American Federation of Government Employees, Local 1501 (Union) and McChord Air Force Base, Washington (Activity)

 7 FLRA No. 63
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1501
 Union
 
 and
 
 MCCHORD AIR FORCE
 BASE, WASHINGTON
 Activity
 
                                            Case No. 0-AR-131
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ROBERT A. O'NEILL FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S "INTERIM OPINION," THE DISPUTE IN THIS
 MATTER AROSE WHEN THE GRIEVANT, A GS-4 REPROMOTION ELIGIBLE, WAS NOT
 SELECTED TO FILL A GS-5 VACANCY.  THE PARTIES WERE UNABLE TO RESOLVE THE
 GRIEVANCE AND IT WAS SUBMITTED TO ARBITRATION.  AT THE ARBITRATION
 HEARING THE ACTIVITY RAISED A QUESTION AS TO THE ARBITRABILITY OF THE
 GRIEVANCE.  THE ARBITRATOR HEARD TESTIMONY ON THE ARBITRABILITY ISSUE
 AND INDICATED THAT
 
    HE HAD SERIOUS QUESTION AS TO WHETHER HE HAD JURISDICTION TO
 ARBITRATE THE MATTER AND
 
    WISHED TO STUDY THE ISSUE FURTHER(.)
 
    THEREAFTER THE ARBITRATOR ISSUED AN "INTERIM OPINION AS TO
 ARBITRABILITY" IN WHICH HE HELD THE GRIEVANCE TO BE ARBITRABLE.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR EXCEEDED HIS
 JURISDICTION. IN SUPPORT OF THIS EXCEPTION THE AGENCY ALLEGES THAT AT
 THE CONCLUSION OF THE ARBITRATION HEARING THE ARBITRATOR RENDERED A
 BENCH DECISION IN WHICH HE HELD THE GRIEVANCE TO BE NONARBITRABLE.
 ACCORDING TO THE AGENCY, AFTER ISSUING THE BENCH DECISION THE ARBITRATOR
 BECAME FUNCTUS OFFICIO AND THEREFORE HE HAD NO AUTHORITY TO ISSUE THE
 "INTERIM OPINION" REVERSING THE BENCH DECISION.
 
    IN THE CIRCUMSTANCES OF THIS CASE THE AGENCY HAS FAILED TO
 DEMONSTRATE THAT THE ARBITRATOR, IN FINDING THE GRIEVANCE ARBITRABLE,
 EXCEEDED HIS AUTHORITY.  THE AGENCY NOTES THAT NO OFFICIAL TRANSCRIPT OF
 THE ARBITRATION PROCEEDING WAS MADE IN THIS CASE AND SUPPORTS ITS
 CONTENTION, THAT THE ARBITRATOR MADE A "FINAL" BENCH RULING ON
 ARBITRABILITY AT THE CLOSE OF THE HEARING, BY MEANS OF AN AFFIDAVIT.
 HOWEVER, THE UNION SPECIFICALLY REFUTES THIS CONTENTION IN ITS
 OPPOSITION AND IT IS FURTHER REFUTED BY THE PLAIN LANGUAGE OF THE
 ARBITRATOR'S AWARD, WHICH HE ENTITLES AN "INTERIM OPINION" AND IN WHICH
 HE REFERS TO THE "INITIAL HEARING" AND STATES THAT HE HAD "WISHED TO
 STUDY THE ISSUE (OF ARBITRABILITY) FURTHER." IN THESE CIRCUMSTANCES, THE
 AGENCY HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR BECAME FUNCTUS
 OFFICIO AT THE CONCLUSION OF THE HEARING AND THEREFORE HAD NO AUTHORITY
 TO SUBSEQUENTLY ISSUE HIS INTERIM OPINION.  THEREFORE, THE AGENCY'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, THE AGENCY'S EXCEPTION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 24, 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, 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.