33:0420(57)AR - - Army and Air Force Exchange Service and AFGE Local 2965 - - 1988 FLRAdec AR - - v33 p420



[ v33 p420 ]
33:0420(57)AR
The decision of the Authority follows:


33 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

Washington, D.C.

ARMY AND AIR FORCE EXCHANGE SERVICE

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL NO. 2965

0-AR-1549

DECISION

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Preston J. Moore filed by the American Federation of Government Employees, AFL-CIO (AFGE) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. AFGE is the exclusive representative of a consolidated bargaining unit of employees of the Army and Air Force Exchange Service (the Agency). The Agency did not file an opposition to AFGE's exceptions.

The Agency filed a grievance which alleged that the local agreement between the Army and Air Force Exchange Service, Fort Worth General Merchandise Distribution Activity (the Activity) and AFGE Local No. 2965 (the Union) was violated when "the International Representative of the Union" contacted the Commander of the Agency concerning another grievance. Arbitrator's Award at 2. The local agreement directs the parties to make every effort to settle grievances at the lowest possible supervisory level. The Arbitrator sustained the Agency's grievance and directed the Union to comply with the agreement provision. AFGE contends that the Arbitrator erred because he applied the local agreement rather than the Master Agreement.

We find that there is insufficient information in the record for us to rule on the exceptions and to determine whether the Arbitrator erred in finding the local agreement to be controlling. Accordingly, we will remand the case to the parties for further processing consistent with this decision.

II. Background and Arbitrator's Award

The Agency employs 72,000 employees worldwide. The Union is the local representative of a bargaining unit of employees located at the Activity.

In June 1980, the Activity and the Union negotiated a local agreement. In 1981, AFGE was certified as the exclusive representative of a consolidated bargaining unit of the Agency's employees. On April 22, 1987, the Agency and AFGE entered into a Master Agreement.

On March 31, 1987, "the International Representative of the Union" sent a telegram to the Agency's Assistant General Counsel, Labor Relations Law Branch. Arbitrator's Award at 2. The telegram requested a meeting with management at 10:00 a.m. on April 3, 1987, to select an arbitrator for a pending grievance. On April 3, the International Representative "placed a telephone call to the [Agency Commander] in an attempt to complain about Management's absence at what he alleged to be a mutually arranged meeting to select an arbitrator." Arbitrator's Award at 2.

The Agency then filed a grievance alleging that the International Representative's contact with the Commander violated Article XXXII (Grievance Procedure), Sections 3 and 6 of the parties' local agreement. Those sections state:

Article XXXII - Grievance Procedure

Section 3. This negotiated procedure shall be the exclusive procedure available to the Union and the employees in the bargaining unit for resolving such grievances except as provided in Section 2.(d) of this Article. When an employee advises a management official or supervisor that he has a grievance, he will be afforded the opportunity within a reasonable time and without undue delay to have a Union representative and present the grievance.

Section 6. Most grievances arise from misunderstandings or disputes which can be settled promptly and satisfactorily on an informal basis at the immediate supervisory level. The Employer and the Union agree that every effort will be made by management and the aggrieved party(s) to settle grievances at the lowest possible level.

The grievance was submitted to arbitration. The Arbitrator framed the issue as whether "the Union violate[d] Article XXXII, Section 3 and/or 6, [of the] Collective Bargaining Agreement by circumventing the negotiated grievance procedure? If so, what is the proper remedy?" Arbitrator's Award at 1.

The Agency contended before the Arbitrator that the Activity's mailroom did not receive the Union telegram until 10:52 a.m. on April 3 and, therefore, management was not apprised of any request for a meeting. Additionally, the Agency contended that there was no agreement to meet on April 3. According to the Agency, the International Representative simply made a request for a meeting on that date. The Agency alleged that the International Representative should have attempted to resolve the matter at the lowest possible level instead of making a call to the Agency Commander.

The Union contended that "the matter involved herein is not involved in the grievance procedure, and the Union's right to call the Commander . . . is not restricted by the Agreement." Arbitrator's Award at 3.

The Arbitrator sustained the Agency's grievance. He found that the local agreement was still in effect, and that it "is controlling in the instant case." Arbitrator's Award at 2. The Arbitrator ruled that the right of the Union to call the Agency Commander "is not impaired by the Agreement except under Section 6 and the limitations placed thereunder." Arbitrator's Award at 3-4. The Arbitrator determined that the evidence in this case indicated that the International Representative telephoned the Agency Commander in an attempt to settle a grievance, and that this action constituted a violation of section 6 of the agreement because the International Representative did not attempt to settle the grievance at the lowest possible level. Finally, the Arbitrator sustained the grievance and directed the Union "to comply with Section 6 of Article XXXII and make every effort to settle grievances at the lowest possible level." Arbitrator's Award at 4.

III. Positions of the Parties

AFGE contends that the Arbitrator's award violates section 7121(a)(1) of the Statute. AFGE asserts that by directing the parties to comply with the grievance procedure in the local agreement even though there is now a grievance procedure under the Master Agreement, the award permits the existence of multiple grievance procedures and, therefore, violates the requirement of section 7121(a)(1) that there be only one negotiated grievance procedure. AFGE points out as an example of a practical problem caused by having two grievance procedures, that the award in this case "is the culmination of an arbitral procedure under Article 44 of the Master Agreement, but jumps to the Local 2965 agreement in identifying the language to be interpreted in deciding disputes." AFGE Exceptions at 3 n.5. AFGE also contends that the award violates section 7114(a)(1) of the Statute by "conferring superior status on a local agreement that would elevate it above the Master Agreement." AFGE's Exceptions at 5. AFGE asserts that where, as here, units are consolidated, "local agreements must be subordinated to agreements entered into at the new level of recognition." Id.

AFGE further contends that the "award is deficient as based on gross error but for which a different result would have been reached, and does not draw its essence from the controlling collective bargaining agreement." AFGE's Exceptions at 6. According to AFGE, the Arbitrator erred in determining that the local agreement is controlling in this matter and asserts that the local grievance procedure cannot be controlling in any dispute decided after April 22, 1987, the effective date of the Master Agreement. AFGE refers to Article 4 of the Master Agreement, which provides that local agreements "shall not conflict with or duplicate the Master Agreement." AFGE's Exceptions at 6, 7.

AFGE also asserts that the award "lacks fidelity to the obligation of arbitration to resolve the dispute." AFGE's Exceptions at 7. AFGE contends that the award does not resolve the dispute because the local agreement's grievance procedure provisions, which were the sole basis of the award, are no longer in effect. AFGE contends that the interpretation of the Master Agreement's grievance procedure was not addressed and remains unresolved.

The Agency did not file an opposition to AFGE's exceptions.

IV. Discussion

We conclude that there is insufficient information in the record for us to rule on the exceptions. Accordingly, we will remand the matter to the parties for further processing consistent with this decision.

The essence of AFGE's exceptions is its contention that the Arbitrator improperly found that the local agreement was controlling in this case, notwithstanding implementation of the Master Agreement. AFGE argues that as a result of this incorrect premise, the Arbitrator's award: (1) violates the exclusivity requirement of section 7121(a)(1) of the Statute by requiring the existence of two parallel grievance procedures in the local supplemental agreement and the Master Agreement; (2) interferes with AFGE's rights as exclusive representative under section 7114(a)(1) by making the local agreement controlling over the Master Agreement; (3) is deficient because it is based on gross error--application of the local agreement--but for which the Arbitrator would have reached a different result; (4) fails to draw its essence from the agreement; and (5) fails to resolve the parties' dispute.

The question of the relationship between the grievance and the local and Master Agreements is not clear from the record before us. The grievance procedure provisions of the two agreements contain some similarities as well as substantial differences. The local agreement was entered into in June 1980. The effective date of the Master Agreement was April 22, 1987. The events giving rise to the instant grievance occurred in late March and early April 1987. It is unclear from the Arbitrator's award and the Union's exceptions when the grievance was filed by the Agency. It is also unclear whether the grievance was filed under the local agreement or the Master Agreement. See AFGE's Exceptions at 3 n.5. The Arbitrator's award, dated April 5, 1988, directs the Union to comply with a provision of the local agreement. The Master Agreement states, among other things, that it is the controlling collective bargaining agreement between the parties.

Based on the record before us, we cannot resolve the Union's exceptions.

Accordingly, we will remand this matter to the parties. In doing so, we urge the parties to resolve this dispute without resort to further third-party proceedings. This matter is one which should be worked out by the parties bilaterally. This dispute centers around a provision requiring the parties to make every effort to settle grievances at the lowest possible level. The case arose because the parties could not mutually resolve a grievance as to the application of that well-accepted principle. Resolution of this dispute by the parties without the need for third-party resolution would enhance the possibility for a successful labor-management relationship. If the parties are incapable of resolving this matter on their own, they are directed to resubmit the dispute to arbitration.

V. Decision

The case is remanded to the parties for resolution consistent with this decision.

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