30:1266(138)AR - AFGE Local 51 and Mint, Assay Office, San Francisco -- 1988 FLRAdec AR



[ v30 p1266 ]
30:1266(138)AR
The decision of the Authority follows:


 30 FLRA NO. 138
30 FLRA 1266

 29 JAN 1988


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 51, AFL-CIO

                   Union

         and

U.S. MINT, U.S. ASSAY OFFICE
SAN FRANCISCO

                   Agency

Case No. 0-AR-1390

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Donald H. Wollett. The Arbitrator determined
that under the parties' collective bargaining agreement, issues
concerning the propriety of a reduction-in-force (RIF) were not
grievable or arbitrable. He also concluded that the RIF was not a
pretext for racial discrimination. However, in order to remedy a
violation by the Agency of a procedural requirement concerning
notice to the Union of arbitrability allegations, the Arbitrator
ordered the Agency to permit the Union and the grievants to
pursue appeals with the Merit Systems Protection Board (MSPB)
without objecting to such appeals on timeliness grounds.

     The exceptions were filed by the Agency under section
7122(a) of the Federal Service Labor - Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
The Agency excepts to the remedial portion of the award, arguing
that it is contrary to law and that the Arbitrator exceeded his
authority. The Union did not file an opposition to the Agency's
exceptions. We conclude that the Arbitrator exceeded his
authority by awarding a remedy after finding that the subject
matter of the dispute was not grievable or arbitrable and that he
lacked jurisdiction. Accordingly, we will modify the award to
strike the remedy. 

     II. Background and Arbitrator's Award

     This case arose as a result of a RIF at the Agency. The
Union filed a grievance protesting the procedures followed by the
Agency in implementing the RIF. The Union also alleged that the
RIF was a pretext for racial discrimination. The grievance was
submitted to arbitration.

     The Arbitrator found that the parties had provided for
appeals of issues concerning employee RIF notices to the MSPB and
that such matters were excluded from coverage under the parties'
agreement. Award at 5. He also found that the Agency had not
complied with a procedural requirement in the parties' negotiated
grievance procedure that rejection of a grievance on the grounds
of nonarbitrability must be served on the Union in writing at the
step of the grievance procedure preceding arbitration. Award at
8-9. He concluded that the subject matter of the grievance was
excluded from the grievance procedure. However, concerning the
Agency's violation of the procedural requirement in the parties'
agreement, the Arbitrator made inconsistent findings. He found
that the Agency's procedural violation did not give him
jurisdiction over the dispute, Award at 10. He also found that
the lack of subject matter jurisdiction did not "adversely affect
his authority to deal with the question of the (Agency's)
compliance with Article 30  governing the procedural obligations
of the parties under the grievance machinery." Award at 12 n.3.
The Arbitrator concluded that the Agency's procedural violation
required remedial relief. Award at 10.

     The Arbitrator further found that his conclusion that the
subject matter of the grievance was not arbitrable did not
preclude him from resolving the Union's allegation that the RIF
was a pretext for racial discrimination. He found that an
allegation of "discrimination within the meaning of 5 U.S.C.
2302(b) is either arbitrable under the grievance machinery or
appealable to the MSPB, at the grievant's option." Award at 12.
As to the merits of the Union's allegation, he concluded that
there was insufficient evidence to establish racial
discrimination. Award at 13-14.

     The Arbitrator dismissed all but two of the issues because
they were not grievable or arbitrable. As to the two remaining
issues, he first dismissed that part of the grievance alleging
that the RIF was a pretext for racial discrimination. As a remedy
for the Agency's violation of the parties' negotiated grievance
procedure, the Arbitrator directed the Agency "to permit the
Union and the other grievants to perfect and pursue their appeal
rights to the (MSPB) without objection on any ground of
timeliness . . . ." Award at 14-15.

     III. Exceptions

     The Agency contends that the Arbitrator exceeded his
authority by: (1) assuming jurisdiction over ancillary issues
after ruling that he did not have subject matter jurisdiction
because the parties' agreement excludes RIF actions from
grievance and arbitration; (2) ruling that the Agency must allow
the Union to file an appeal with the MSPB without objection on
any timeliness ground; and (3) finding that the Agency violated
the negotiated grievance procedure because no legitimate issue of
grievability or arbitrability existed.

     The Agency also alleges that by granting employees an appeal
right before MSPB and by restricting an Agency's right before
MSPB, the Arbitrator's award is contrary to law.

     IV. Analysis and Conclusions

     We find that the Arbitrator exceeded his authority. As
noted, the threshold issue for resolution was whether the
Agency's action in directing and implementing the RIF was
arbitrable. The Arbitrator found that under the parties'
agreement, questions concerning the propriety of the Agency's
direction and its implementation of the RIF were not grievable or
arbitrable. Award at 5, 9-10, 11. As noted above, the Arbitrator
made inconsistent findings regarding the Agency's violation of a
procedural requirement in the parties' agreement. He found that
the Agency's failure to comply with one of the procedural
requirements of the parties' negotiated grievance procedure did
not give him jurisdiction over the subject matter, which the
parties had excluded from his authority. Award at 10-11. However,
he also found that the lack of subject matter jurisdiction did
not preclude him from resolving the question of whether the
Agency had complied with the procedural obligations of the
parties under the grievance machinery. Award at 12 n.3.

     We conclude that the Arbitrator's authority over the
nondiscrimination aspects of the grievance ended when he
determined that the subject matter was excluded from coverage of
the parties' agreement and that he was without jurisdiction in
the matter. The Arbitrator's finding that the lack of subject
matter jurisdiction did not preclude him from deciding the issue
of the Agency's compliance with a procedural requirement of the
parties' agreement is inconsistent. The issue of whether the
Agency complied with  the agreement's procedural
requirements is limited to the issue of the RIF. Since the
overall issue of the RIF was not grievable or arbitrable under
the parties' agreement, the ancillary issues likewise were not
grievable or arbitrable. Therefore, by awarding a remedy after
finding that he was without jurisdiction to resolve the dispute,
the Arbitrator exceeded his authority. See Veterans
Administration and American Fed