32:0124(17)AR - - Army and Air Force Exchange Service (Fort Hood, TX) and AFGE Local 1920 - - 1988 FLRAdec AR - - v32 p124
[ v32 p124 ]
The decision of the Authority follows:
32 FLRA No. 17
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
ARMY & AIR FORCE EXCHANGE SERVICE
(FORT HOOD, TEXAS)
LOCAL 1920, AMERICAN FEDERATION OF
Case No. 0-AR-1488
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Lennart V. Larson. The Arbitrator sustained the Activity's grievance, finding that the Union violated the parties' 1981 collective bargaining agreement by contacting the Army & Air Force Exchange Service's headquarters over a local health and safety matter.
The Union filed exceptions 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 did not file an opposition.
We conclude that the Union has not established that (1) the Arbitrator exceeded his authority, (2) the selection of the Arbitrator was improper, or (3) the Arbitrator's conduct of the grievance proceedings was improper. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Activity filed a grievance claiming that the Union violated the parties' 1981 collective bargaining agreement when it contacted the Exchange Service's headquarters regarding a local safety and health matter that the Activity was attempting to resolve. The Union denied the grievance but refused to join the Activity in requesting a list of arbitrators in order to select an arbitrator to resolve the grievance. The Union also refused to join the Activity in selecting an arbitrator from a list provided to the Activity by the Federal Mediation and Conciliation Service.
When the Union continued to refuse to participate in the selection of an arbitrator, the Activity selected Arbitrator Larson without the Union's participation. The Activity also filed an unfair labor practice (ULP) charge against the Union. That ULP charge led to the issuance of a decision and recommended order of the Chief Administrative Law Judge. When no exceptions were filed, the Authority adopted the decision and recommended order and found that the Union had violated the Statute by refusing to proceed to arbitration. The Authority ordered the Union to proceed to arbitration on request of the Activity. As a result, the Activity's grievance was ultimately submitted to arbitration before Arbitrator Larson.
Before the Arbitrator, the Union raised several issues of arbitrability. As relevant to this case, the Union claimed that the Activity's grievance was moot because prior to the arbitration hearing, the parties' 1981 collective bargaining agreement was superseded by a new master agreement. The Arbitrator rejected the Union's contention that the grievance was moot. The Arbitrator concluded that the grievance did not lose its validity because the contract under which it arose had expired. The Arbitrator also noted that the arbitration was held after the 1981 agreement had been superseded because the Union had refused to participate in the proceeding until ordered to do so by the Authority.
On the merits, the Arbitrator sustained the grievance. He determined that the Union had violated the 1981 agreement by communicating with the Exchange Service's headquarters. As a remedy, the Arbitrator ruled that in view of the new master agreement, it was sufficient to state that the Union had violated the 1981 agreement by its actions.
III. Union Exceptions
The Union contends that the Arbitrator exceeded his authority. The Union argues that the grievance was not properly before the Arbitrator because the 1981 agreement had expired by the time of the hearing before the Arbitrator. The Union also contends that the Arbitrator refused to rule on the arbitrability issues raised by the Union prior to the hearing and that it was not allowed to participate in the selection of the Arbitrator.
We conclude that the Union has not established that the Arbitrator's award is deficient on any grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union's contention that the Arbitrator exceeded his authority because the 1981 agreement expired before the award was issued provides no basis for finding the award deficient. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (the Court held that an award rendered after the expiration of the collective bargaining agreement was enforceable); Piper v. Meco, Inc., 302 F. Supp. 926 (N.D. Ohio 1968), aff'd 412 F.2d 752 (6th Cir. 1969). The U.S. District Court in Piper rejected the contention that the award was unenforceable because the collective bargaining agreement had expired before the award was issued. The court held that such a contention "would permit a party simply to stall the arbitration hearing until after the expiration of the contract and thus not be bound by the award." 302 F.Supp. at 927.
The Union's contention that the award is deficient because it was not allowed to participate in the selection of the Arbitrator provides no basis for finding the award deficient. As found by the Authority in the related unfair labor practice case, the Union was requested to participate in the selection of the Arbitrator, but refused to do so in violation of section 7116(b)(1) and (8) of the Statute. The Union cannot now complain about the selection of the Arbitrator.
The Union's contention that the award is deficient because the Arbitrator refused to resolve the issues relating to arbitrability in advance of the hearing also provides no basis for finding the award deficient. See, for example, Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) (the fact that the arbitrator conducted the hearing in a manner that one party finds objectionable does not provide a basis for finding an award deficient).
The Union's exceptions are denied.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.)