AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3137 and DEPARTMENT OF AGRICULTURE U.S. FOREST SERVICE ALBUQUERQUE, NEW MEXICO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3137

Respondent

and

DEPARTMENT OF AGRICULTURE

U.S. FOREST SERVICE

ALBUQUERQUE, NEW MEXICO

Charging Party

Case No. DA-CO-90649

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned herein serves his Decision, issued pursuant to 5 C.F.R. § 2423.31(d), a copy of which is attached hereto, on all parties to the proceeding on this date, and this case is hereby transferred to the Federal Labor Relations Authority pursuant to pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

MAY 22, 2000, and addressed to:

Office of Case Control

Federal Labor Relations Authority

607 14th Street, NW, Suite 415

Washington, DC 20424

___________________________

GARVIN LEE OLIVER

Administrative Law Judge

Dated: April 19, 2000

Washington, DC

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: April 19, 2000

TO: The Federal Labor Relations Authority

FROM: GARVIN LEE OLIVER

Administrative Law Judge

SUBJECT: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 3137

Respondent

and Case No. DA-CO-90649

DEPARTMENT OF AGRICULTURE

U.S. FOREST SERVICE

ALBUQUERQUE, NEW MEXICO

Charging Party

Pursuant to section 2423.34(b) of the Rules and Regulations, 5 C.F.R. § 2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, issued pursuant to section 2423.31(d), the service sheet, and the transmittal form sent to the parties. Also enclosed in the record are the transcript, exhibits, filings or submissions made by the parties.

Enclosures


FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges OALJ 00-26

WASHINGTON, D.C.

-----------------------------------X

In the Matter of: :

:

AMERICAN FEDERATION OF GOVERNMENT :

EMPLOYEES, AFL-CIO, LOCAL 3137 :

:

Respondent : Case No. DA-CO-90649

:

and :

:

DEPARTMENT OF AGRICULTURE :

U.S. FOREST SERVICE :

ALBUQUERQUE, NEW MEXICO :

:

Charging Party :

-----------------------------------X

U.S. Federal Courthouse

Bonito Courtroom

333 Lomas, NW

Albuquerque, NM 87103

TUESDAY, APRIL 4, 2000

The above-entitled matter came on for hearing, pursuant to notice, at 8:30 a.m.

BEFORE: GARVIN LEE OLIVER

Administrative Law Judge

Free State Reporting, Inc.

APPEARANCES:

On behalf of the Respondent:

JESSE SALCEDO, National Representative

10th District

American Federation of Government Employees

10 Pinon Road

Edgewood, NM 87015-9001

On behalf of the Charging Party:

CHARLES M. De CHATEAUVIEUX, Esq.

Federal Labor Relations Authority

525 S. Griffin Street, Suite 926

Dallas, TX 75202-5093

Free State Reporting, Inc.


42 15-minute recess.

(Off the record.)

(On the record.)

JUDGE OLIVER: Back on the record. This is a bench decision rendered at the close of the hearing pursuant to Section 2423.39 before the Authority's Regulations.

The Unfair Labor Practice complaint alleges that the respondent committed an Unfair Labor Practice in violation of 7116(b)(5) of the Federal Service Labor Management Relations Statute by failing to comply with Article 13, Section E of the parties' collective bargaining agreement by refusing to pay its share of the arbitration expenses of bargaining unit employee Aileen Garcia.

The Respondent's answer denied any violation of the Statute and asserted that all parties, including the Arbitrator, had agreed that the Union's share of the Arbitrator's fees would be paid by the Grievant, Aileen Garcia.

All parties were represented during the course of the hearing for full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses.

Based on the entire record, including my observation of the witnesses and their demeanor, I make the following finding of facts and conclusions of law and recommendations.

Findings of facts. The American Federation of Government Employees, AFL-CIO, Local 3137, is the exclusive

Free State Reporting, Inc.


43

representative of the unit of employees appropriate for collective bargaining at Respondent, Cibola National Forest, Albuquerque, New Mexico facility. AFGE Local 3137 and the Charging Party are parties to a collective bargaining agreement covering employees in the bargaining unit.

Article 13, Section E of the parties' collective bargaining agreement provides that the Arbitrator's fee and the expenses of arbitration, if any, shall be borne equally by the management and the Union.

On May 27, 1998, an arbitration hearing was held concerning the arbitration of the matters concerning the bargaining unit employee Aileen Garcia.

On February 6, 1999, the Arbitrator rendered his opinion and award concerning the arbitration, and the Arbitrator submitted his invoice for the arbitration expenses.

Since February 6, 1999, the Respondent Local 3137 has refused to pay the outstanding balance of the Garcia arbitration expenses.

It appears from an exhibit to the Respondent's answer that an earlier arbitration hearing was held in this matter involving the parties, and that the Arbitrator agreed on June 3, 1997, that the Union's half of the second arbitration would be paid by the Grievant and that Local 3137 would not be responsible for any fees except for the arbitration case on the threshold issues.

Free State Reporting, Inc.


44

Respondent's Exhibit 1, a letter by Arbitrator dated June 14, 1997, reflects that, "in accordance with the Agreement of Parties," the Union should send its check for one-half of the first hearing and that the $800 paid by the Grievant "will be credited to her bill for the second hearing charges."

The General Counsel's Exhibit 3 reflects that the Arbitrator is continuing to credit $800 towards the second hearing but is now insisting that the Union pay the balance.

Conclusions of law. The General Counsel alleges that by its failure to pay its share of the Garcia arbitration expenses, the Respondent has committed an Unfair Labor Practice in violation of 5 U.S.C. 7116(b)(5), constituting a repudiation of Article 13, Section E of the parties' collective bargaining agreement.

In Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996), the Authority clarified its analytical framework for determining whet