National Federation of Federal Employees, Local 1642 (Union) and General Services Administration, Federal Supply Service (Activity)

 6 FLRA No. 41
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1642
 (Union)
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 FEDERAL SUPPLY SERVICE
 (Activity)
 
                                            Case No. O-NG-442
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF A
 NEGOTIABILITY ISSUE FILED BY THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1642, PURSUANT TO SECTION 2424.4 OF THE AUTHORITY
 REGULATIONS (5 C.F.R. 2424.4(1980)).  FOR THE REASONS INDICATED BELOW,
 THE PETITION CANNOT BE ACCEPTED FOR REVIEW.
 
    THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT DURING NEGOTIATIONS
 OVER THE IMPLEMENTATION OF A NEW MERIT PROMOTION PLAN, A DISPUTE AROSE
 OVER ARTICLE 19 WHICH GAVE THE DIRECTOR OF PERSONNEL THE RIGHT TO MAKE
 EXCEPTIONS TO THE PLAN.  THE UNION PROPOSED THAT EXCEPTIONS BE MADE ONLY
 IN CASES OF EMERGENCIES WHERE UNIT EMPLOYEES WERE CONCERNED.  THE
 DISPUTE WAS BROUGHT BEFORE THE DIRECTOR OF PERSONNEL WHO REFUSED TO
 AGREE TO THE PROPOSAL.  PURSUANT TO THAT REFUSAL, THE UNION REQUESTED AN
 ALLEGATION OF NONNEGOTIABILITY, WHICH IT RECEIVED BY LETTER DATED
 FEBRUARY 13, 1981.  PRIOR TO THE RESOLUTION OF THAT ISSUE, HOWEVER, ON
 JANUARY 27, 1981, THE PARTIES SIGNED A MEMORANDUM OF UNDERSTANDING OVER
 THE MERIT PROMOTION PLAN, WHICH MADE NO MENTION OR REFERENCE TO THE
 DISPUTE OVER ARTICLE 19.  THE MEMORANDUM OF UNDERSTANDING WAS APPROVED
 BY THE AGENCY HEAD ON FEBRUARY 17, 1981.  APPROXIMATELY ONE MONTH AFTER
 THE AGREEMENT HAD BEEN SIGNED BY THE PARTIES, ON FEBRUARY 19, 1981, THE
 UNION PROPOSED TO ADD TO THE AGREEMENT THE FOLLOWING NOTE:
 
    THIS MEMORANDUM OF UNDERSTANDING INCLUDES ALL SECTIONS, OR ARTICLES
 ETC. OF THE OHR 9335.1,
 
    CHANGE ONE EXCEPT THE SECTION OR ARTICLE 19, MPP EXCEPTIONS.  THIS
 ARTICLE OR SECTION IS IN
 
    DISPUTE AND WILL HAVE TO BE RESOLVED BY THE FEDERAL LABOR RELATIONS
 AUTHORITY AS A
 
    NEGOTIABILITY DISPUTE.
 
    THE UNION FILED THE INSTANT PETITION WITH THE AUTHORITY ON FEBRUARY
 27, 1981.  IN ITS STATEMENT OF POSITION CONCERNING THE APPEAL, THE
 AGENCY CONTENDS, AMONG OTHER THINGS, THAT A VALID AGREEMENT HAD BEEN
 REACHED OVER THE PLAN AND STATES:  "(I)T IS OUR POSITION THAT THE AGENCY
 HAS NO DUTY TO BARGAIN WITH RESPECT TO THIS MATTER, AND THE ISSUE SHOULD
 BE CONSIDERED CLOSED . . . " THE UNION ASSERTS, HOWEVER, THAT THE
 PARTIES WERE WELL AWARE OF THIS DISPUTE, AND, DESPITE THE INTERIM
 SIGNING OF THE MEMORANDUM OF UNDERSTANDING, THE MATTER IS PROPERLY AND
 TIMELY BEFORE THE AUTHORITY.
 
    IT APPEARS THAT THE PRINCIPLE DISPUTE BETWEEN THE PARTIES IN THIS
 CASE CONCERNS THE NATURE AND EXTENT OF THE UNDERLYING OBLIGATION TO
 BARGAIN, NOT WHETHER THE PROPOSAL ITSELF IS NEGOTIABLE.  THE PROPER
 FORUM IN WHICH TO RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT
 WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF
 THE STATUTE.  IN THIS REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE
 DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES'
 CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH
 USE OF THE INVESTIGATORY AND FORMAL HEARING PROCEDURES SET FORTH IN PART
 2423 OF THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR
 PRACTICE PROCEEDINGS.  (SEE, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C., 6 FLRA NO. 15(1981) AND CASES CITED THEREIN.)
 
    BASED ON THE FOREGOING, THIS NEGOTIABILITY APPEAL DOES NOT PRESENT
 ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER
 PART 2424 OF ITS RULES AND REGULATIONS.  ACCORDINGLY, WITHOUT PASSING ON
 THE MERITS OF THE DISPUTE,
 
    IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., JULY 10, 1981
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
    6 FLRA 42;  FLRA O-AR-126;  JULY 10, 1981.
 
    FEDERAL EMPLOYEES
 
    METAL TRADES COUNCIL,
 
    AFL-CIO
 
                                   UNION
 
    AND
 
    PORTSMOUTH NAVAL
 
    SHIPYARD
 
                                 ACTIVITY
 
                             CASE NO. O-AR-126
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR TIM BORNSTEIN 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 CONCERNED
 ALLEGED MISASSIGNMENTS TO DETAILS AND TEMPORARY PROMOTIONS IN VIOLATION
 OF THE COLLECTIVE BARGAINING AGREEMENT AND THE FEDERAL PERSONNEL MANUAL.
  THE GRIEVANCES WERE DENIED BY THE ACTIVITY ON THE MERITS AT EACH STEP
 OF THE PROCEDURE.  CONSEQUENTLY, THE UNION REQUESTED ARBITRATION.
 PURSUANT TO SUBMISSION OF THE GRIEVANCES TO ARBITRATION, THE ACTIVITY
 CONTENDED THAT THE GRIEVANCES WERE SUBSTANTIVELY NONARBITRABLE.
 
    IN ADDRESSING THE ARBITRABILITY ISSUE THE ARBITRATOR FOUND THAT THE
 AGREEMENT LIMITED ARBITRABLE DISPUTES TO ONLY THOSE INVOLVING THE
 INTERPRETATION AND APPLICATION OF THE AGREEMENT.  THUS, HE NOTED THAT A
 POLICY OR REGULATION MUST BE INCORPORATED INTO THE AGREEMENT IN ORDER
 FOR A GRIEVANCE CONCERNING THE POLICY OR REGULATION TO BE ARBITRABLE.
 THE ARBITRATOR DETERMINED THAT, IN THIS CASE, ARTICLE 23 OF THE
 AGREEMENT EXPRESSLY INCORPORATED BY REFERENCE APPROPRIATE REGULATIONS
 DEALING WITH PROMOTIONS.  ARTICLE 23 PROVIDES IN RELEVANT PART:
 
                                ARTICLE 23
 
                          PROMOTIONS AND DETAILS
 
    SECTION 1.  THE EMPLOYER AGREES TO FILL FIRST LEVEL TEMPORARY AND
 PERMANENT UNGRADED
 
    SUPERVISORY AND PRODUCTION FACILITATING POSITIONS IN ACCORDANCE WITH
 THE NAVY MERIT PROMOTION
 
    PROGRAM AND OTHER EXISTING APPLICABLE REGULATIONS. ALL ELIGIBLE
 EMPLOYEES SHALL BE GIVEN FULL
 
    CONSIDERATION FOR THESE POSITIONS.
 
    THEREFORE, THE ARBITRATOR CONCLUDED THAT THE GRIEVANCES IN THIS CASE
 WERE "PROBABLY ARBITRABLE." HOWEVER, THE ACTIVITY ARGUED THAT ARTICLE 23
 ONLY APPLIED TO "FIRST LEVEL TEMPORARY AND PERMANENT UNGRADED
 SUPERVISORY" POSITIONS AND THAT THE POSITIONS IN DISPUTE IN THIS CASE
 DID NOT FALL WITHIN THAT DEFINITION.  SINCE THE UNION HAD NOT ADDRESSED
 ARTICLE 23 BEFORE THE ARBITRATOR WITH RESPECT TO EITHER THE
 ARBITRABILITY DISPUTE OR THE MERITS, THE ARBITRATOR CONCLUDED THAT THE
 APPROPRIATE WAY TO HANDLE THE ISSUE WAS TO SEND THE DISPUTE BACK TO THE
 PARTIES IN AN ATTEMPT TO RESOLVE THE CONFLICT.  IN DOING SO THE
 ARBITRATOR PRESENTED TO THE PARTIES THE QUESTION OF
 
    WHETHER ARTICLE 23'S REFERENCE TO "FIRST LEVEL TEMPORARY AND
 PERMANENT UNGRADED SUPERVISORY
 
    AND PRODUCTION FACILITATING POSITIONS" IS RELEVANT TO THE TEMPORARY
 POSITIONS REFERRED TO IN
 
    THE GRIEVANCE.
 
    THE PARTIES WERE STILL UNABLE TO RESOLVE THE MATTER AND THE ISSUE WAS
 RESUBMITTED TO THE ARBITRATOR.  HOWEVER, IN DOING SO THE UNION CONCEDED
 THAT THE POSITIONS IN DISPUTE WERE NOT "FIRST LEVEL TEMPORARY AND
 PERMANENT UNGRADED SUPERVISORY" POSITIONS.  FINDING, THEREFORE, THAT
 THERE WAS "AGREEMENT BETWEEN THE PARTIES ON WHAT (THE ARBITRATOR) HAD
 VIEWED AS THE CRUCIAL REMAINING QUESTION IN THIS CASE, VIZ., THE
 POSSIBLE RELEVANCE OF ARTICLE 23, SECTION 1," AND HAVING PREVIOUSLY
 FOUND THAT ARTICLE 23 WAS THE ONLY PROVISION WHICH MIGHT HAVE BROUGHT
 THE GRIEVANCE UNDER THE AGREEMENT, THE ARBITRATOR, IN LIGHT OF THE
 UNION'S CONCESSION, CONCLUDED THAT ARTICLE 23 WAS INAPPLICABLE AND HELD
 THAT THE GRIEVANCE WAS NOT ARBITRABLE.
 
    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 DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR "ERRED AS A
 MATTER OF LAW" IN FINDING THE GRIEVANCE WAS NOT ARBITRABLE.  IN SUPPORT
 OF THIS EXCEPTION THE UNION ASSERTS THAT THE ACTIVITY WAIVED ITS RIGHT
 TO CLAIM THE GRIEVANCE WAS NONARBITRABLE BY FAILING TO RAISE THE ISSUE
 PRIOR TO THE ARBITRATION.  THE UNION FURTHER ARGUES THAT THE ARBITRATOR
 INCORRECTLY CONCLUDED THAT ARTICLE 23 WAS THE ONLY PROVISION WHICH WAS
 APPLICABLE IN THIS CASE.  ACCORDING TO THE UNION, THE GRIEVANCE "MAKES A
 CLAIM WHICH ON ITS FACE IS GOVERNED BY THE CONTRACT," AND, THEREFORE,
 THE ARBITRATOR'S DECISION IS AN UNREASONABLE INTERPRETATION OF THE
 PARTIES' INTENTION.  MOREOVER, THE UNION ALLEGES THAT THE AWARD RENDERS
 THE FPM AND THE ACTIVITY'S INSTRUCTIONS INTERPRETING THE FPM "TOTALLY
 INEFFECTIVE."
 
    WHILE THE AUTHORITY WILL FIND AN AWARD DEFICIENT ON THE GROUND THAT
 THE AWARD VIOLATES LAW, THE UNION IN THIS CASE HAS IN NO MANNER SHOWN
 HOW THE ARBITRATOR'S AWARD IS CONTRARY TO LAW.  THE ARBITRATOR CONCLUDED
 THAT THE GRIEVANCE WAS NOT COVERED BY THE COLLECTIVE BARGAINING
 AGREEMENT AND THEREFORE WAS NOT ARBITRABLE.  IN REACHING THIS CONCLUSION
 THE ARBITRATOR, AS REQUESTED BY THE PARTIES, INTERPRETED THE COLLECTIVE
 BARGAINING AGREEMENT.  IN ITS EXCEPTION THE UNION PRESENTS THE SAME
 ARGUMENTS WHICH WERE MADE BEFORE THE ARBITRATOR AND IS ATTEMPTING TO
 RELITIGATE THE DISPUTE IN ORDER TO OBTAIN A DIFFERENT INTERPRETATION OF
 THE AGREEMENT.  HOWEVER, DISAGREEMENT WITH AN ARBITRATOR'S
 INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT DOES NOT CONSTITUTE
 A BASIS FOR FINDING AN AWARD DEFICIENT.  DELAWARE NATIONAL GUARD
 WILMINGTON, DELAWARE AND ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE
 CHAPTER, 5 FLRA NO. 9(1981).  THEREFORE, THE UNION'S EXCEPTION PROVIDES
 NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C.  7122(A) 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. JULY 10, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. SECTION 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO 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 APPLIED 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.