34:0158(35)AR - DOD, RMY AND AIR FORCE EXCHANGE SERVICE FORT WORTH GENERAL MERCHANDISE DISTRIBUTION ACTIVITY and AFGE, LOCAL 2965 -- 1990 FLRAdec AR



[ v34 p158 ]
34:0158(35)AR
The decision of the Authority follows:


34 FLRA NO. 35




                    U.S. DEPARTMENT OF DEFENSE
                ARMY AND AIR FORCE EXCHANGE SERVICE
        FORT WORTH GENERAL MERCHANDISE DISTRIBUTION ACTIVITY

                                and

            AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                             LOCAL 2965

                             0-AR-1585

			      DECISION

     			   January 9, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Don J. Harr filed by Local No. 2965, American
Federation of Government Employees, AFL - CIO (the Union) 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 Army and Air Force Exchange Service,
Fort Worth General Merchandise Distribution Activity (the Agency)
did not file an opposition to the Union's exceptions.

     The Agency filed a grievance contesting the actions of a
Union shop steward who attempted to persuade a bargaining unit
member not to file a complaint against another employee. The
grievance was submitted to arbitration. The Arbitrator determined
that the grievance was arbitrable and that the Union steward's
conduct did not violate the parties' agreement. The Union excepts
only to the Arbitrator's determination that the Agency was not
bound by the time limits for filing grievances contained in the
parties' agreement. For the reasons stated below, the Union's
exceptions are denied. 

II. Background and Arbitrator's Award

     The Agency filed a grievance alleging that the Union
violated the parties' agreement. The Agency alleged that a Union
shop steward had attempted to persuade a unit employee not to
file a complaint against another employee. The Agency asserted
that the shop steward's action violated Article 12, Section 1 of
the collective bargaining agreement, which provides bargaining
unit members with the right to assist or refrain from assisting a
union.

     The Union asserted, among other things, that the grievance
was not arbitrable because the Agency: (1) was not entitled to
file grievances, either in its own behalf or on behalf of unit
employees; and (2) was bound by the time limits set forth in the
negotiated grievance procedure. The Arbitrator considered both
the question of arbitrability and the merits of the grievance.

     The Arbitrator determined that the Agency: (1) has the
right, under law and the parties' agreement, to file grievances;
(2) is not bound by the time limits for filing grievances
established in the parties' agreement; and (3) does not have the
right to file grievances on behalf of unit employees. The
Arbitrator also found that although the parties intended to
permit the Agency to file grievances, the parties "did not,
however, (e)ncumber the Agency with time limits." Award at 5.
Accordingly, the Arbitrator found that the grievance was
arbitrable.

     On the merits, the Arbitrator determined that Article 12,
Section 1 was not applicable to the grievance. Therefore, the
Arbitrator found that the Union did not violate the collective
bargaining agreement.

III. Union's Exceptions

     The Union excepts only to that portion of the Arbitrator's
award which found that the Agency is not bound by the time limits
set forth in the parties' negotiated grievance procedure. The
Union asserts that although it "does not contest the finding that
time limits for initiating a grievance do not apply to Union -
Management grievances, the award could be read to allow
management to avoid time limits prescribed in the Arbitration
article of the Master Agreement for the various arbitration
procedures." Exceptions at 1 (emphasis in original). 

     The Union contends that the award is deficient because it
violates section 7121(a)(1) of the Statute. The Union states that
section 7121 establishes procedures and principles "requiring
that the parties negotiate a mutually acceptable procedure for
the settlement of disputes." Exceptions at 4. According to the
Union, the award "would place the Union in a hardship in regards
(sic) to the processing of future grievances and arbitrations"
because it binds the Union, but not the Agency, to the time
limits contained in the parties' agreement. Exceptions at 4.

     The Union also contends that the award is deficient because
it: (1) is based on gross error but for which a different result
would have been reached; and (2) does not draw its essence from
the parties' agreement. The Union asserts that the Arbitrator
ignored the time limits specified in the agreement. The Union
argues that it "would not negotiate a procedure that would be the
'sole and exclusive' method by which complaints could be heard
and resolved, and place restrictions on itself in regards (sic)
to processing under that procedure." Exceptions at 4.

IV. Discussion

     The Union has failed to establish that the Arbitrator's
award is deficient on any of the grounds set forth in section
7122(a) of the Statute; that is, 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