American Federation of Government Employees, Local 104 (Union) and National Archives and Records Administration (Agency)

[ v61 p681 ]

61 FLRA No. 138

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 104
(Union)

and

NATIONAL ARCHIVES
AND RECORDS
ADMINISTRATION
(Agency)

0-AR-4020

_____

DECISION

August 23, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Kent Hutcheson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator determined that the Union's grievance was not arbitrable. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under § 7122(a) of the Statute and, therefore, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The Agency identified a number of employees who improperly disseminated veterans' information and disciplined 13 employees under Article 22 of the parties' agreement. Seven individuals filed grievances protesting the discipline.

      The Union notified the Agency that the Union was filing an institutional grievance regarding the discipline of the employees. As relevant here, the Agency contended that the institutional grievance was procedurally defective because an institutional grievance could not be used to address this grievance situation. See Award at 6. The grievance proceeded to arbitration.

B.     Arbitrator's Award

      The issue submitted to arbitration was:

Can Local 104 file an institutional grievance on behalf of individual employees (members) who could have filed individual grievances on their own behalf protesting the conduct of the Employer?

Id. at 2. The Arbitrator noted that the parties stipulated that this is the first and only institutional grievance ever filed under the parties' collective bargaining agreement.

      Before the Arbitrator, the Union argued that an institutional grievance is proper for handling multiple individual grievances arising out of the same "course of events." Id. at 6. The Union acknowledged that its grievance would not constitute a group grievance under the parties' agreement because of the subject matter involved, and that each individual covered by its grievance could have filed an individual grievance.

      The Agency contended before the Arbitrator that the grievance could not be pursued as an institutional grievance. According to the Agency, the parties' agreement defines institutional grievances as matters that affect only the Union, and not individuals or groups of individuals.

      The Arbitrator found that the parties' agreement provides for three types of grievances - individual, group, and institutional. Based upon the definition of an institutional grievance set out in the parties' agreement, the Arbitrator concluded that the Union's grievance could not be presented as an institutional grievance because it affected a group of individuals rather than the Union. Accordingly, the Arbitrator found that the Union's grievance was not arbitrable, and dismissed the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

1.      Contrary to Law          

The Union maintains that under § 7112 of the Statute, the bargaining unit represented by Local 104 constitutes an appropriate bargaining unit with a clear and identifiable community of interest among the employees and this unit will promote effective dealings and efficiency of operations. In this regard, the Union asserts it would be more efficient to file an institutional grievance rather than filing over 100 individual grievances on the same matter. The Union further asserts that under § 7114 of the Statute it has the right to provide representation for [ v61 p682 ] the entire bargaining unit. Finally, the Union argues that § 7121(a)(1)(b)(a) [sic] of the Statute assures an exclusive representative the right to present and process grievances.

2.      Essence

      The Union, relying on Article 23, Section 2 of the parties' agreement, argues that the Arbitrator ignored its right to file a grievance. Specifically, the Union states Article 23, Section 2 B. provides that a grievance is any complaint "[b]y the Union concerning any matter rela-ting to the employment of any bargaining unit employee [.]" Exceptions, Exhibit 9 at 62. The Union further argues that the Arbitrator concentrated more on the rights of individual employees to file grievances than on its right to file a grievance.

      Additionally, according to the Union, at the hearing the Agency argued that institutional grievances pertain only to the Union president and stewards. The Union disagrees and contends that the Union is more than its officers and stewards; rather, the entire bargaining unit constitutes the Union. The Union asserts that it filed the grievance on "behalf of the entire bargaining unit because the matter and issue has mass impact upon the workforce." Exceptions at 4.

3.      Exceeds Authority

      The Union contends that the Arbitrator exceeded his authority when he "mis-framed" the Union's institutional grievance as a group grievance. Exceptions at 5. According to the Union, it never implied that the grievance was a group grievance. Rather, the Union states that it listed the affected employees as examples to su-pport its institutional grievance.

      The Union also asserts that the Arbitrator failed to resolve an issue submitted to arbitration. Specifically, the Union contends that when the Arbitrator failed to define an institutional grievance he exceeded his authority. The Union argues that the Agency's "zero error" policy affects the entire bargaining unit and, thus, the grievance cannot be considered as a group grievance but instead must be an institutional grievance. See Exceptions at 6.

B.     Agency's Opposition

1.      Contrary to Law

      The Agency contends that the Union's reliance on §§ 7112, 7114 and 7121 of the Statute is misplaced because the Union's contentions have nothing to do with efficiency of Agency operations, representing grievants in this matter, or recognition of the Union. The Agency argues that because individual employees filed grievances, the Union's use of an institutional grievance is not the proper mechanism to resolve this dispute.

2.      Essence

      The Agency asserts that the Arbitrator's finding that this matter does not constitute an institutional grie-vance clearly flows from Article 23, Section 8A of the parties' agreement. The Agency maintains that the Union's grievance identified 13 employees seeking relief for being disciplined and that these employees constitute a "group" grieving their disciplinary matters. The Agency, relying on DHHS, SSA, 32 FLRA 79 (1988), contends that the question of agreement interpretation is a question solely for the Arbitrator as it is the Arbitrator's construction of the agreement for which the parties have bargained.

3.      Exceeds Authority

      The Agency asserts that the Arbitrator "framed the issue, `the parties stipulated,' and the [A]rbitrator pro-perly resolved only the issue of arbitrability." Opposition at 4. According to the Agency, the Arbitrator complied with the express language of the parties' agreement at Article 23, Section 15B. The Agency contends that the Union failed to substantiate its bare assertion with evidence or fact and failed to demonstrate that the award is deficient.

IV.     Analysis and Conclusions

A.      The Arbitrator's Award Constitutes a Procedural Arbitrability
          Determination

      The Arbitrator was tasked to determine whether the Union could file an institutional grievance on behalf of a group of employees. The Arbitrator examined the language of Article 23, Section 8A of the parties' agreement and determined that an institutional grievance would not pertain to an individual or group of individuals. According to the Arbitrator, that agreement provision "clearly precludes the Union from pursuing this matter as an institutional grievance." Award at 8 (emphasis in original). Therefore, the Arbitrator determined that the matter before him was not arbitrable. Id. at 9.

      The Arbitrator's award constitutes a procedural arbitrability determination. See, e.g. United States Dep't of Def,. Dependents Schools, 55 FLRA 1108, 1110 (1999). The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge [ v61 p683 ] the procedural arbitrability ruling itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. (citing AFGE, Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id.; see also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE, Local 2921, 50 FLRA 184, 185-86 (1995)).

B.     The Award Is Not Contrary to Law

      When a party's exceptions dispute an award's consistency with law or regulation, the Authority reviews the questions of law and regulation raised by the award and the exceptions de novo. See, e.g., United States Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., Baltimore, Md., 57 FLRA 704, 706 (2002). In applying the standard of de novo review, the Authority determines whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union claims that the Arbitrator's procedural arbitrability determination is contrary to law based on provisions of the Statute dealing with the determination of appropriate units, the representational rights and duties of a labor organization, and the grievance procedure. None of these contentions demonstrates that the Arbitrator's award is contrary to law. Rather, the Union's arguments reflect its right to represent emplo-yees in the bargaining unit. However, the award does not deny the Union the right to represent bargaining unit employees in arbitration, it only establishes what type of grievance (individual, group, or institutional) must be utilized for the Union to pursue this grievance to arbitration. As such, the award does not violate the Union's right to represent employees in the bargaining unit, and the exception does not establish that the award is contrary to law.

      We also note that under the Statute parties "may exclude any matter from the application of the grievance procedures . . . ." 5 U.S.C. § 7121(a)(2). As such, parties may agree "`to a [grievance] procedure having narrower coverage[ ]'" than permitted under the Statute. United States Dep't of the Treasury, Customs Serv., Southeast Region, 43 FLRA 921, 925 (1992) (citing AFGE, AFL-CIO, Local 3669, 3 FLRA 311, 314 (1980)). In this case, the parties provided for individual, group and institutional grievances and defined an institutional grievance "as a grievance, which pertain[s] solely to the Union as opposed to an individual or group of individuals." Article 23, Section 8A, Exceptions, Exhibit 9 at 65. Therefore, insofar as the Arbitrator's award is alleged to be contrary to § 7112, it is not.

C.     The Union's Other Exceptions Fail to Demonstrate that the
         Award Is Deficient

      We find that the Union's essence and exceeds authority exceptions directly challenge the Arbitrator's procedural arbitrability determination. Here, the Union's essence argument challenges the Arbitrator's interpretation of the agreement to find that the Union could not file an institutional grievance on behalf of a group of employees. Consistent with well-settled precedent, the Union's claim does not provide a basis for finding the award deficient. See, e.g., United States Dep't of the Treasury, IRS, Austin, Tex., 60 FLRA 360, 361-62 (2004) and the cases cited therein.

      Similarly, the Union's exceeds authority claims do not demonstrate that the award is deficient. In this regard, the Union contends that the Arbitrator exceeded his authority when he "mis-framed" the Union's institutional grievance as a group grievance. This constitutes a direct challenge to the Arbitrator's procedural arbitrabi-lity determination. The Union also contends that the Arbitrator exceeded his authority when he failed to define an institutional grievance. In this connection, the Union argues that because the Agency's zero error po-licy affects the entire bargaining unit, the grievance must be an institutional grievance. As such, this contention also directly challenges the Arbitrator's procedural arbitrability determination.

      Because the Union's essence and exceeds autho-rity exceptions directly challenge the