41:0018(2)CO - - AFGE Local 1909, Fort Jackson, SC and Army and Air Force Exchange Service, Dallas, TX - - 1991 FLRAdec CO - - v41 p18

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[ v41 p18 ]
The decision of the Authority follows:

41 FLRA No. 2





LOCAL 1909






(Charging Party)



June 4, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The Judge found that the Respondent, American Federation of Government Employees, AFL-CIO, Local 1909, had not violated section 7116(b)(5) of Federal Service Labor-Management Relations Statute (the Statute), and recommended that the complaint be dismissed. He based his recommendation on the finding that in the particular circumstances of this case, the Respondent's failure to pay its share of an arbitrator's fee was not a repudiation of the parties' collective bargaining agreement. The Charging Party filed exceptions to the Judge's decision, and the Respondent filed an opposition to the exceptions. The General Counsel did not except to the Judge's decision.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order.

II. Charging Party's Exceptions

The Charging Party excepts to the Judge's conclusion that the failure of the Respondent to pay its share of the arbitrator's fee was not a repudiation of the collective bargaining agreement. It also raises, for the first time, the argument that the American Federation of Government Employees, AFL-CIO (AFGE), the exclusive representative of a worldwide consolidated unit of the Charging Party's employees, is responsible for the obligation incurred by the Respondent, AFGE Local 1909, which, according to the Charging Party, has no existence independent of AFGE. Based on this argument, the Charging Party requests that the case be remanded to the Judge for a determination of whether AFGE was able to pay the arbitrator's fee at issue herein.

We adopt the Judge's conclusion that in the circumstances of this case, the Respondent's failure to pay its share of the arbitrator's fee was not a repudiation of the agreement, and therefore was not a refusal to bargain in violation of section 7116(b)(5) of the Statute. We agree with the Judge's conclusion that "there is no evidence that [Local 1909] has rejected [its obligation to pay its share under the collective bargaining agreement] and intends not to pay. Rather the record evidence establishes that the failure to pay the arbitrator was due to lack of funds." Judge's Decision at 7.

It is uncontroverted that the Respondent, which had a bank balance of $42.32, had secured a promise from the grievant in advance of the proceeding to pay the costs; as a result of the failure by this grievant to honor that commitment, the Respondent now obtains payment for anticipated costs in advance of arbitration proceedings from affected employees. Further demonstrating that the Respondent did not repudiate the collective bargaining agreement, it attempted to make partial payment and to work out a payment schedule, offers that were refused by the Charging Party on behalf of the arbitrator.

We conclude that this case is different from Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA No. 106 (1991), in which an activity's refusal to assign a union's designated negotiator to the dayshift, admittedly a breach of the parties' ground rules agreement, was found to be tantamount to a repudiation of that agreement. In the cir