34:0645(110)AR - - AFGE Local 933 and VA Medical Center, Allen Park, MI - - 1990 FLRAdec AR - - v34 p645



[ v34 p645 ]
34:0645(110)AR
The decision of the Authority follows:


34 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

and

VETERANS ADMINISTRATION MEDICAL CENTER

ALLEN PARK, MICHIGAN

0-AR-1622

DECISION

January 29, 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 Peter D. Jason filed by American Federation of Government Employees, Local 933 (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 Veterans Administration (the Agency) did not file an opposition to the Union's exception.

The Arbitrator ruled that temporary employees at the Veterans Administration Medical Center, Allen Park, Michigan (the Activity) were not included in the bargaining unit and, therefore, were not covered by the collective bargaining agreement. For the following reasons, we conclude that the Arbitrator's award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and must be set aside.

II. Background and Arbitrator's Award

The grievance arose when the Activity terminated some temporary employees from their positions. The Union filed a grievance which alleged that the grievants were not given 2 weeks' notice and were not advised of the reason for their terminations as required by the collective bargaining agreement. The matter was submitted to arbitration.

The Arbitrator framed the issue as follows:

Are the temporary employees of the Veterans Administration Medical Center, Allen Park, included in the bargaining unit so that the collective bargaining agreement applies?

Arbitrator's Award at 4.

The Arbitrator noted that by letter dated August 8, 1966, the Director of the Activity granted exclusive recognition to the Union and defined the unit as follows:

2. This unit will include Classified (GS) and Wage Administration (WA) employees, and employees of the Veterans Canteen Service, but will exclude the following personnel of this hospital.

. . . . . . .

e. Temporary and intermittent employees[.]

Arbitrator's Award at 3.

The Arbitrator stated that in 1983 the Authority certified the American Federation of Government Employees as the exclusive representative of consolidated units in the Agency and defined the unit at the Activity as follows:

All non-professional employees at the Veterans Administration Hospital, Allen Park, Michigan, excluding all professional employees, supervisors, management officials, and personnel engaged in Federal personnel work in other than a purely professional capacity.

Arbitrator's Award at 4, citing Certification of Consolidation of Units, Case No. 3-UC-20001, November 2, 1983.

The Arbitrator noted that a collective bargaining agreement negotiated in November 1966 was not introduced into evidence at the hearing and he found no mention of temporary employees in any agreement entered into since the original certification in 1966. He stated that "confusion exists as to whether temporary employees are included in the bargaining unit[,]" and that "this jurisdictional question should not be decided by an arbitrator. . . . The appropriateness of including temporary employees within the bargaining unit is a matter that should be decided by the Federal Labor Relations Authority." Arbitrator's Award at 5.

The Arbitrator concluded that as far as he could "tell from the evidence submitted, the original intent of the parties was to exclude temporary employees from the bargaining unit. Since there is no clear evidence that convinces me that proper procedures were followed to later include those employees, I find that the Union is not authorized to represent them." Arbitrator's Award at 5-6. He therefore denied the grievance.

III. Union's Exceptions

The Union contends that the Arbitrator's award is deficient because it is contrary to law, regulation, and the collective bargaining agreement. The Union asserts that the Arbitrator improperly defined the bargaining unit contrary to section 7112 of the Statute, which provides that the Authority shall determine the appropriateness of any unit.

The Union refers to FLRA Certification of Consolidation of Units, 3-UC-20001, and to the parties' collective bargaining agreements negotiated in 1974, 1977, and 1982. The Union contends that the certification "specifically named the employees [who were] excluded [and] [t]emporary employees were not specifically named to be excluded from the bargaining unit by the . . . FLRA certification." Union's Exceptions at 6-7.

The Union contends that it "did not request the Arbitrator to define the bargaining unit, but to specifically interpret the FLRA certification that is confirmed in the three negotiated agreements. The Union's contention is that the bargaining unit has already been defined by FLRA and the collective bargaining agreements." Union's Exceptions at 6.

IV. Discussion

We conclude that the Arbitrator has improperly decided a question concerning the bargaining unit status of employees. Therefore, the award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and must be set aside.

In U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), the authority of arbitrators to resolve questions concerning the bargaining unit status of grievants was discussed. In that case, the Authority concluded that an arbitrator is not empowered to decide a question of a grievant's bargaining unit status even if that question is raised as a collateral issue in a grievance otherwise properly brought under the collective bargaining agreement. SBA at 852.

Factual disputes as to whether employees are included in a bargaining unit are resolved by filing a clarification of unit (CU) petition with the Authority under section 2422.2(c) of our Rules and Regulations. Id. at 853; see also U.S. Department of the Treasury, United States Mint, 32 FLRA 508, 510 (1988) (a CU petition is the appropriate vehicle for resolving the bargaining unit status of temporary employees). As the Authority stated in SBA:

[A]n arbitrator does not have authority to make appropriate unit determinations. As a consequence, an arbitrator is precluded from addressing the merits of a grievance whenever a grievability question has been raised regarding the bargaining unit status of the grievant. When parties to a grievance are faced with such a grievability question, they can place the grievance in abeyance pending the filing of a clarification of unit petition.

In certain circumstances, an agency's allegation that a grievant is not included in the bargaining unit will not raise a question of bargaining unit status. There is no unit status question when the Authority has already determined that the grievant or the grievant's position is in the unit and when, in making the determination, the Authority rejected the basis on which the agency contests the grievability of the grievant's grievance. In these circumstances, there would be no question concerning the bargaining unit status of such a grievant. Therefore, in these circumstances, an arbitrator would not be prohibited on such a basis from resolving the grievance.

SBA at 854.

In the instant case, the sole issue before the Arbitrator was whether the grievants, as temporary employees, were within the bargaining unit and entitled to coverage under the collective bargaining agreement. The Arbitrator ruled that temporary employees were excluded from the bargaining unit and denied the grievance. Under sections 7105(a)(2)(A) and 7112(a)(1) of the Statute, only the Authority is empowered to make appropriate unit determinations. Consequently, the Arbitrator's award, which constitutes a unit determination, is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute.

We reject the Union's argument that the Authority's 1983 certification determined that temporary employees are in the unit. As found by the Arbitrator, that certification "do[es] not mention temporary employees." Arbitrator's Award at 4. The appropriate vehicle for resolving the bargaining unit status of the temporary employees involved in this case is a clarification of unit petition.

V. Decision

The Arbitrator's award is set aside. Should the Un