49:1256(118)AR - - AFGE, Local 3723 and Navy Exchange Service Center - - 1994 FLRAdec AR - - v49 p1256
[ v49 p1256 ]
The decision of the Authority follows:
49 FLRA No. 118
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVY EXCHANGE SERVICE CENTER
June 10, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator David B. Hart 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 did not file an opposition to the Union's exceptions.
An employee filed a grievance alleging that the Agency improperly failed to select her for a vacant position. The Arbitrator denied the grievance on the ground that it was not arbitrable. For the following reasons, we conclude that the award is contrary to section 7105(a)(2)(A) of the Statute and must be set aside.
II. Background and Arbitrator's Award
The grievant applied for an Assistant Buyer vacancy and was not selected. The grievant filed a grievance challenging her nonselection. The grievance was unresolved and was submitted to arbitration on the following stipulated issue:
Were appropriate scores given to candidates for promotion based on knowledge, skills, abilities (KSA's), awards, education, training, and performance evaluations? If not, what is the remedy?
Award at 1.
Before the Arbitrator, the Union asserted that the grievance was arbitrable. With respect to the merits of the grievance, the Union contended that the Agency did not rate the grievant objectively and preselected another employee for the Assistant Buyer position. The Agency contended before the Arbitrator that the Assistant Buyer position was an entry-level management position and, therefore, was not subject to the parties' negotiated grievance procedure. The Agency also asserted that the rating process was done fairly and that the individual selected for the position "was the better candidate." Id. at 2.
The Arbitrator found that the Assistant Buyer position "was not a vacant [b]argaining [u]nit position" and was "clearly outside of the [b]argaining [u]nit[.]" Id. at 4 (emphasis in original). In this regard, the Arbitrator stated that management positions such as the Assistant Buyer position were excluded from the coverage of the parties' collective agreement "through the recognition and promotion articles."(*)
Id. The Arbitrator also stated that he "cannot order management to put someone they do not want into a management position," unless the parties "expressly" gave him permission through their agreement. Id. The Arbitrator found that the parties' agreement did not grant him that permission. Consequently, the Arbitrator concluded that the grievant's nonselection was not covered under the parties' negotiated grievance procedure. Accordingly, he denied the grievance.
The Union claims that the basis of the Arbitrator's award is his conclusion that the Assistant Buyer position is not a bargaining unit position. The Union contends that the Assistant Buyer position is included in the unit. The Union asserts that no evidence was presented before the Arbitrator to establish that the Assistant Buyer position was excluded from the bargaining unit. In this regard, the Union notes that Article 1 of the parties' agreement excludes Buyers, but not Assistant Buyers, from the bargaining unit. The Union asserts that the Agency merely assumed that the Assistant Buyer position was not in the unit and the Arbitrator found that assumption to be sufficient.
The Union also contends that the Arbitrator failed to address the issue that was stipulated by the parties. The Union states that "[n]ormally, an [a]rbitrator will decide only those issues raised in the grievance process." Exceptions at 1. The Union also states that the parties' agreement requires that questions of arbitrability be raised by step 2 of the grievance procedure and referred to arbitration as a threshold issue. The Union claims that the question of arbitrability was not raised during the grievance process or referred to the Arbitrator as a threshold matter prior to the consideration of the merits of the grievance as required under the parties' agreement. Rather, the Union claims that the issue was raised by the Agency in its closing statements to the Arbitrator and that, therefore, the Union was not able to address the issue of arbitrability.
IV. Analysis and Conclusions
We conclude that the Arbitrator's award is contrary to the Statute and must be set aside. In this case, the issue before the Arbitrator concerned whether the Agency improperly failed to select the grievant for the Assistant Buyer position. Before addressing that issue, the Arbitrator considered the threshold question in dispute between the parties as to whether the Assistant Buyer position was in the bargaining unit. In resolving that threshold question, the Arbitrator made a determination concerning the unit status of the disputed position.
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 . . . ." The Authority's jurisdiction under this provision is exclusive. Consequently, an arbitrator is not empowered to resolve a unit status question even if that question is raised as a collateral issue in a grievance otherwise properly brought under the collective bargaining agreement. See, for example, American Federation of Government Employees, Local 933 and Veterans Administration Medical Center, Allen Park, Michigan, 34 FLRA 645, 648 (1990) (citing U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 852, 854 (1988) (SBA)). Factual disputes concerning the bargaining unit status of employees, or as in this case a disputed position, must be resolved by filing a clarification-of-unit petition with the Authority under section 2422.2(c) of our Rules and Regulations. See, for example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 941-42 (1991); SBA, 32 FLRA at 854.
Before the Arbitrator, the parties disputed whether the Assistant Buyer position was in the bargaining unit. The Arbitrator found that the grievant was precluded from grieving her nonselection for that position because the position was "clearly outside of the [b]argaining [u]nit[.]" Award at 4 (emphasis deleted). We find that, in determining that the Assistant Buyer position was outside of the bargaining unit, the Arbitrator resolved an issue as to the unit status of the disputed position, a matter which is within the exclusive jurisdiction of the Authority under section 7105(a)(2)(A) of the Statute. Accordingly, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute because it contrary to section 7105(a)(2)(A).
Because we find that the Arbitrator's award is deficient as contrary to law, we conclude that the award must be set aside in its entirety. In view of our conclusion that the award must be set aside, we find it unnecessary to address the Union's remaining contentions in this case.
The Arbitrator's award is set aside.
Article I, Sections 1 and 2 of the parties' agreement provides in relevant part:
Section 1. The Employer recognizes the Union as the exclusive representative of all employees in the Unit as defined in Section 2 below:
Section 2. The Unit is defined as all employees of the Navy Exchange Service Center, San Diego, California except supervisors, management officials, buyers, guards, temporary employees with less than 90 days service, and employees engaged in Federal personnel work in other than a purely clerical capacity.
Article 30, Section 1 provides in relevant part:
The Employer agrees to administer a promotion program designed to ensure a systematic means of selection of the best qualified employees for filling vacant bargaining unit positions.
Article 36, Section 5 provides in relevant part:
Questions of Grievability--In the event either party should declare a grievance nongrievable or nonarbitrable, the original grievance shall be considered amended to include this issue. The Employer agrees to raise any question of grievability or arbitrability of a grievance in the written answer in Step 2 of this procedure. All disputes of grievability or arbitrability shall be referred to arbitration as a threshold issue in the related grievance.
Article 37 provides in relevant part:
Section 5. If the question of grievability or arbitrability has been raised by either party, and the question has not been resolved, the arbitrator will be requested to rule on that question as a threshold issue prior to considering the merits of the case.
Section 6. The arbitrator will be requested by the parties to render his decision as quickly as possible but in any event no later than thirty (30) calendar days after the conclusion of the hearings, unless the parties agree otherwise. The arbitrator may neither interpret nor change the Department of the Navy or higher authority regulations or policy. An arbitrato