22:0437(42)CA - Health Care Financing Administration and AFGE Local 1923 -- 1986 FLRAdec CA



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22:0437(42)CA
The decision of the Authority follows:


 22 FLRA No. 42
 
 HEALTH CARE FINANCING ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-30618
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties who have
 agreed that no material issue of fact exists.  Briefs for the
 Authority's consideration were filed by the Respondent and the General
 Counsel.  The complaint alleges that the Respondent, Health Care
 Financing Administration, violated section 7116(a)(1) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 refusing to participate in the arbitration of a grievance filed on
 behalf of a bargaining unit employee by the American Federation of
 Government Employees, Local 1923, AFL-CIO (the Union), the agent of the
 American Federation of Government Employees, AFL-CIO (AFGE) in matters
 concerning the Respondent's Headquarters employees.
 
                                II.  Facts
 
    The Union filed a grievance on behalf of employee Floyd McDaniels on
 March 31, 1983, pursuant to the negotiated grievance procedure contained
 in the agreement between AFGE and the Respondent.  On May 10, 1983, the
 Union advised the Respondent that it was referring McDaniels' grievance
 to arbitration in accordance with the negotiated grievance procedure.
 On June 1, 1983, the Union submitted a signed copy of a Federal
 Mediation and Conciliation Service "Request for Arbitration Panel" to
 the Respondent for its concurring signature.  On June 6, 1983, the
 Respondent advised the Union that it was refusing to participate in the
 arbitration proceeding because the issue raised was "not an appropriate
 grievance under our negotiated grievance procedure."
 
                              III.  The Issue
 
    Whether the Respondent violated section 7116(a)(1) and (8) of the
 Statute by refusing to participate in the arbitration of a grievance
 filed by the Union on March 31, 1983, on behalf of a bargaining unit
 employee, under the parties' negotiated grievance procedure.
 
                       IV.  Positions of the Parties
 
    The General Counsel contends that the Respondent violated section
 7116(a)(1) and (8) of the Statute by refusing to proceed to arbitration
 on the grounds that the matter was not grievable under the parties'
 negotiated agreement.  The General Counsel specifically relies on the
 Authority's rationale in Department of the Navy, Portsmouth Naval
 Shipyard, Portsmouth, New Hampshire, 11 FLRA 456 (1983), in which an
 agency was found to have failed to comply with the requirements of
 section 7121 of the Statute by refusing to participate in binding
 arbitration of a grievance which it believed to pose an issue that was
 excluded by the terms of the parties' negotiated agreement.
 
    The Respondent contends that its refusal to participate in the
 arbitration proceeding based on the belief that the subject matter of
 the Union's grievance, contracting out, was not an appropriate subject
 for arbitration pursuant to the parties' agreement, did not prevent the
 Union from proceeding to arbitration on its own.  The Respondent further
 contends that it never expressed an unwillingness to be bound by such an
 arbitrability award or to share in the costs of the Union's decision to
 proceed to arbitration.  In conclusion, the Respondent asserts that the
 intent of section 7121 of the Statute is to permit either party to
 proceed with arbitration alone, and that the process is not discouraged
 despite the Authority's contrary views in prior decisions.
 
                               V.  Analysis
 
    It has long been established that section 7121 of the Statute
 mandates that each collective bargaining agreement shall provide
 procedures for the settlement of grievances, including questions of
 arbitrability, and unless the parties, consistent with law, mutually
 agree otherwise, such procedures must be read as providing that all
 questions of arbitrability not otherwise resolved shall be submitted to
 arbitration.  See Interpretation and Guidance, 2 FLRA 273, 278 n.7
 (1979).  Further, as stated by the Authority in Department of Labor,
 Employment Standards Administration/Wage and Hour Division, Washington,
 D.C., 10 FLRA 316, 321 (1982), and reaffirmed here, "(w)hile nothing in
 the Statute precludes either party from invoking arbitration and
 proceeding ex parte if necessary, a refusal by the other party to
 participate in the 'procedures for the settlement of grievances,
 including questions of arbitrability' . . . conflicts with the
 requirements of section 7121." As found in the Department of Labor case,
 such a failure to comply with the requirements of section 7121
 constitutes a violation of section 7116(a)(1) and (8) of the Statute.
 See also Department of the Navy, Portsmouth Naval Shipyard, Portsmouth,
 New Hampshire, 11 FLRA 456 (1983), and Department of the Army, 83rd
 United States Army Command, Columbus, Ohio, 11 FLRA 55 (1983).  Further,
 without deciding whether the result would have been different in this
 case if the Respondent had signified its willingness to be bound by and
 share the costs of the arbitrator's decision, the record contains no
 evidence that the Respondent notified the Union of any such intentions.
 
                              VI.  Conclusion
 
    The Authority has considered all the facts and circumstances of this
 case, including the positions of the parties.  The Authority concludes
 that the Respondent's refusal to proceed to arbitration constituted a
 failure to comply with the requirements of section 7121 of the Statute
 in violation of section 7116(a)(1) and (8).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Health Care Financing Administration shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally refusing or failing to proceed to arbitration
       regarding a grievance filed by the American Federation of
       Government Employees, Local 1923, AFL-CIO, as the agent for the
       American Federation of Government Employees, AFL-CIO, the
       employees' exclusive representative, regarding the conversion of
       the functions of the Office of Direct Reimbursement (ODR) to the
       private sector, after receiving timely notice of the exclusive
       representative's desire to invoke arbitration.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request, proceed to arbitration regarding the
       grievance filed by the American Federation of Government
       Employees, Local 1923, AFLO-CIO, regarding the conversion of the
       functions of the Office of Direct Reimbursement (ODR) to the
       private sector.
 
          (b) Post at its Headquarters facilities copies of the attached
       Notice on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms, they shall be signed by
       the Administrator, or a designee, and shall be posted and
       maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region III, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       with it.
 
    Issued, Washington, D.C., July 9, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
                                 APPENDIX
 
 NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 THE FEDERAL
 LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 POLICIES OF
 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally refuse or fail to proceed to arbitration
 regarding a grievance filed by the American Federation of Government
 Employees, Local 1923, AFL-CIO, as the agent for the American Federation
 of Government Employees, AFL-CIO, the employees' exclusive
 representative, regarding the conversion of the functions of the Office
 of Direct Reimbursement (ODR) to the private sector, after receiving
 timely notice of the exclusive representative's desire to invoke
 arbitration.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their ri