U.S. Department of Veterans Affairs and National Association of Government Employees, AFL-CIO, SEIU

[ v55 p781 ]

55 FLRA No. 132

U.S. DEPARTMENT OF VETERANS AFFAIRS
(Activity/Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, SEIU
(Labor Organization/Petitioner)

BN-RP-80051

_____

ORDER GRANTING APPLICATION FOR REVIEW

August 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.      Statement of the Case

      This case is before the Authority on the Union's application for review under section 2422.31 of the Authority's Regulations. [n1]  The Union seeks review of the Regional Director's (RD's) Decision and Order dismissing its petition for clarification of its nationwide bargaining unit. In particular, the Union requests clarification of the status of a vacant Housekeeping Aid Work Leader position, at the Agency's Connecticut Healthcare Systems facility. The Agency did not file an opposition to the Union's application.

      For the reasons discussed below, we grant the application for review in accordance with the Authority's regulations, on the ground that the RD's decision raises an issue for which there is an absence of Authority precedent. In this regard, we find that the Authority's precedent regarding unit determinations for vacant positions does not address the issue raised by the circumstances in this case. Specifically, this case raises the issue of whether an RD must resolve a representation issue concerning a vacant position where the unit determination is a collateral issue necessary to the resolution of a grievance at arbitration. We conclude that the RD shall determine the unit status of a vacant position when both parties agree or the arbitrator decides that the unit determination is necessary to the resolution of a grievance at arbitration. In such event, the grievance must be placed in abeyance pending a decision on a petition for clarification of the unit. To assure consistency with the procedures described below, we modify the RD's Decision and Order by dismissing the Union's petition for unit clarification without prejudice to the Union's right to refile the petition if the parties agree, or the Arbitrator subsequently decides, that the unit determination is necessary to the resolution of the grievance.

II.     Background

      The Union initially filed a petition on September 22, 1998 (that was later amended on December 11, 1998) seeking clarification of whether the position of the Housekeeping Aid Work Leader was included in the bargaining unit. The Union asserted in both the initial petition and amendment that the position was supervisory/managerial and should be excluded from the unit. The Activity did not dispute the managerial status of the work leader position when the Union's petition was filed. However, during the RD's investigation, the Activity changed its view and contended that the position was part of the bargaining unit.

      This unit clarification question arose after a bargaining unit employee received notice of a proposed suspension for being Absent Without Leave (AWOL) on two occasions and for failing to follow proper leave requesting procedures. The Notice also stated that the AWOL charges had been recommended to the employee's supervisor by the Housekeeping Aid Work Leader. Subsequently, the Union filed a grievance on the employee's behalf, alleging in pertinent part that the Activity "ha[d] repeatedly failed to ensure a reasonable procedure for the request and approval of leaves, through a supervisor as required by the contract." Grievance No. 1, August 26, 1998. After denying this grievance, the Activity suspended the employee for 3 days, from September 16-18, 1998.

      The Union filed a second grievance on the employee's behalf claiming that the suspension was not for cause in accordance with the terms of the collective bargaining agreement, and requested that the Activity "provide any formal delegation of supervisory leave approval authority." Grievance No. 2, September 25, 1998. The Activity had maintained that if employees could not reach the Housekeeping Supervisor to notify him of any absences, then employees had to call or page the work leader, the supervisor's designee, in accordance with the parties' contract. RD's Decision at 2. The Activity denied the second grievance, and the Union invoked arbitration in both grievances. [ v55 p782 ]

      On March 28, 1999, the work leader was promoted to a Supervisor Housekeeping Aid position. The Activity informed the RD that the work leader position at issue will remain vacant.

      On April 7, 1999, the RD issued an Order to Show Cause directing the Union to indicate why its petition should not be dismissed since the work leader position was now vacant. The Order noted that the Authority does not resolve or clarify the bargaining unit status of vacant positions in accordance with Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 (1981) (Bureau of the Mint). In its response to the Order to Show Cause, the Union stated that the clarification of the work leader position is "critical to a pending grievance . . . [and] failure to resolve the issue of unit status would strip a unit employee and the Union of the right to properly pursue grievance issues through the negotiated grievance procedure." Response to Show Cause Order, April 12, 1999 (citing Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 21 (1989) (Fort Bragg)).

III.     Regional Director's Decision

      In his Decision and Order on the petition, the RD noted that, although the Authority does not resolve issues involving vacant positions, the Authority in Fort Bragg "carved [out] a limited exception [to this general rule] where a question exists regarding the unit status of a grievant." RD's Decision at 4. The RD noted that the exception in Fort Bragg addressed the "existence of a threshold issue of arbitrability that must be resolved `in order to avoid the possibility that the grievant will be denied access to arbitration improperly.'" Id.

      Relying on Fort Bragg, the RD dismissed the petition. First, the RD concluded that there was no threshold issue of arbitrability since the unit status of the grievant's position was not at issue; rather, the grievances raised the issue of "whether there was someone with the authority to grant leave in [the grievant's] department." Id. Accordingly, the RD determined that dismissing the petition will not interfere with the grievances proceeding to arbitration. Second, the RD concluded that it would be "wholly speculative to anticipate what the result of any arbitration would be in terms of any underlying contractual violation and/or remedy." Id. The RD further noted that determining the status of the work leader position "at this point in time could prove to be totally irrelevant and result in an unnecessary use of the Authority's resources," especially when the Activity "does not intend to fill the [work leader] position again." Id.

IV.     Application for Review

      In its application for review, the Union claims that the status of the work leader position at issue here is "directly and integrally related to . . . core grievance issues" that will be arbitrated. Application at 2. The Union further claims that the RD's decision not to determine the status of this position is:

(1)     Detrimental to the grievant's ability to demonstrate and prevail on core issues of the grievance;
(2)     Beneficial to the Agency's shifting posture regarding the position in question and its impact on core grievance issues;
(3)     Inconsistent with Authority case law and precedents; and
(4)     Potentially, creat[es a situation at arbitration where the Arbitrator is forced to] exceed[] his authority by determining unit and or classification issues regarding the [work] leader position.

Id. at 2-3.

      We note that the Union's application for review does not specify the appropriate regulatory grounds for granting an application for review. However, we construe [n2]  the Union's application to be based on the regulatory ground that the RD's decision raises an issue for which there is an absence of precedent. [n3] 

V.     Analysis and Conclusion

      We conclude that granting the Union's application for review is warranted as there is an absence of precedent addressing the issue presented by this case, namely, whether an RD may resolve a representation issue concerning a vacant position where the unit determination is a collateral issue necessary to the resolution of a grievance at arbitration. An analysis of this issue involves the interplay between two different lines of Authority precedent: (1) the precedent in representation cases regarding the Authority's resolution of petitions seeking clarification of whether a vacant position is part of the bargaining unit; and (2) the precedent in arbitra- [ v55 p783 ] tion cases regarding the authority of arbitrators to make bargaining unit determinations.

A.     Precedent in Representation Cases

      In Bureau of the Mint, the Authority held that it will not determine the bargaining unit status of vacant positions. However, in Fort Bragg, the Authority carved out an exception to this precedent. In Fort Bragg, the unit clarification issue arose when an employee grieved his discharge from the agency. When the grievance was not resolved, the union invoked arbitration. Prior to the arbitration hearing, the agency asserted that the grievant was not included in the bargaining unit. To resolve the issue of the grievant's bargaining unit status, the agency filed a petition for clarification of the bargaining unit status of the grievant. The arbitrator stayed the arbitration proceedings pending the Authority's decision on the unit clarification petition. The RD dismissed the petition based on the Authority's long-standing precedent in Bureau of the Mint not to clarify the unit status of vacant positions.

      The union filed an application for review of the RD's decision to dismiss the petition. On review, the Authority concluded that the RD had to resolve the unit clarification of the vacant position formerly held by the grievant "to avoid the possibility that the grievant will be denied access to arbitration improperly." Fort Bragg, 34 FLRA at 25. The Authority found that the arbitrability of the grievant's case could be determined only if the bargaining unit status of the vacant position, formerly held by the grievant, was resolved. Moreover, the Authority noted that the lack of a bargaining unit determination "would frustrate the Statute's policy favoring the resolution of employee grievances through arbitration." Fort Bragg, 34 FLRA at 25 (citing 5 U.S.C. § 7121(a)(1) and (b)). The Authority further highlighted the expressed recognition of the "centrality of arbitration under the Statute," id., by the Ninth Circuit Court of Appeals as a basis for the holding in Fort Bragg that requires the RD to make the bargaining unit determination to resolve the arbitrability of the grievant's case. Accordingly, the Authority remanded the unit clarification petition to the RD for a determination of whether the vacant position was properly included in the certified bargaining unit at the time the grievant was discharged.

      In applying the foregoing precedent, the RD correctly decided that the exception in Fort Bragg only extends to cases where the arbitrability of the grievance is at issue, and is not applicable to this case since the unit status of the grievant's position is not in dispute.

B.     Precedent in Arbitration Cases

      In U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 852 (1988), reconsideration granted, 36 FLRA 155 (1990), the Authority held that an arbitrator is not empowered to determine a question of a grievant's bargaining-unit status, even if the unit question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement. The Authority noted that section 7105(a)(2)(A) of the Statute provides that the Authority shall "determine the appropriateness of units for labor organization representation." Moreover, section 7112(a)(1) directs that the "Authority shall determine the appropriateness of any unit."

      The Authority indicated that "[w]hen parties to a grievance are faced with such a grievability question [requiring a unit determination], they can place the grievance in abeyance pending the filing of a clarification of unit petition." Id. at 854. In subsequent cases where arbitrators improperly made unit determinations, the Authority has consistently followed this approach by ordering the parties to place the grievance in abeyance pending the outcome of a clarification of unit petition, if the union decided to pursue the question of the unit status of the grievant by filing such a petition. [n4] 

C.     Approach To Be Followed in This and Future Cases

      We conclude that our holding in Fort Bragg must be extended, and that the Authority must resolve the unit clarification petition concerning any vacant position when that unit determination is a collateral issue necessary to the resolution of a grievance at arbitration. As in Fort Bragg, we find that the absence of a decision on the [ v55 p784 ] unit question under these circumstances would "frustrate the Statute's policy favoring the resolution of employee grievances through arbitration." Fort Bragg, 34 FLRA at 25. Moreover, such an extension of Fort Bragg is warranted in light of the recognized "centrality of arbitration under the Statute." Id.

      Consistent with this extension of Fort Bragg, an RD shall resolve a petition for unit clarification of a vacant position provided that both parties agree, or the arbitrator decides, that the unit determination is necessary to the resolution of the grievance at arbitration. In the event the parties disagree that the unit determination is necessary to the resolution of the arbitration, the RD would nevertheless resolve a unit clarification petition if the arbitrator determines that the resolution of the unit question is necessary. Where a determination has been made that a unit clarification is needed, the parties must place the grievance in abeyance pending a decision on the unit clarification petition.

      In this case, there is no indication that the parties agree that the unit determination is necessary for resolution of the grievances at arbitration. In line with the approach outlined above, we modify the RD's Decision and Order so that the Union's petition is dismissed without prejudice to the Union's right to refile the petition if the parties agree, or the Arbitrator decides, that the grievances cannot be resolved without determining the unit status of the work leader position.

VI.     Order

      The application for review is granted. We modify the RD's Decision and Order to dismiss the Union's unit clarification petition without prejudice to the Union's right to refile the petition if the conditions described in the above decision are met.






Footnote # 1 for 55 FLRA No. 132

   As the basis for its application, the Union erroneously cites and relies on the Authority`s regulations governing appeals to the Office of General Counsel of an RD's decision not to issue a complaint on an unfair labor practice charge.


Footnote # 2 for 55 FLRA No. 132

   Where a party has not identified the specific basis for its application for review, the Authority has construed its arguments within the regulatory framework. See, e.g., U.S. Department of Defense, Stateside Dependents Schools, Fort Benning Schools Fort Benning, Georgia and Bennine Education Association, 48 FLRA 471, 474 (1993); U.S. Department of the Air Force, 90th Missile Wing (SAC) F.E. Warren Air Force Base, Cheyenne, Wyoming and AFGE, Local 2354, 48 FLRA 650, 655 (1993).


Footnote # 3 for 55 FLRA No. 132

   The Authority's Regulations state that

The Authority may grant an application for review [of a representation decision] only when the application demonstrates that review is warranted on one or more of the following grounds:
(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or
(3)     There is a genuine issue over whether the Regional       Director has:
(i)     Failed to apply established law;
(ii)     Committed a prejudicial procedural error;
(iii)     Committed a clear and prejudicial error concerning a substantial factual matter.

5 C.F.R. § 2422.31(c).


Footnote # 4 for 55 FLRA No. 132

   See, e.g., U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160, 172-3 (1991) (award as to temporary employees held in abeyance pending the resolution of a clarification petition); 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) (award was