United States Environmental Protection Agency, Region IV, Atlanta, Georgia (Activity) and National Federation of Federal Employees, Local 1907 (Union)

 5 FLRA No. 36
 
 UNITED STATES ENVIRONMENTAL
 PROTECTION AGENCY, REGION IV,
 ATLANTA, GEORGIA
 Activity
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL
 1907
 Union
 
                                            Case No. 0-AR-88
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR GEO. SAVAGE KING FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE GRIEVANT WAS SUSPENDED FOR 14 DAYS FOR INSUBORDINATION AND FOR
 REFUSING TO CARRY OUT VERBAL AND WRITTEN INSTRUCTIONS OF HIS SUPERVISOR.
  WHEN THE ACTIVITY'S REGIONAL ADMINISTRATOR NOTIFIED THE GRIEVANT OF HIS
 SUSPENSION, HE ALSO APPRISED THE GRIEVANT OF HIS RIGHT TO FILE A
 GRIEVANCE IN ACCORDANCE WITH THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  THEREAFTER, THE GRIEVANT FILED A GRIEVANCE DISPUTING HIS
 SUSPENSION.  ALTHOUGH HE NOTIFIED HIS SUPERVISOR AND THE BRANCH CHIEF OF
 HIS GRIEVANCE, THE GRIEVANT SENT THE GRIEVANCE DIRECTLY TO THE REGIONAL
 ADMINISTRATOR.  HE CONTENDED THAT NEITHER HIS SUPERVISOR NOR THE BRANCH
 CHIEF HAD THE AUTHORITY TO REVERSE HIS SUSPENSION.  THE REGIONAL
 ADMINISTRATOR REFUSED TO ACCEPT THE GRIEVANCE ON THE GROUND THAT THE
 GRIEVANT HAD FAILED TO FOLLOW THE SPECIFIED PROCESSING STEPS OF THE
 NEGOTIATED GRIEVANCE PROCEDURE.  UNABLE TO RESOLVE WHETHER THE GRIEVANCE
 HAD BEEN PROPERLY FILED, THE PARTIES SUBMITTED TO ARBITRATION THE AGREED
 ISSUE OF COMPLIANCE WITH THE "PROCEDURAL STEPS FOR FILING (A) GRIEVANCE,
 ARTICLE VI 3;  A, B, C, D." IN ADDITION, THE UNION ALSO WANTED THE
 MERITS OF THE GRIEVANCE SUBMITTED TO THE ARBITRATOR AT THE SAME TIME.
 
    AT THE ARBITRATION HEARING, THE ARBITRATOR DETERMINED THAT THE FIRST
 QUESTION TO BE RESOLVED WAS THE PROCEDURAL ONE OF THE GRIEVANT'S
 COMPLIANCE WITH THE GRIEVANCE PROCEDURE.  IN ADDRESSING THIS PROCEDURAL
 ISSUE, THE ARBITRATOR STATED THE PERTINENT PORTION OF THE COLLECTIVE
 BARGAINING AGREEMENT TO BE ARTICLE VI, SECTION 3, WHICH PROVIDES IN
 RELEVANT PART:
 
                     ARTICLE VI - GRIEVANCE PROCEDURE
 
    3.  PROCEDURES:
 
    A.  STEP 1.  THE GRIEVANCE SHALL FIRST BE TAKEN UP ORALLY BY THE
 CONCERNED EMPLOYEE WITH
 
    THE APPROPRIATE SUPERVISOR IN AN ATTEMPT TO SETTLE THE MATTER .  . .
 .
 
    B.  STEP 2.  IF THE MATTER IS NOT SATISFACTORILY SETTLED AT STEP 1,
 THE EMPLOYEE OR HIS
 
    UNION REPRESENTATIVE MAY, WITHIN FIVE (5) WORKING DAYS OF THE
 DECISION IN STEP 1, PRESENT THE
 
    GRIEVANCE IN WRITING TO THE BRANCH CHIEF OR EQUIVALENT . . . .
 
    C.  STEP 3.  IF THE WRITTEN DECISION OF THE BRANCH CHIEF IS
 UNACCEPTABLE TO THE EMPLOYEE,
 
    THE EMPLOYEE SHALL, WITHIN FIVE (5) WORKING DAYS OF THE DECISION IN
 STEP 2, PRESENT THE
 
    WRITTEN GRIEVANCE TO THE DIVISION DIRECTOR . . . .
 
    D.  STEP 4.  IF THE WRITTEN DECISION OF THE DIVISION DIRECTOR IS
 UNACCEPTABLE TO THE
 
    EMPLOYEE, THE EMPLOYEE SHALL, WITHIN FIVE (5) WORKING DAYS OF THE
 DECISION IN STEP 3, PRESENT
 
    THE WRITTEN GRIEVANCE TO THE REGIONAL ADMINISTRATOR . . . .
 
   .          .          .          .
 
 
 THE ARBITRATOR FOUND THAT THE GRIEVANCE WAS NOT ARBITRABLE BECAUSE THE
 GRIEVANT HAD FAILED TO COMPLY WITH THE GRIEVANCE PROCEDURE AND NO
 CIRCUMSTANCES JUSTIFIED THE WAIVER OF ITS PROCEDURAL REQUIREMENTS.  THE
 ARBITRATOR EMPHASIZED THAT THE GRIEVANT'S OWN STATEMENT, THAT HE HAD
 NOTIFIED HIS SUPERVISOR AND THE BRANCH CHIEF OF HIS ACTION TO FILE HIS
 GRIEVANCE DIRECTLY WITH THE REGIONAL ADMINISTRATOR, WAS RECOGNITION BY
 THE GRIEVANT OF THE PROCEDURAL REQUIREMENTS OF THE GRIEVANCE PROCEDURE
 AND OF HIS NONCOMPLIANCE WITH THEM.  CONSEQUENTLY, THE ARBITRATOR, AS
 HIS AWARD, DISMISSED THE GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION, THE UNION CONTENDS THAT "THE ARBITRATOR'S OPINION
 AND AWARD, BY FAILING TO CONSIDER THE MERITS OF THE GRIEVANT'S CASE, IS
 REPUGNANT TO THE CIVIL SERVICE REFORM ACT." AT THE OUTSET, THE UNION
 CONCEDES IN ITS EXCEPTION THAT "THE GRIEVANT DID NOT COMPLY WITH STEPS
 1, 2, AND 3 OF THE NEGOTIATED GRIEVANCE PROCEDURE." HOWEVER, THE UNION
 ARGUES IN SUPPORT OF ITS EXCEPTION THAT THIS ERROR WAS "DE MINIMUS." THE
 UNION MAINTAINS THAT THE REASONS FOR THE ERROR WERE PRESENTED TO THE
 ARBITRATOR, BUT THAT HE NONETHELESS REJECTED THESE REASONS IN FAVOR OF
 STRICT ADHERENCE TO THE NEGOTIATED GRIEVANCE PROCEDURE.  IN CONCLUSION,
 THE UNION CLAIMS THAT THE ARBITRATOR'S AWARD PREVENTING A HEARING ON THE
 MERITS OF THE GRIEVANT'S SUSPENSION ON THE BASIS OF A "DE MINIMUS"
 PROCEDURAL ERROR IS CONTRARY TO ESTABLISHED LEGAL PRINCIPLES.
 
    THE UNION'S EXCEPTION STATES IN GENERAL TERMS A GROUND ON WHICH THE
 AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT UNDER SECTION
 7122(A)(1) OF THE STATUTE.  HOWEVER, THE UNION HAS FAILED TO DEMONSTRATE
 IN WHAT MANNER THE ARBITRATOR'S AWARD IS CONTRARY TO THE CIVIL SERVICE
 REFORM ACT OR TO ESTABLISHED LEGAL PRINCIPLES.  AS NOTED, THE ARBITRATOR
 NEVER CONSIDERED THE MERITS OF THE GRIEVANCE BECAUSE OF HIS RESOLUTION
 OF THE PROCEDURAL QUESTION.  THUS, THE ARBITRATOR'S AWARD SOLELY
 CONCERNED THE QUESTION SUBMITTED BY THE PARTIES OF WHETHER THE GRIEVANT
 HAD COMPLIED WITH THE PROCEDURAL REQUIREMENTS OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.  THE ARBITRATOR EXPRESSLY DETERMINED THAT THE
 GRIEVANT HAD KNOWINGLY NOT COMPLIED WITH THE REQUIREMENTS AND THAT NO
 CIRCUMSTANCES JUSTIFIED WAIVING ADHERENCE TO THESE REQUIREMENTS.
 ACCORDINGLY, AS HIS AWARD, HE DISMISSED THE GRIEVANCE.  IN ITS EXCEPTION
 THE UNION HAS CONCEDED THAT THE GRIEVANT FAILED TO COMPLY WITH THE
 REQUIREMENTS OF THE GRIEVANCE PROCEDURE.  THE UNION HAS ALSO EMPHASIZED
 THAT THE REASONS FOR THE NONCOMPLIANCE WERE EXPLAINED TO THE ARBITRATOR,
 BUT HE NONETHELESS REJECTED THEM IN FAVOR OF STRICT ADHERENCE TO THE
 GRIEVANCE PROCEDURE.  THE SUBSTANCE OF THE UNION'S EXCEPTION IS THAT THE
 GRIEVANT'S ERROR IN THIS CASE WAS "DE MINIMUS" AND THAT THEREFORE THE
 ARBITRATOR SHOULD HAVE PROCEEDED TO THE MERITS OF THE GRIEVANCE.
 HOWEVER, IT IS WELL ESTABLISHED THAT QUESTIONS OF WHETHER THERE HAS BEEN
 COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF A NEGOTIATED GRIEVANCE
 PROCEDURE ARE QUESTIONS FOR RESOLUTION BY AN ARBITRATOR.  JOHN WILEY &
 SONS, INC. V. LIVINGSTON, 376 U.S. 543, 557(1964);  TOBACCO WORKERS
 LOCAL 317 V. LORILLARD CORP., 448 F.2D 949, 953 (4TH CIR. 1971).
 CONSEQUENTLY, THE UNION'S EXCEPTION, ESSENTIALLY DISPUTING THE
 ARBITRATOR'S DETERMINATION TO STRICTLY ADHERE IN THIS CASE TO THE
 REQUIREMENTS OF THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, PRESENTS NO
 BASIS FOR FINDING THE AWARD CONTRARY TO "ESTABLISHED LEGAL PRINCIPLE" OR
 "REPUGNANT TO THE CIVIL SERVICE REFORM ACT." SEE CHAMBERS V. BEAUNIT
 CORP., 404 F.2D 128 (6TH CIR. 1968);  NEWSPAPER GUILD LOCAL 10 V.
 PHILADELPHIA NEWSPAPERS, INC., 87 L.R.R.M. 2670 (E.D. PA. 1974);
 AMERICAN CAN CO. V. UNITED PAPERMAKERS, 356 F.SUPP.  495 (E.D. PA.
 1973).  THEREFORE, THE UNION'S EXCEPTION DOES NOT PROVIDE A BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE AND
 SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY OR ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIES BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.