits
 of the case would be heard on the same day.  As a result of the
 arbitrator's procedural determination, the Respondent notified the
 arbitrator and the Charging Party in writing that it refused to
 participate in the arbitration proceeding and, further, that it
 considered the hearing cancelled.  As a result, the hearing never took
 place.
 
    In Department of Labor, Employment Standards Administration/Wage and
 Hour Division, Washington, D.C., 10 FLRA No. 60 (1982), the Authority
 found a refusal by the Respondent to participate in arbitration
 proceedings pursuant to a negotiated grievance procedure to be
 inconsistent with section 7121