32:0322(50)AR - - Independent Letterman Hospital Workers Union and Army, Letterman Army Medical Center, Nutrition Care Division, Presidio of San Francisco, CA - - 1988 FLRAdec AR - - v32 p322
[ v32 p322 ]
The decision of the Authority follows:
32 FLRA No. 50
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INDEPENDENT LETTERMAN HOSPITAL
DEPARTMENT OF THE ARMY
LETTERMAN ARMY MEDICAL CENTER
NUTRITION CARE DIVISION
PRESIDIO OF SAN FRANCISCO
Case No. 0-AR-1510
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator John Kagel. The Arbitrator ruled that the Union's grievance was not arbitrable. The Union filed an exception 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 Agency filed an opposition.
We conclude that the Union's exception constitutes disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and provides no basis for finding the award deficient. Therefore, the exception is denied.
II. Background and Arbitrator's Award
According to the Arbitrator, the questions raised by the Union in its grievance were whether a "fractional hour" issue and a "schedule of work days" issue were arbitrable. Award at 1. The Arbitrator quoted from a statement made by the Union's representative at the arbitration hearing in which the representative referred to an off-the-record discussion between the parties concerning the resolution of the arbitrability question. The Union representative stated:
That resolution . . . will take the form of a stipulation between the parties that this isn't a matter subject to arbitration and we make that stipulation based upon the provisions of Article 22 of the grievance procedure, namely Section 2 I, which excludes from the grievance procedure actions reviewable under the Fair Labor Standards Act.
Award at 1-2.
The Arbitrator ruled that based on the Union's statement and the specific facts and circumstances of the case, the grievance was not arbitrable. He also ruled that the Union was the losing party in the arbitration.
III. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator relied on an agreement provision, Article 22, Section 2.I, which had "no force and effect" because it was "suspended" from the agreement 4 months prior to the hearing. Exceptions at 1. The Union maintained that Article 22, Section 2.I was contrary to law and not permissible under the agreement because it excluded disputes under the Fair Labor Standards Act from the negotiated grievance procedure. The Union contends that the grievance in this case is a Union grievance over interpretation of the collective bargaining agreement and that the grievance cannot be excluded under Article 22, Section 2.I.
The Agency filed an opposition contending that the Arbitrator correctly determined that the issues were not arbitrable.
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, 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 the Federal courts in private sector labor relations cases.
The Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement. The Union's representative stipulated to the Arbitrator that Article 22, Section 2.I of the agreement excluded actions reviewable under the Fair Labor Standards Act from the grievance procedure. The Union's representative also stipulated that the issues in this case were matters reviewable under that Act. Award at 3. The Arbitrator accepted that stipulation and ruled that those issues were not arbitrable. See, for example, U.S. Army Corps of Engineers, Kansas City District and National Federation of Federal Employees, Local 29, 22 FLRA 151 (1986) (exception that arbitrator misinterpreted the collective bargaining agreement to find that a matter was not grievable constituted nothing more than disagreement with his interpretation and application of the agreement and provided no basis for finding the award deficient); American Federation of Government Employees, Local 2600 and Genera