49:1492(132)AR - - DOD, Defense Communications Agency, Defense Commercial Communications Office, Scott AFB, IL and NAGE, Local R7-23 - - 1994 FLRAdec AR - - v49 p1492



[ v49 p1492 ]
49:1492(132)AR
The decision of the Authority follows:


49 FLRA No. 132

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMUNICATIONS AGENCY

DEFENSE COMMERCIAL COMMUNICATIONS OFFICE

SCOTT AIR FORCE BASE, ILLINOIS

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23

(Union)

0-AR-2574

_____

DECISION

June 30, 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 Josef Rohlik 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.

The Arbitrator found that the Agency's grievance, as amended, was arbitrable. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On March 30, 1993,(*) the Agency filed a grievance and contended that the Union was violating the parties' collective bargaining agreement by refusing to negotiate with the Agency. The grievance was signed by Colonel Warren L. Harris, as Principal Deputy Director of Defense Commercial Communications Office (DECCO). On April 2, DECCO filed an unfair labor practice charge against the Union alleging a refusal to bargain in violation of section 7116(b)(5) of the Statute. The charge was subsequently withdrawn by DECCO because it had failed to comply with the pre-charge procedures of the parties' collective bargaining agreement. On April 13, DECCO filed an amended grievance. On April 30, the Union rejected the grievance as procedurally deficient. The Union noted that the collective bargaining agreement required that grievances against the Union must be filed by the DECCO Commander and claimed that the Commander was the DECCO Director, not the Principal Deputy Director.

On May 17, DECCO filed another unfair labor practice charge alleging a violation of section 7116(b)(5) by the Union in its refusal to bargain. On July 26, the Authority's Regional Director refused to issue a complaint. He found that the charge was barred under section 7116(d) of the Statute by the earlier-filed grievances.

The grievance, as amended, was not resolved and was submitted to arbitration on the following issues: (1) whether the original grievance was properly submitted and properly signed by Colonel Harris under the collective bargaining agreement; (2) whether the amended grievance was properly signed by Colonel Harris and properly submitted in view of the unfair labor practice charge that preceded it; (3) whether the grievance, as amended, was timely filed; and (4) whether the grievance, as amended, was arbitrable notwithstanding that there had been no meeting between the Union's President and the DECCO Director.

The Arbitrator stated that under the parties' collective bargaining agreement, Agency grievances must be submitted by the "DECCO Commander." He found that prior to the reorganization of DECCO in 1988, it was clear that any Agency grievance had to be submitted by DECCO's top military officer at Scott Air Force Base. However, he further found that since the 1988 reorganization, there is no "DECCO Commander" and that, therefore, the term is ambiguous. He noted that prior to the reorganization, the DECCO Commander was a colonel at Scott Air Force Base, whose duties included all employee and labor relations with the bargaining unit. He acknowledged that in 1988 a civilian employee became the Director of the Defense Commercial Communications Office with duties exceeding those of the previous DECCO Commander. The Arbitrator found that there was no evidence that the DECCO Director engaged in any negotiations with the Union or that he exercised any authority in contract administration or employee matters at Scott Air Force Base. Instead, the Arbitrator found that, at the time of the grievance, the top DECCO officer at Scott Air Force Base involved in labor relations was DECCO's Principal Deputy Director, Colonel Harris. Consequently, the Arbitrator concluded that Colonel Harris was the successor to the "DECCO Commander" under the agreement, as far as the grievance before him was concerned. Accordingly, the Arbitrator ruled that the original grievance and the amended grievance were properly submitted and signed by Colonel Harris. He also ruled that the amended grievance was arbitrable even though there had been no grievance meeting because the required meeting had not taken place only because the Union objected to meeting without the DECCO Director present as the "DECCO Commander."

In addition, the Arbitrator ruled that the amended grievance was timely and was not barred by an unfair labor practice charge. The Arbitrator agreed with the Agency that the original grievance was timely filed and that, both for timeliness purposes and for purposes of section 7116(d), the filing date of the amended grievance should relate back to the filing date of the original grievance. Specifically, the Arbitrator ruled that the original grievance was timely under the agreement and that because the amendment was "nothing more than an elaboration" of the original grievance, the amended grievance was also timely under the agreement. Award at 31. Similarly, emphasizing that, for purposes of timing, the amended grievance was merely an elaboration of the original grievance, the Arbitrator ruled that the amended grievance predated the unfair labor practice charges and was not barred by section 7116(d) of the Statute.

For all these reasons, the Arbitrator determined that the grievance, as amended, was arbitrable.

III. Exceptions

The Union contends that the Arbitrator failed to properly consider the evidence and based his award on nonfacts. The Union also contends that the award is contrary to section 7116(d) of the Statute.

The Union argues that the Arbitrator did not give proper weight to the Union's arguments and evidence that proved that the DECCO Director was the same as the DECCO Commander. The Union asserts that the terms "Director" and "Commander" are synonymous. The Union claims that by ruling otherwise the award is based on nonfacts.

The Union argues that the amended grievance filed on April 13 was barred by the unfair labor practice charge filed on April 2. The Union maintains that the amended grievance was "more than just a rephrasing of the initial grievance." Exceptions at 2. The Union claims that, in any event, the Agency will rely on the amended grievance in a subsequent arbitration hearing and that, therefore, under section 7116(d) of the Statute, the amended grievance should be barred by the earlier-filed unfair labor practice charge.

IV. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the award deficient.

The Arbitrator ruled on the issue of which position is the successor to the "DECCO Commander" for purposes of submitting and signing Agency grievances and holding grievance meetings. This ruling constitutes his determination on the procedural arbitrability issue of whether the Agency complied with the procedural requirements of the parties' collective bargaining agreement in the submission and processing of grievances. The Authority has consistently held that procedural arbitrabilty determinations by arbitrators are generally not subject to challenge and that exceptions that constitute nothing more than disagreement with the arbitrator's determination on such issues provide no basis for finding the arbitrator's ruling deficient under the Statute. For example, U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 49 FLRA 982, 989 (1994) (AAFES). The Authority has explained that the denial of exceptions that merely disagree with an arbitrator's determination on the procedural arbitrability of a grievance is fully consistent with the decisions of the Federal courts reviewing arbitration awards in the private sector. For example, John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator."). In our view, the Union's arguments that the Arbitrator failed to properly consider the evidence and based his award on nonfacts constitute nothing more than disagreement with the Arbitrator's procedural arbitrability rulings and provide no basis for finding the award deficient. See AAFES, 49 FLRA at 990. Accordingly, we will deny this exception.

We also reject the Union's contention that the award is contrary to section 7116(d) by failing to find the amended grievance barred by the April 2 unfair labor practice charge. Section 7116(d) effectively provides that when, in the discretion of the aggrieved party, an issue has been raised under the unfair labor practice procedures, the issue cannot subsequently be raised as a grievance, and an arbitrator is precluded from rendering a decision on the merits. An issue is "raised" within the meaning of section 7116(d) at the time of the filing of a grievance or an unfair labor practice charge even if the grievance or charge is not adjudicated on the merits. For example, U.S. Department of the Interior, Bureau of Indian Affairs, Chemawa Indian Boarding School and National Federation of Federal Employees, Local 241, 39 FLRA 1322, 1324 (1991).

It is clear from the record that the Agency filed the original grievance on March 30, the initial unfair labor practice charge on April 2, and the amended grievance on April 13. The dispositive question is what constitutes the filing date of the amended grievance for purposes of invoking the section 7116(d) bar. The Arbitrator determined under the parties' collective bargaining agreement that, both for timeliness purposes and for purposes of section 7116(d), the filing date of the amended grievance should relate back to the filing date of the original grievance because the amendment simply clarified the original grievance. In deference to the Arbitrator's procedural arbitrability determination under the collective bargaining agreement that the filing date of the amended grievance should relate back to the filing date of the original grievance, we will also apply that filing date determination in deciding whether the amended grievance is barred by an unfair labor practice charge under section 7116(d). We find that the amended grievance predated the unfair labor practice charges and was not barred by section 7116(d) of the Statute. Accordingly, we will deny the Union's exception.

V. Decision

The Union's exceptions are denied.




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