40:0421(40)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1991 FLRAdec AR - - v40 p421
[ v40 p421 ]
The decision of the Authority follows:
40 FLRA No. 40
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 Gerald Cohen. A grievance was filed challenging the Agency's denial of a cash award to the grievant. The Arbitrator concluded that the grievance was not arbitrable.
The Union filed exceptions 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 did not file an opposition to the Union's exceptions.
For the following reasons, we conclude that the case should be remanded to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
Prior to this grievance, the parties settled another grievance which alleged that the grievant received an improper performance rating for the period ending June 30, 1989. The settlement agreement raised the grievant's performance rating to excellent.
When the grievant failed to receive a cash award for his rating, he filed another grievance. The grievant claimed that he was entitled to an award because the 29 other employees in his section, who were in the same job classification as the grievant and who were rated excellent or better, all received cash awards. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues as follows:
1. Is the grievance arbitrable?
2. If so, did the Grievant receive fair and equitable consideration for a monetary award in comparison with other employees?
Award at 1.
The Arbitrator concluded that the grievance was not arbitrable "because AFR [Air Force Regulation] 40-452(f) . . . provides that the 'nonreceipt of a cash award, . . . may not be . . . grieved . . . under negotiated grievance and arbitration procedures." Id. at 7 (emphasis in original). The Arbitrator rejected the Union's argument that the Agency violated Article XXI, Section 13 of the parties' collective bargaining agreement by raising the question of arbitrability for the first time after the second step of the grievance. The Arbitrator determined that the question of arbitrability did not constitute a new issue and that it may be raised at any time. Accordingly, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law and is based on a nonfact. In support, the Union asserts that under the Supreme Court's decision in United Steel Workers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582 (1960), an arbitrator should resolve doubts about arbitrability in favor of arbitration. The Union also contends that "the CBA [collective bargaining agreement] and the law is the determinant of what is or is not arbitrable." Exceptions at 1. Noting that the parties' agreement includes a "broad scope grievance procedure," the Union asserts that "there are few exceptions to what can be grieved" and that "any matter which is not expressly excluded from the grievance procedure . . . can be grieved." Id.
The Union also contends that the award is based on a "non-fact" because the grievance does not concern "the actual receipt of an award[.]" Id. at 2. The Union argues that the grievance was clearly over "the consideration and fairness and equitability of the nonreceipt of an award, not the nonreceipt in and of itself." Id.
IV. Analysis and Conclusions
Under the Statute, collective bargaining agreements, rather than agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the agency rule or regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990) (Fort Campbell).
In reaching his decision that the grievance was not arbitrable, the Arbitrator relied on Agency regulation AFR 40-452(f) without referencing or discussing the section of the parties' collective bargaining agreement defining a grievance. In this regard, we note that the agreement defines a grievance as "a request by any employee or group of employees acting as individuals, the union, or the employer for appropriate relief in a matter of concern or dissatisfaction which is subject to the control of the union or the employer." Labor-Management Agreement between Local R7-23, National Association of Government Employees and Scott Air Force Base, Illinois and Defense Commercial Communications Office, As Amended, Attachment to Union's Exceptions. Those matters specifically excluded from the scope of the grievance procedure do not include grievances concerning consideration for or receipt of a cash award.
In this case, the record is insufficient for us to determine whether, consistent with Fort Campbell, the award is deficient. The Arbitrator stated only that "arbitrability must be ruled against the Union because AFR 40-452(f)" does not permit grieving the nonreceipt of a cash award under several procedures including the negotiated grievance procedures. Award a