American Federation of Government Employees, Local 169 (Union) and Tinker Air Force Base, Air Logistics Center, Oklahoma City, Oklahoma (Activity)

 7 FLRA No. 8
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 169
 Union
 
 and
 
 TINKER AIR FORCE BASE,
 AIR LOGISTICS CENTER,
 OKLAHOMA CITY, OKLAHOMA
 Activity
 
                                            Case No. O-AR-117
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR DON J. HARR FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A))
 (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THIS MATTER CONCERNS THE GRIEVANT'S
 FAILURE TO REPORT FOR DUTY ON APRIL 4, 1978.  WHEN THE GRIEVANT RETURNED
 TO DUTY ON APRIL 5, HIS SUPERVISOR DISCUSSED THE ABSENCE WITH HIM AFTER
 WHICH THE GRIEVANT'S TIME CARD WAS MARKED TO REFLECT THE UNAUTHORIZED
 ABSENCE ON APRIL 4.  ON APRIL 14 THE GRIEVANT FILED A GRIEVANCE
 DISPUTING THE UNAUTHORIZED ABSENCE CHARGE.  THE GRIEVANCE WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.  HOWEVER, BEFORE THE ARBITRATION HEARING WAS
 HELD THE ACTIVITY REMOVED THE GRIEVANT FOR HIS UNAUTHORIZED ABSENCE ON
 APRIL 4 AND THE GRIEVANT APPEALED HIS REMOVAL TO THE FEDERAL EMPLOYEE
 APPEALS AUTHORITY (FEAA) ON JUNE 27, 1978.  ON JANUARY 29, 1979, THE
 MERIT SYSTEMS PROTECTION BOARD (THE SUCCESSOR AGENCY TO FEAA) SUSTAINED
 THE GRIEVANT'S REMOVAL.
 
    ON APRIL 12, 1979, THE GRIEVANCE WAS HEARD BY THE ARBITRATOR WHO
 FOUND IT NONARBITRABLE.  THE ARBITRATOR RULED THAT THE GRIEVANCE WAS
 EXCLUDED BY THE PARTIES' COLLECTIVE BARGAINING AGREEMENT FROM COVERAGE
 BY THE NEGOTIATED GRIEVANCE PROCEDURE AS A MATTER FOR WHICH A STATUTORY
 APPEAL PROCEDURE EXISTED.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE AGENCY FILED AN OPPOSITION.  /2/
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT BY FINDING THE SIMPLE
 CHARGE OF UNAUTHORIZED ABSENCE TO BE COVERED BY A STATUTORY APPEAL
 PROCEDURE, THE ARBITRATOR BASED HIS AWARD ON A MISTAKE OF FACT.  IN
 SUPPORT THE UNION ARGUES THAT ALTHOUGH THE GRIEVANT'S REMOVAL WAS
 COVERED BY A STATUTORY APPEAL PROCEDURE, THE CHARGE OF UNAUTHORIZED
 ABSENCE IS NOT ITSELF A MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE
 EXISTS.  BECAUSE THE UNION DOES NOT INDICATE IN WHAT MANNER THE
 UNAUTHORIZED ABSENCE WHICH CONSTITUTED THE BASIS FOR THE GRIEVANT'S
 REMOVAL AND WHICH WAS FULLY ADJUDICATED BY THE MERIT SYSTEMS PROTECTION
 BOARD COULD PROPERLY HAVE BEEN EXTRICATED FROM THE REMOVAL ACTION AND
 RELITIGATED BEFORE THE ARBITRATOR WITHOUT REGARD TO THE REMOVAL ACTION,
 THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S AWARD
 DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE AGREEMENT.  IN SUPPORT, THE UNION PRINCIPALLY
 ARGUES THAT THE ARBITRATOR VIOLATED THE AGREEMENT PROVISIONS REQUIRING
 MANAGEMENT TO NOTIFY THE UNION AT STEP 3 OF THE GRIEVANCE PROCEDURE OF
 ITS DETERMINATION THAT A GRIEVANCE IS NONARBITRABLE AND REQUIRING (AT
 THAT TIME) ARBITRABILITY DISPUTES CONCERNING STATUTORY APPEAL PROCEDURES
 TO BE RESOLVED BY THE ASSISTANT SECRETARY OF LABOR.  HOWEVER, THE UNION
 FAILS TO ESTABLISH THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE
 AGREEMENT.  THE ARBITRATOR SPECIFICALLY ADDRESSED THE QUESTION OF
 WHETHER THE AGENCY'S CONTENTIONS OF NONARBITRABILITY MADE AT THE HEARING
 WERE PROPERLY RAISED IN ACCORDANCE WITH THE AGREEMENT AND CONCLUDED
 THAT, UNDER THE CIRCUMSTANCES, THEY HAD BEEN.  THE UNION'S DISAGREEMENT
 WITH THE ARBITRATOR'S FINDINGS AND CONCLUSIONS THAT THERE HAD BEEN
 COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF THE NEGOTIATED GRIEVANCE
 PROCEDURE PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  E.G., U.S.
 DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND QUALITY SERVICE AND NATIONAL
 JOINT COUNCIL OF FOOD INSPECTION LOCALS, AFGE, AFL-CIO, 6 FLRA NO.
 48(1981).
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 21, 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 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, RULES, 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.
 
    /2/ THE UNION CONTENDS THAT THE AGENCY'S OPPOSITION WAS NOT TIMELY
 FILED AND THEREFORE MAY NOT BE CONSIDERED BY THE AUTHORITY.  HOWEVER,
 THE UNION'S INITIAL FILING OF ITS EXCEPTIONS WAS DEFICIENT AND THE
 AGENCY'S OPPOSITION WAS FILED WITHIN THE REQUIRED PERIOD AFTER THE
 UNION'S EXCEPTIONS CONFORMED TO PART 2425 OF THE AUTHORITY'S RULES OF
 PROCEDURE.  ACCORDINGLY, THE AGENCY'S OPPOSITION IS PROPERLY BEFORE THE
 AUTHORITY FOR CONSIDERATION.
 
    IN ITS OPPOSITION, IN ADDITION TO OPPOSING THE UNION'S EXCEPTIONS,
 THE AGENCY CONTENDS THAT THE GRIEVANCE RELATED TO THE GRIEVANT'S
 REMOVAL, WHICH IS A MATTER DESCRIBED IN SECTION 7121(F) OF THE STATUTE,
 AND THAT CONSEQUENTLY UNDER SECTION 7122(A) THE AUTHORITY IS WITHOUT
 JURISDICTION IN THIS CASE.  HOWEVER, THE ARBITRATOR'S AWARD DOES NOT IN
 ANY RESPECT ADDRESS THE MERITS OF THE GRIEVANT'S REMOVAL, BUT INSTEAD
 PERTAINS ONLY TO THE QUESTION OF WHETHER THE GRIEVANCE WAS ARBITRABLE
 UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THUS, THE
 ARBITRATOR'S AWARD CONCERNS A DISCRETE ISSUE COLLATERAL TO THE DISPUTE
 OVER THE GRIEVANT'S REMOVAL AND IS THEREFORE PROPERLY SUBJECT TO REVIEW
 BY THE AUTHORITY UNDER SECTION 7122(A) OF THE STATUTE.  SEE U.S.
 IMMIGRATION AND NATURALIZATION SERVICE AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
 COUNCIL, 6 FLRA NO. 12(1981).