37:0071(3)AR - - DOD, Army and Air Force Exchange Service, Dallas, TX and AFGE - - 1990 FLRAdec AR - - v37 p71



[ v37 p71 ]
37:0071(3)AR
The decision of the Authority follows:


37 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-1680

DECISION

September 7, 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 Robert M. Tedlock filed by 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator was asked to decide whether intermittent employees were covered by the parties' master collective bargaining agreement for purposes of discipline and reduction-in-force. The Arbitrator found that the Union failed to show that intermittent employees were covered by the agreement and denied the Union's grievance.

We conclude that the Arbitrator's award is deficient because it is contrary to section 7105(a)(2)(A) of the Statute and, therefore, is contrary to law. The Arbitrator failed to comply with a clarification-of-unit decision issued by the Authority's Regional Director which stated that intermittent employees are included in the worldwide consolidated bargaining unit. By its terms, the master agreement applies to the worldwide consolidated bargaining unit. Accordingly, the Arbitrator's award is modified to hold that intermittent employees, because they are included in the bargaining unit, are covered by the collective bargaining agreement.

II. Background

On November 13, 1981, the various individual bargaining units at the Agency were consolidated into a worldwide bargaining unit represented by the Union. See Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA 657 (1981). In 1985, the parties filed a clarification-of-unit petition with the Authority to resolve "the question of inclusion or exclusion of employees in the intermittent category in the consolidated bargaining unit." Award at 3. The master collective bargaining agreement covering the worldwide consolidated bargaining unit became effective on April 22, 1987.

On April 30, 1987, the Regional Director of the Authority's Region VI issued a decision regarding the clarification-of-unit petition filed by the parties in 1985. The clarification-of-unit decision ordered as follows:

IT IS HEREBY ORDERED that the unit established in Case No. 6-UC-1 [5 FLRA 657], which created a worldwide consolidated unit, is clarified by the substitution of the following uniform unit description.

INCLUDED: All regular full-time and regular part-time employees, intermittent regularly scheduled, intermittent on call and intermittent casual employees . . . .

On December 22, 1987, Local 2921 of the Union filed a grievance in which it claimed that intermittent employees were denied rights and protections under the provisions of the master collective bargaining agreement concerning disciplinary action and reduction-in-force. The Agency denied the grievance and contended that intermittent employees were not covered by the master agreement.

III. Arbitrator's Award

In the absence of a stipulated issue, the Arbitrator adopted the following statement of issue suggested by the Agency: "Does the Master Agreement cover the intermittent category of employees?" Award at 2. The Arbitrator stated that the Authority has jurisdiction over determining bargaining units but that "findings concerning the relationship between the parties as reflected in the Master Agreement are the Arbitrator's business." Id.

The Arbitrator noted that subsequent to the consolidation of bargaining units, the use of intermittent employees was changed by the Agency in order to increase the hours in which they were employed and that it was only after that change that the Union began to insist that "intermittents" were included in the consolidated unit. Award at 3. The Arbitrator stated that "[t]he preponderance of the evidence is persuasive that [the Union] accepted that, prior to the change in utilization, intermittents could be considered excluded from the bargaining unit." Id. He also stated that "[t]he evidence is equally persuasive that after the change, in September, 1986, [the Union] strongly and consistently represented that intermittents must be included in the bargaining unit." Id.

The Arbitrator stated that he was "not convinced that the Certification of Consolidation of Units issued 11-13-81 included intermittents." Award at 3. He added that he had no standing to interpret the certification. However, the Arbitrator concluded that the parties' conduct indicated that intermittent employees were not covered by the certification of consolidation. He noted the following factors to support his conclusion: (1) intermittents were not given the opportunity to vote in the representation election and were not given union dues check-off; (2) only one grievance had been filed on behalf of intermittent employees; (3) there was only scant and inconclusive evidence that intermittents had been included in the negotiation of reduction-in-force matters at one location within the Agency; and (4) if the Authority had intended to include intermittents in the 1981 consolidation of units, "it would not have permitted its docket to be burdened with the issue for some two years during 1985 and 1986." Id. at 4. He stated that "there was no meeting of minds on the subject and it cannot be found that intermittents were 'bargained' into the unit[.]" Id.

The Arbitrator declined to rule on whether the clarification-of-unit decision dated April 30, 1987, placed intermittent employees within the coverage of the master agreement. He stated that any question in that regard must be addressed to the Authority. The Arbitrator also rejected the Union's argument that intermittents were brought within the coverage of the agreement under "Parties to the Agreement, Section 2," which provides: "This Master Agreement shall apply to the Worldwide Consolidated Bargaining Unit (hereinafter the 'Unit') described by 5 FLRA [No.] 90, certified the 13th day of November 1981, and to any unit accreted thereto by certification of the FLRA." Master Agreement at 1, submitted as Attachment 1 to Exceptions. The Arbitrator agreed with the Agency that that provision of the agreement applies only to units "created by certification of a bargaining unit and not a class of employees placed in a unit by certification of clarification." Award at 5.

The Arbitrator denied the grievance.

IV. Positions of the Parties

A. Union's Exceptions

The Union asserts that the Arbitrator erred by failing to rule that the clarification-of-unit decision issued by the Regional Director of Region VI extended coverage of the master agreement to intermittent employees. The Union cites U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), motion for reconsideration granted sub nom. U.S. Small Business Administration and American Federation of Government Employees, Local 2532 and Council 228, 36 FLRA 155 (1990). In SBA, the Authority held 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. The Union contends that under SBA, only the Authority--not the Arbitrator--can determine whether the intermittent employees at issue in this case are included in the bargaining unit and are covered by the master agreement.

The Union maintains that "[a]s a matter of law a unit clarification order issued after the parties have negotiated a comprehensive collective bargaining agreement extends the coverage of the agreement to the employees who have been newly clarified into the unit, unless the parties have made an explicit agreement to exclude those employees from their contract." Exceptions at 5. The Union states that "there was never any explicit agreement . . . to exclude intermittents" and, therefore, intermittents "were automatically covered by the Master Agreement after the FLRA issued its unit clarification order." Id. at 6.

The Union further asserts that the Agency's actions in refusing to recognize that intermittent employees are covered by the master agreement constitute a violation of section 7116(a)(5) and (8) of the Statute because the Agency failed to comply with the collective bargaining agreement and because the Agency failed to comply with the Regional Director's order. Therefore, the Union maintains, the grievance concerns a statutory question and not a matter of contract interpretation by the Arbitrator.

B. Agency's Opposition

The Agency contends that the Arbitrator addressed the issue which he framed in the absence of a stipulation by the parties and that his award concerns only interpretation of the master agreement. The Agency asserts that the Union's exceptions "constitute nothing more than a disagreement with the arbitrator's selection of the issue . . . and disagreement with the arbitrator's interpretation and application of the collective bargaining agreement[.]" Opposition at 6.

The Agency also contends that the Union's allegation that the Agency violated section 7116(a)(5) and (8) of the Statute provides no basis for finding the award deficient. The Agency maintains that the Union elected under section 7116(d) of the Statute to file a grievance instead of an unfair labor practice charge.

V. Analysis and Conclusions

We conclude that the Arbitrator's award is deficient because it is contrary to law. Specifically, the award is contrary to section 7105(a)(2)(A) of the Statute because the Arbitrator made a determination affecting the bargaining unit status of intermittent employees that was contrary to the final clarification of unit decision made by the Authority's Regional Director. Accordingly, the award must be modified to find that intermittent employees, who are members of the certified bargaining unit, are covered by the parties' master collective bargaining agreement.

Section 7105(a)(2)(A) of the Statute provides that the Authority shall "determine the appropriateness of units for labor organization representation under section 7112[.]" Section 7112(a)(1) provides that "[t]he Authority shall determine the appropriateness of any unit." The Authority has held that factual disputes concerning the bargaining unit status of employees must be resolved by filing a clarification-of-unit petition with the Authority under section 2422.2(c) of our Rules and Regulations. SBA, 32 FLRA at 853; see also Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 21, 24 (1990) (arbitrator correctly continued arbitration until Authority could act on unit clarification petition to resolve grievant's bargaining unit status), application for review denied on other grounds, 36 FLRA 237 (1990); U.S. Department of the Treasury, United States Mint, 32 FLRA 508, 510 (1988) (a clarification-of-unit petition is the appropriate vehicle for resolving the bargaining unit status of temporary employees).

The Authority ruled in SBA 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, 32 FLRA at 852. In making that ruling, the Authority stated that it would no longer follow its previous holding in National Archives and Records Service, General Services Administration and Local 2578, American Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982) (NARS), which permitted an arbitrator to resolve a collateral issue concerning the bargaining unit status of a grievant in the course of deciding a grievance otherwise properly brought under the collective bargaining agreement. SBA, 32 FLRA at 853.

In NARS, the Authority also stated that any determination of a collateral bargaining unit status issue by an arbitrator "must be consistent with the Statute and relevant decisions of the Authority." NARS, 9 FLRA at 383. The requirement that arbitration awards involving the unit status of a grievant must be consistent with the Statute and with Authority decisions was not changed by the Authority when it ruled in SBA that arbitrators could no longer make appropriate unit determinations in grievance arbitration awards. To the contrary, all appropriate unit determinations made by the Authority pursuant to its exclusive jurisdiction under section 7105(a)(2)(A) must be followed by the parties and by arbitrators. If a grievability question arises regarding the bargaining unit status of the grievant, the parties can place the grievance in abeyance pending the filing of a clarification-of-unit petition with the Authority. U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, Los Angeles Joint Council, 34 FLRA 1161, 1165 (1990); SBA, 32 FLRA at 854.

The issue before the Arbitrator in the instant case was whether intermittent employees are covered under the parties' collective bargaining agreement. The agreement provides, in "Parties to the Agreement, Section 2," as follows: "This Master Agreement shall apply to the Worldwide Consolidated Bargaining Unit (hereinafter 'the Unit') described by 5 FLRA [No.] 90, certified the 13th day of November 1981, and to any unit accreted thereto by certification of the FLRA." Master Agreement at 1, submitted as Attachment 1 to Exceptions. In order for the Arbitrator to decide whether the agreement applies to intermittent employees, therefore, it was necessary for him to know whether intermittent employees are included in "the Worldwide Consolidated Bargaining Unit" described in 5 FLRA 90 or in "any unit accreted thereto by certification of the FLRA." Id.

As stated above, the Authority has exclusive jurisdiction to determine the scope of an appropriate unit. That authority has been delegated to the Authority's Regional Directors, subject to review on appeal to the Authority. See Part 2422 of the Authority's Rules and Regulations. A decision of the Authority on an application for review of a Regional Director's decision as to an appropriate unit question is final and binding on the parties. If no application for review is filed with the Authority, the decision of the Regional Director constitutes the final decision of the Authority. Id. Where the Authority has determined the unit status of a group of employees, an arbitrator who is confronted by a question which involves the unit status of those employees is bound by the Authority's determination.

At the time the Arbitrator made his award, the Regional Director had issued a clarification-of-unit decision ordering "that the unit established in Case No. 6-UC-1 [5 FLRA 657], which created a worldwide consolidated unit, is clarified by the substitution of the following uniform unit description [which includes intermittent employees]." Clarification of Unit at 2, submitted as Attachment 2 to Exceptions. The effect of the Regional Director's clarification-of-unit decision is that the bargaining unit established originally in 5 FLRA 657--the worldwide consolidated bargaining unit--includes intermittent employees.

The Arbitrator's award depended on the description of the worldwide consolidated bargaining unit and the Arbitrator was required to apply the unit description as clarified by the Regional Director. Because the collective bargaining agreement covers the worldwide consolidated bargaining unit described in 5 FLRA 657 and because the worldwide consolidated bargaining unit clarified by the Regional Director's decision includes intermittent employees, the Arbitrator was required to find that intermittent employees are covered by the agreement. However, the Arbitrator's award fails to conform to the clarified unit description and, as a result, the award effectively excludes intermittent employees from the bargaining unit. Consequently, the award is contrary to section 7105(a)(2)(A) of the Statute. See U.S. Army Transportation Center, Fort Eustis, Virginia and National