Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri (Activity) and American Federation of Government Employees, Local 3399, Columbia, Missouri (Union)

 6 FLRA No. 102
 
 HARRY S. TRUMAN
 MEMORIAL VETERANS
 HOSPITAL, COLUMBIA,
 MISSOURI
 Activity
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3399,
 COLUMBIA, MISSOURI
 Union
 
                                            Case No. O-AR-113
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR FRED L. HOFFMEISTER 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 AND THE RECORD BEFORE THE AUTHORITY IN
 THIS CASE, THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT RECEIVED A
 LETTER OF ADMONISHMENT FROM THE ACTIVITY FOR FAILURE TO RESPOND TO
 EITHER HER ELECTRONIC PAGER OR TELEPHONE WHILE ON STANDBY DUTY.  THE
 GRIEVANT FILED A GRIEVANCE AND, WHEN THE PARTIES WERE UNABLE TO RESOLVE
 THE ISSUE, THE UNION REQUESTED ARBITRATION.  SUBSEQUENTLY, THE PARTIES
 JOINTLY REQUESTED A LIST OF ARBITRATORS FROM THE FEDERAL MEDIATION AND
 CONCILIATION SERVICE (FMCS) AND FROM THAT LIST JOINTLY SELECTED THE
 ARBITRATOR.  /1/ PRIOR TO THE ARBITRATION HEARING, HOWEVER, THE GRIEVANT
 RESIGNED FROM THE ACTIVITY.  CONSEQUENTLY, THE UNION INFORMED THE
 ARBITRATOR, THE ACTIVITY, AND FMCS THAT IT WAS WITHDRAWING THE GRIEVANCE
 AND CANCELING THE ARBITRATION HEARING.  THE ACTIVITY TOOK THE POSITION,
 HOWEVER, THAT THE ARBITRATION HEARING SHOULD BE HELD AS SCHEDULED SINCE
 THE ISSUE OF WHETHER ELECTRONIC PAGERS MUST BE KEPT ON AT ALL TIMES
 WHILE IN A STANDBY STATUS WAS INVOLVED.
 
    ULTIMATELY, THE MATTER WENT TO A HEARING BEFORE THE ARBITRATOR, WITH
 THE UNION REFUSING TO PARTICIPATE.  THE ARBITRATOR FIRST ADDRESSED THE
 FOLLOWING PROCEDURAL ISSUE:
 
    CAN THE PARTY WHO INITIATES THE ARBITRATION PROCESS, IN THE CASE AT
 HAND, THE UNION,
 
    UNILATERALLY STOP THE ARBITRATION PROCESS AFTER HAVING FOLLOWED THE
 CONTRACT BY JOINING WITH
 
    THE OTHER PARTY (THE HOSPITAL) TO INITIATE IT AND FURTHER, AFTER
 JOINING WITH THE OTHER PARTY
 
    AS PER CONTRACT TO SELECT THE ARBITRATOR?
 
    THE ARBITRATOR ANSWERED THIS QUESTION IN THE NEGATIVE.  HE HELD THAT,
 UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, "(A)RBITRATION . . .
 IS A JOINT VENTURE," AND THAT THE PARTIES HAD "JOINTLY REQUESTED THE
 FEDERAL MEDIATION (AND) CONCILIATION SERVICE TO FURNISH A PANEL OF
 ARBITRATORS" AND "JOINTLY PARTICIPATED IN A SELECTION PROCESS TO FIND A
 NEUTRAL 3RD PARTY TO SOLVE THEIR DIFFERENCES." AS TO THE MERITS OF THE
 GRIEVANCE, THE ARBITRATOR CONCLUDED THAT "'BEEPERS' MUST BE KEPT ON AT
 ALL TIMES WHILE EMPLOYEES ARE ON STAND-BY." THEREFORE, HE DENIED THE
 GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 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 EXCEEDED HIS
 AUTHORITY IN RENDERING AN AWARD.  IN SUPPORT OF THIS EXCEPTION THE UNION
 ASSERTS THAT ONCE THE GRIEVANCE WAS WITHDRAWN THERE WAS NO LONGER AN
 ISSUE "PROPERLY" BEFORE THE ARBITRATOR TO DECIDE.  FURTHER THE UNION
 ARGUES THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT "EMPOWER" THE
 ARBITRATOR TO HOLD A HEARING ONCE THE GRIEVANCE HAS BEEN WITHDRAWN AND
 THE ARBITRATION CANCELED.
 
    THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S
 AWARD DEFICIENT AS IN EXCESS OF HIS AUTHORITY.  THUS, THE ARBITRATOR
 PROPERLY FOUND THAT A THRESHOLD ISSUE BEFORE HIM INVOLVED THE QUESTION
 OF WHETHER HE HAD JURISDICTION TO HEAR THE MERITS OF THE GRIEVANCE AT
 ALL IN LIGHT OF THE UNION'S ATTEMPTS TO UNILATERALLY STOP THE
 ARBITRATION HEARING AND ITS REFUSAL TO TAKE PART IN IT.  HE THEREFORE
 ADDRESSED THE PROCEDURAL ARBITRABILITY OF THE GRIEVANCE AND FOUND, AS A
 MATTER OF PROCEDURE UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT,
 THAT WHERE THE PARTIES HAD JOINTLY REQUESTED A PANEL OF ARBITRATORS AND
 HAD JOINTLY SELECTED THE ARBITRATOR TO HEAR THE GRIEVANCE, ONE PARTY
 COULD NOT THEREAFTER UNILATERALLY PREVENT THAT GRIEVANCE FROM BEING
 SUBMITTED TO THE ARBITRATOR.  QUESTIONS OF PROCEDURAL ARBITRABILITY,
 SUCH AS THE ONE IN THIS CASE, ARE FOR RESOLUTION BY THE ARBITRATOR.
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA,
 GEORGIA AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1907, 5 FLRA
 NO.  36(1981).  THEREFORE, IT WAS WITHIN THE ARBITRATOR'S AUTHORITY TO
 FIND THE INSTANT GRIEVANCE ARBITRABLE, NOTWITHSTANDING THE UNION'S
 ATTEMPT TO WITHDRAW, AND 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., SEPTEMBER 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN ITS EXCEPTION, THE UNION STATES THAT DURING THE PROCESSING OF
 THE GRIEVANCE THE ACTIVITY ISSUED A NEW POLICY CONCERNING THE USE OF
 PAGERS WHILE IN A STANDBY STATUS.  THE UNION FILED AN UNFAIR LABOR
 PRACTICE CHARGE OVER THE NEW POLICY.  THE PARTIES REACHED AN INFORMAL
 SETTLEMENT OF THE UNFAIR LABOR PRACTICE CHARGE WHICH PROVIDED THAT THE
 PAGER ISSUE, IF NOT SETTLED BY THE PENDING ARBITRATION, WOULD BE
 RESOLVED THROUGH COLLECTIVE BARGAINING.
 
    /2/ 5 U.S.C 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.