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08:0070(12)CO
The decision of the Authority follows:
8 FLRA No. 12
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL
LOCAL 3723, AFL-CIO
Respondent
and
DEPARTMENT OF THE NAVY
NAVY EXCHANGE, NAVAL STATION
SAN DIEGO, CALIFORNIA
Charging Party
Case No. 8-CO-6
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER WERE
FILED BY THE RESPONDENT.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE
EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT UNION
VIOLATED SECTION 7116(B)(5) OF THE STATUTE BY REFUSING TO REFER A
GRIEVANCE FILED BY THE ACTIVITY (CHARGING PARTY) TO ARBITRATION ON THE
BASIS OF ITS CONTENTION THAT MANAGEMENT HAD NO RIGHT TO FILE A GRIEVANCE
UNDER THE PARTIES NEGOTIATED AGREEMENT. /1/ THE COMPLAINT FURTHER
ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE STATUTE /2/
BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF. /3/
THE JUDGE CONCLUDED THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED
TO ARBITRATION VIOLATED SECTION 7116(B)(5) OF THE STATUTE. HE FURTHER
CONCLUDED THAT RESPONDENT'S REFUSAL TO SUBMIT THE THRESHOLD ISSUE OF
ARBITRABILITY TO AN ARBITRATOR FOR RESOLUTION CONSTITUTED A FAILURE TO
COMPLY WITH SECTION 7121 OF THE STATUTE AND WAS THEREFORE A VIOLATION OF
SECTION 7116(B)(8). THE AUTHORITY DISAGREES WITH THESE CONCLUSIONS.
IN FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA
NO. 23 (1981), DECIDED BY THE AUTHORITY AFTER THE JUDGE ISSUED HIS
DECISION IN THIS CASE, THE AUTHORITY HELD THAT, IN THE PARTICULAR
CIRCUMSTANCES OF THAT CASE, MANAGEMENT'S REFUSAL TO PERMIT ITS
SUPERVISORS TO APPEAR AT AN ARBITRATION PROCEEDING AS REQUESTED BY THE
UNION DID NOT VIOLATE SECTION 7116(A)(5) OF THE STATUTE. THE AUTHORITY
ADDITIONALLY CONCLUDED THAT THE REFUSAL BY MANAGEMENT TO PARTICIPATE IN
THE ARBITRATION PROCEEDING DID NOT CONSTITUTE A FAILURE TO COMPLY WITH
THE PROVISIONS OF SECTION 7121 OF THE STATUTE IN VIOLATION OF SECTION
7116(A)(8). IN SO CONCLUDING, THE AUTHORITY STATED:
(S)ECTION 7121(A)(1) REQUIRES THAT 'ANY COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE
PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF
ARBITRABILITY,' AND
SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
SUBJECT TO BINDING
ARBITRATION 'WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE
AGENCY.' THEREFORE, EITHER PARTY MAY INVOKE ARBITRATION ON ISSUES
INVOLVING, INTER ALIA,
QUESTIONS OF ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT
PREVENT THE ARBITRATION
FROM PROCEEDING BY REFUSING TO PARTICIPATE. THUS, NOTHING IN THE
STATUTE RENDERS THE EX PARTE
PROCEEDING IMPROPER, AND THE RESPONDENT ACTED AT ITS OWN RISK BY NOT
PARTICIPATING.
* * * *
(W)HERE AS HERE, BINDING ARBITRATION IS INVOKED BY ONE PARTY, THE
OTHER PARTY REFUSES TO
PARTICIPATE AND THE ARBITRATOR DETERMINES TO PROCEED EX PARTE AND
ISSUES AN AWARD, THE REFUSAL
BY THE SECOND PARTY TO PARTICIPATE DOES NOT CONSTITUTE A REJECTION OF
THE COLLECTIVE
BARGAINING AGREEMENT IN VIOLATION OF SECTION 7116(A)(5) AND (1).
(FOOTNOTES OMITTED.)
THUS, FOR THE REASONS MORE FULLY STATED IN FEDERAL AVIATION
ADMINISTRATION, ALASKAN REGIONAL OFFICE, SUPRA, THE AUTHORITY SIMILARLY
CONCLUDES THAT INASMUCH AS THE CHARGING PARTY HEREIN COULD HAVE ITSELF
INVOKED AND PROCEEDED TO ARBITRATION WITH OR WITHOUT THE UNION'S
PARTICIPATION, THE RESPONDENT UNION HEREIN DID NOT VIOLATE SECTION
7116(B)(5) AND (8) OF THE STATUTE, AS ALLEGED, BY REFUSING TO REFER THE
CHARGING PARTY'S GRIEVANCE TO ARBITRATION. /4/ ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CO-6 BE, AND IT
HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
ANTONIO G. SERRANO
CAROLYN M. BUTTERWORTH
FOR THE RESPONDENT
GERALD M. COLE, ESQUIRE
FOR THE GENERAL COUNSEL
ROBERT F. GRIEM, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON FEBRUARY 28,
1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
LOS ANGELES, CALIFORNIA REGION, A HEARING WAS HELD BEFORE THE
UNDERSIGNED ON MAY 15, 1980 AT SAN DIEGO, CALIFORNIA.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
THE ACT). IT IS BASED ON A CHARGE FILED ON JULY 30, 1979 BY DEPARTMENT
OF NAVY, NAVAL EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA (HEREIN
CALLED THE EMPLOYER OR CHARGING PARTY) AGAINST AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO (HEREIN
CALLED THE UNION OR RESPONDENT). THE SAID CHARGE ALLEGED, IN SUBSTANCE,
THAT RESPONDENT UNION VIOLATED SECTIONS 7116(B)(1)(5) AND (8) OF THE ACT
BY: (1) DIRECTING EMPLOYEE ADOR BERNAL NOT TO PROCESS A GRIEVANCE,
WHICH HAD BEEN PREVIOUSLY FILED, BECAUSE OF THE ATTENDANCE BY THE
ACTIVITY'S PERSONNEL OFFICER AT A GRIEVANCE MEETING; (2) REFUSING TO
ACKNOWLEDGE A GRIEVANCE FILED BY THE EMPLOYER AGAINST THE UNION, AND
THEREAFTER FILING AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE EMPLOYER.
THE COMPLAINT AGAINST RESPONDENT HEREIN ALLEGED, IN SUBSTANCE, THAT
SINCE JULY 24, 1979 THE UNION REFUSED TO REFER TO ARBITRATION A
GRIEVANCE WHICH THE EMPLOYER HAD FILED ON JUNE 21, 1979 RE A DISPUTE
OVER THE INTERPRETATION OF A NEGOTIATED GRIEVANCE PROCEDURE BECAUSE IT
CONTENDED THE EMPLOYER HAS NO RIGHT UNDER THE NEGOTIATED AGREEMENT TO
FILE A GRIEVANCE; THAT BY SUCH CONDUCT RESPONDENT HAS REFUSED TO
BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(B)(5) OF THE ACT. IT
IS FURTHER ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE
ACT BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF.
A RESPONSE TO THE COMPLAINT WAS SERVED BY RESPONDENT ON MARCH 17,
1980. IN ADDITION TO DENYING THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES, RESPONDENT ASSERTED THEREIN THAT THE EMPLOYER HAD NO RIGHT TO
FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT; THAT IF IT HAS SUCH
RIGHT, THE GRIEVANCE PROCEDURE SHOULD HAVE BEEN EXHAUSTED; AND THAT
SECTION 7121(A) OF THE ACT HAS NO APPLICATION TO THE PRESENT CASE SINCE
THE STATUTE BECAME EFFECTIVE AFTER THE DATE OF THE AGREEMENT.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE RESPONDENT HAS BEEN THE
COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES WHO ARE EMPLOYED
AT THE NAVY EXCHANGE, NAVAL STATION AT SAN DIEGO, CALIFORNIA.
2. BOTH THE EMPLOYER AND RESPONDENT HAVE BEEN, AND STILL ARE,
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING ALL ELIGIBLE
EMPLOYEES OF THE NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, BUT EXCLUDING
MANAGERS, SUPERVISORS, EMPLOYEES IN PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY AND TEMPORARY EMPLOYEES. THE SAID AGREEMENT,
BUT ITS TERMS, IS EFFECTIVE FROM NOVEMBER 30, 1978 FOR A PERIOD OF THREE
YEARS UNTIL NOVEMBER 30, 1981.
3. THE COLLECTIVE BARGAINING AGREEMENT PROVIDES INTER ALIA, AS
FOLLOWS:
ARTICLE VI (UNION REPRESENTATION)
"SECTION 7. THE PARTIES AGREE THAT DISCUSSIONS OR MEETINGS BETWEEN
SHOP STEWARDS IN THE
COURSE OF REPRESENTING AN EMPLOYEE SHALL BE WITH THE FIRST LEVELS OF
SUPERVISION. DISCUSSIONS
WITH DEPARTMENT MANAGERS, IN WHICH THE UNION IS REPRESENTING AN
EMPLOYEE, WILL NORMALLY
INVOLVE AN OFFICER OF THE UNION, WHO MAY BE ACCOMPANIED BY THE
APPROPRIATE SHOP STEWARD."
ARTICLE XXVII (GRIEVANCE PROCEDURE)
"SECTION 2. A GRIEVANCE IS DEFINED TO BE ANY DISPUTE OR COMPLAINT
BETWEEN THE EMPLOYER AND
THE UNION OR AN EMPLOYEE OR EMPLOYEES COVERED BY THIS AGREEMENT, AND
WHICH MAY PERTAIN TO ANY
OF THE FOLLOWING:
(1) ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION, OR
VIOLATION OF THIS AGREEMENT
. . . "
"SECTION 3. QUESTIONS AS TO WHETHER OR NOT A GRIEVANCE IS ON A MATTER
FOR WHICH A STATUTORY
APPEAL PROCEDURE EXISTS, IF NOT RESOLVED BY THE PARTIES, SHALL BE
REFERRED TO THE ASSISTANT
SECRETARY FOR LABOR/MANAGEMENT RELATIONS FOR DECISION . . . ALL OTHER
DISPUTES OF GRIEVABILITY
OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION AS A THRESHOLD
ISSUE IN RELATED GRIEVANCES."
"SECTION 4. REASONABLE TIME DURING WORKING HOURS WILL BE ALLOWED THE
UNION, EMPLOYEES,
EMPLOYEE REPRESENTATIVES, AND WITNESSES TO DISCUSS, PREPARE FOR AND
PRESENT GRIEVANCES
INCLUDING ATTENDANCE OF MEETINGS WITH MANAGEMENT OFFICIALS AND FORMAL
HEARINGS."
"SECTION 6. EMPLOYEE PROCEDURE. THE FOLLOWING GRIEVANCE PROCEDURE
APPLIES TO THE EMPLOYEES
OF THE UNIT.
A. STEP 1. THE GRIEVANCE SHALL BE FIRST TAKEN UP ORALLY OR IN
WRITING BY THE CONCERNED
EMPLOYEE OR STEWARD WITH THE IMMEDIATE SUPERVISOR . . . "
ARTICLE XXVIII (ARBITRATION)
"SECTION 1. IF THE EMPLOYEE OR THE EMPLOYER AND THE UNION FAIL TO
SETTLE ANY GRIEVANCE
PROCESSED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, SUCH GRIEVANCE,
UPON WRITTEN REQUEST BY
THE EMPLOYER OR THE UNION WITHIN 45 CALENDAR DAYS AFTER ISSUANCE OF
THE EXCHANGE OFFICER'S
DECISION MAY BE SUBMITTED TO ARBITRATION."
4. BY LETTER DATED JUNE 21, 1979 /5/ THE EMPLOYER INFORMED
RESPONDENT'S PRESIDENT, HILLARY E. HOLT, THAT IT DESIRED TO FILE A
GRIEVANCE "UPON THE INTERDEPARTMENTAL LOCAL 3723;" THAT IT FELT GRIEVED
SINCE THE UNION INTERFERED WITH MANAGEMENT'S RIGHT TO ENSURE IT COMPLIED
WITH THE PROVISIONS OF ARTICLE XXVII OF THE AGREEMENT. THE LETTER
STATED THAT ON JUNE 20, 1979 MANAGEMENT WAS REFUSED THE RIGHT TO HAVE AN
OFFICIAL PRESENT AT A STEP 1 GRIEVANCE MEETING AS PROVIDED BY ARTICLE
XXVII, SECTION 4; THAT ON JUNE 21, THE GRIEVANT AND HER REPRESENTATIVE
MET WITH A SUPERVISOR TO CONDUCT THE FIRST STEP GRIEVANCE PROCEEDING,
AND BOTH THE GRIEVANT AND HER REPRESENTATIVE REFUSED TO PROCEED BECAUSE
OF THE PRESENCE OF PAULA ALDEN, WHO WAS PERSONNEL OFFICER AND A
MANAGEMENT OFFICIAL.
5. IN ANSWER TO THE AFORESAID LETTER RESPONDENT FILED AN UNFAIR
LABOR PRACTICE CHARGE (8-CA-141) AGAINST THE EMPLOYER ALLEGING THAT BY
FILING A GRIEVANCE ON JUNE 21 IT: (A) DELAYED THE PROCESSING OF A
GRIEVANCE BY INSISTING THAT ALDEN BE PRESENT DURING A FIRST STEP
GRIEVANCE; (B) UNILATERALLY CHANGED WORKING CONDITIONS INCONSISTENT
WITH THE WRITTEN AGREEMENT-- ALL ALLEGEDLY VIOLATIVE OF SECTIONS
7116(A)(1) AND (5) OF THE ACT. /6/
6. BY LETTER DATED JULY 16 FROM NAVY EXCHANGE OFFICER R.T. CLEARY,
ADDRESSED TO RESPONDENT, THE EMPLOYER REQUESTED THAT ITS GRIEVANCE OF
JUNE 21 BE SUBMITTED TO ARBITRATION UNDER THE NEGOTIATED AGREEMENT.
7. RESPONDENT REPLIED TO THIS REQUEST BY LETTER DATED JULY 24 IN
WHICH THE UNION STATED THAT SINCE THE MATTER HAD BEEN REFERRED TO THE
FEDERAL LABOR RELATIONS AUTHORITY, NO ACTION COULD BE TAKEN UNTIL THE
LATTER RENDERED A DECISION.
8. ON OCTOBER 30 ARBITRATOR LLOYD H. BAILER RENDERED AN ARBITRATION
OPINION AND AWARD CONCERNING A PREVIOUS GRIEVANCE FILED BY THIS EMPLOYER
CONCERNING LANGUAGE USED BY RESPONDENT IN ITS NEWSLETTER. IN RESPECT TO
THE GRIEVABILITY ISSUE, THE UNION CONTENDED, AS HERE, THAT THE EMPLOYER
WAS NOT PERMITTED TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT.
THE ARBITRATOR HELD THAT NEITHER UNDER EXECUTIVE ORDER 11491, NOR THE
AGREEMENT ITSELF, WAS THE EMPLOYER BARRED FROM FILING A GRIEVANCE. HE
CONCLUDED, HOWEVER, THAT WHILE THE LANGUAGE USED BY THE UNION WAS
UNFOUNDED, NO BASIS EXISTED FOR A REMEDY. /7/
CONCLUSIONS
IN ITS OPPOSITION TO THE AVERMENTS IN THE COMPLAINT RESPONDENT UNION
ASSERTS AS FOLLOWS: (1) NO ISSUE WAS RAISED BY THE CHARGING PARTY IN
ITS CHARGE FILED ON JULY 30, 1979 RE A REQUEST FOR ARBITRATION, AND THUS
THE ALLEGED REFUSAL TO REFER THE EMPLOYER'S GRIEVANCE TO ARBITRATION IS
NOT PROPERLY RAISED HEREIN; (2) THE EMPLOYER HAD NO RIGHT UNDER THE
NEGOTIATED AGREEMENT TO FILE A GRIEVANCE, SINCE ARTICLE XXVII, SECTION
6, THEREOF BESPEAKS ONLY OF EMPLOYEE GRIEVANCES IN OUTLINING THE
PROCEDURAL STEPS TO BE FOLLOWED IN FILING GRIEVANCES; AND, FURTHER,
SINCE THE EMPLOYER ELECTED NOT TO NEGOTIATE PROCEDURES FOR THE FILING OF
GRIEVANCES BY MANAGEMENT, IT HAS CLEARLY WAIVED ITS RIGHT TO GRIEVE;
(3) IT HAS NOT REFUSED TO BARGAIN IN GOOD FAITH SINCE THERE HAS BEEN NO
PRESENTATION OF A MANAGEMENT PROPOSAL NOR A DEMAND TO BARGAIN, BUT
CONTRARIWISE, THE EMPLOYER HAS UNILATERALLY CHANGED CONDITIONS OF
EMPLOYMENT BY INSISTING THAT THE PERSONNEL OFFICER BE PRESENT, AS A
REPRESENTATIVE OF THE SUPERVISOR, AT THE FIRST STEP OF THE GRIEVANCE
PROCEDURE; AND, UNDER ARTICLE VI, SECTION 7, OF THE AGREEMENT, NO RIGHT
TO REPRESENTATION IS ACCORDED SUPERVISORS AT A GRIEVANCE MEETING; (4)
SECTION 7121(A) OF THE ACT HAS NO APPLICABILITY HEREIN SINCE THE
AGREEMENT BETWEEN THE PARTIES WAS NEGOTIATED UNDER EXECUTIVE ORDER
11491, AS AMENDED, AND THE EMPLOYER NEVER INSISTED UPON A CLAUSE
PERMITTING IT TO SUBMIT DISPUTES TO ARBITRATION. IT INSISTS THAT THE
SAVINGS PROVISION IN SECTION 7135(A) PRECLUDES RETROACTIVE APPLICABILITY
OF 7121 AND NO BINDING ARBITRATION CLAUSE INVOLVING THE EMPLOYER EXISTS
HEREIN.
(1) IT IS TRUE THAT THE CHARGE HEREIN DOES NOT SPECIFICALLY STATE
THAT RESPONDENT UNION REFUSED TO REFER MANAGEMENT'S GRIEVANCE TO
ARBITRATION. HOWEVER, IT DOES AVER THAT RESPONDENT REFUSED TO
ACKNOWLEDGE THE GRIEVANCE ITSELF. IN THE PRIVATE SECTOR THE SUPREME
COURT TOOK PAINS TO DECLARE THAT A CHARGE FILED WITH THE NATIONAL LABOR
RELATIONS BOARD IS NOT TO BE MEASURED BY THE SAME STANDARDS APPLICABLE
TO A PLEADING IN A PRIVATE LAWSUIT. MOREOVER, IT REFUSED TO CONFINE THE
BOARD TO FRAMING A COMPLAINT TO THE SPECIFIC MATTERS ALLEGED IN THE
CHARGE. NLRB V. FANT MILLING CO., 360 U.S. 301(1959). THUS, THE CHARGE
MERELY SETS IN MOTION THE MACHINERY OF AN INQUIRY. FURTHER, THE REFUSAL
TO REFER TO ARBITRATION, AS ALLEGED IN THE COMPLAINT, IS REASONABLY
RELATED TO THE AVERMENT IN THE CHARGE. SEE DORAL HOTEL AND COUNTRY
CLUB, 240 NLRB NO. 150. ACCORDINGLY, I REJECT THE RESPONDENT'S
CONTENTION THAT THE ISSUE IS NOT PROPERLY RAISED.
(2) IN RESPECT TO THE CONTENTION BY THE UNION THAT THE EMPLOYER HAS
NO RIGHT TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT, I AGREE
WITH THE GENERAL COUNSEL THAT THIS IS A THRESHOLD ISSUE TO BE DECIDED BY
THE ARBITRATOR. APART FROM QUESTIONS RE THE AVAILABILITY OF STATUTORY
APPEAL PROCEDURES FOR GRIEVANCES, ALL DISPUTES OF GRIEVABILITY AND
ARBITRABILITY ARE TO BE REFERRED TO ARBITRATION AS A THRESHOLD ISSUE
UNDER ARTICLE XXVII, SECTION 3 OF THE AGREEMENT. THUS THIS DEFENSE HAS
NO APPLICABILITY HEREIN AND IS NOT PROPERLY RAISED BEFORE THE
UNDERSIGNED. /8/
(3) IT HAS BEEN ESTABLISHED IN THE PUBLIC SECTOR THAT A UNILATERAL
REFUSAL, WITHOUT MORE, TO PROCEED TO ARBITRATION OF A GRIEVANCE
CONSTITUTES AN UNFAIR LABOR PRACTICE. WHERE SUCH REFUSAL WAS NOT
GROUNDED IN GOOD FAITH, IT WAS HELD TO BE VIOLATIVE OF SECTION 19(A)(1)
AND (6) OF THE ORDER. /9/ DEPARTMENT OF THE ARMY AND AIR FORCE,
DEPARTMENT OF DEFENSE, DIVISION OF MILITARY AFFAIRS, STATE OF NEW YORK,
1 FLRA NO. 73; INTERNAL REVENUE SERVICE AUSTIN DISTRICT, AUSTIN, TEXAS,
2 FLRA NO. 71; ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
CONSOLIDATED EXCHANGE, FORT DIX, NJ, A/SLMR NO. 700.
IN THE INSTANT CASE RESPONDENT UNION UNILATERALLY REFUSED TO REFER
THE EMPLOYER'S GRIEVANCE TO ARBITRATION BASED ON ITS CONCLUSION THAT
MANAGEMENT COULD NOT GRIEVE UNDER THE NEGOTIATED AGREEMENT. FURTHER, IT
FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH WAS THEREAFTER DISMISSED.
IT DOES NOT LIE, HOWEVER, WITH EITHER PARTY TO A CONTRACT TO MAKE THE
DETERMINATION RE QUESTIONS OF ARBITRABILITY. APART FROM THE FACT THAT
ARTICLE XXVII, SECTION 2 OF THE AGREEMENT DEFINES A GRIEVANCE AS ANY
DISPUTE BETWEEN THE EMPLOYER AND THE UNION OR AN EMPLOYEE, AN ARBITRATOR
CONCLUDED, IN A PRIOR DISPUTE BETWEEN THE SAME PARTIES HEREIN, THAT THIS
EMPLOYER COULD FILE A GRIEVANCE THEREUNDER. IN THE FACE OF THIS
DETERMINATION, AS WELL AS THE LANGUAGE EMPLOYED IN THE AGREEMENT,
RESPONDENT CAN SCARCELY RELY ON GOOD FAITH IN ITS REFUSAL TO ARBITRATE
THE DISPUTE HEREIN.
NOTE IS TAKEN THAT IN RESPONSE TO THE EMPLOYER'S REQUEST FOR
ARBITRATION RESPONDENT STATED IT COULD NOT COMPLY THEREWITH SINCE THE
MATTER WAS REFERRED TO THE FEDERAL LABOR RELATIONS AUTHORITY. THE UNION
WAS APPARENTLY REFERRED TO THE UNFAIR LABOR PRACTICE CHARGES WHICH IT
HAD FILED AGAINST THE EMPLOYER. BUT NOT ONLY WERE THESE DISMISSED, BUT
THEY INVOLVED COLLATERAL ISSUES NOT NECESSARILY DETERMINATIVE OF
RESPONDENT'S OBLIGATIONS IN RESPECT TO ARBITRATING THE DISPUTE BETWEEN
THE PARTIES. FURTHER, THE AUTHORITY HAS CONCLUDED THAT HOLDING A
CONTRACTUAL GRIEVANCE IN ABEYANCE PENDING THE PROCESSING OF RELATED EEO
MATTERS IN A U.S. DISTRICT COURT CONSTITUTES A VIOLATION OF 19(A)(1)
AND (6) OF THE ORDER. IRS, SUPRA. LIKEWISE, AN EMPLOYER'S REFUSAL TO
PROCEED TO ARBITRATION PENDING A DISTRICT COURT'S DECISION RE A UNION'S
PETITION TO COMPEL ARBITRATION WAS NOT DEEMED GOOD FAITH, AND THE
AUTHORITY HELD SUCH REFUSAL TO BE VIOLATIVE OF THE ORDER. DEPT. OF THE
ARMY AND AIR FORCE, SUPRA.
THUS I CONCLUDE THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED TO
ARBITRATION ON JULY 24, 1979 WAS VIOLATIVE OF SECTION 7116(B)(5) OF THE
ACT.
(4) THE GENERAL COUNSEL MAINTAINS THAT RESPONDENT ALSO VIOLATED
SECTION 7116(B)(8) OF THE ACT SINCE IT FAILED TO COMPLY WITH SECTION
7121(A) THEREOF. THE LATTER SECTION PROVIDES AS FOLLOWS:
"SECTION 7121
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTION (D) AND (E) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT."
RESPONDENT ARGUES THAT A SAVINGS CLAUSE IS CONTAINED IN SECTION
7135(A) OF THE ACT PROVIDING FOR AN EXTENSION OF PROCEDURES UNDER
EXECUTIVE ORDER 11491, AS AMENDED. IT CONTENDS THAT SINCE THERE WAS NO
PROCEDURE FOR ARBITRATION OF A GRIEVANCE BY MANAGEMENT, THERE CAN BE NO
RETROACTIVE APPLICATION OF A GRIEVANCE SETTLEMENT PROCEDURE.
UNDER SECTION 13 OF THE ORDER IT WAS NOT MANDATORY TO INCLUDE BINDING
ARBITRATION AS PART OF A NEGOTIATED GRIEVANCE PROCEDURE. HOWEVER,
SECTION 7121 OF THE ACT MANDATES THAT NEGOTIATED GRIEVANCE PROCEDURES
SHALL PROVIDE FOR BINDING ARBITRATION OF ANY GRIEVANCE NOT SETTLED UNDER
THOSE PROCEDURES. IN ITS INTERPRETATION AND GUIDANCE REPORT (CASE NO.
0-PS-2), ISSUED ON DECEMBER 19, 1979, THE AUTHORITY DISCUSSED THE
IMPACT, IF ANY, OF SECTION 7135(A)(1) ON REQUIREMENT UNDER THE ORDER.
THE AUTHORITY RECOGNIZED THAT WHERE THE PARTIES ENTERED INTO AN
AGREEMENT BEFORE THE EFFECTIVE DATE OF THE STATUTE WITH NO PROVISION FOR
BINDING ARBITRATION AS PART OF THE GRIEVANCE PROCEDURE, THEY MIGHT AGREE
TO CONTINUE THE TERMS THEREOF UNDER SECTION 7135(A)(1) OF THE STATUTE.
IT CONCLUDED THAT SECTION 13 OF THE ORDER, HOWEVER, HAS BEEN SUPERSEDED
BY SECTION 7121 OF THE STATUTE; THAT PROVISIONS IN AGREEMENTS
CONFERRING JURISDICTION UPON THE ASSISTANT SECRETARY TO RESOLVE
ARBITRABILITY QUESTIONS ARE RENDERED VOID BY THE STATUTE; AND THAT,
UNLESS OTHERWISE AGREED, PROCEDURES IN AGREEMENTS FOR SETTLING
GRIEVANCES MUST BE READ AS PROVIDING THAT QUESTIONS OF ARBITRABILITY
SHALL BE SUBMITTED TO ARBITRATION.
THE NEGOTIATED AGREEMENT HEREIN DOES, IN FACT, PROVIDE THAT DISPUTES
OF GRIEVABILITY OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION.
UNDER THE AUTHORITY'S INTERPRETATION OF THE APPLICABLE STATUTORY
PROVISION, THIS BINDING ARBITRATION PROVISION MUST BE UTILIZED.
RESPONDENT MAY NOT INSIST INSTEAD UPON HAVING QUESTIONS OF THIS NATURE
RESOLVED BY THE ASSISTANT SECRETARY. FURTHER, SECTION 7135(A) DOES NOT
AFFORD RELIEF TO THE UNION SINCE THE STATUTE REQUIRES THAT, UNLESS
OTHERWISE AGREED UPON, ALL GRIEVANCE PROCEDURES MUST BE READ AS
PROVIDING FOR THE SUBMISSION TO ARBITRATION OF ALL ISSUES OF
ARBITRABILITY. ACCORDINGLY, AND SINCE THE ISSUE RAISED BY RESPONDENT
MUST, IN THE FINAL ANALYSIS BE DETERMINED BY THE ARBITRATOR AFTER
SUBMISSION, I CONCLUDE THE UNION HAS FAILED TO COMPLY WITH SECTION 7121
OF THE ACT. BY REASON OF ITS FAILURE, RESPONDENT HAS VIOLATED SECTIONS
7116(B)(8) THEREOF.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(B)(5) AND (8) OF
THE ACT BY REASON OF ITS REFUSAL TO PROCEED TO ARBITRATION OF THE
GRIEVANCE FILED BY THE EMPLOYER HEREIN ON JUNE 21, 1979, I RECOMMEND
THAT AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY REFUSING TO PROCEED TO ARBITRATION REGARDING A
GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
STATION, SAN DIEGO, CALIFORNIA ON JUNE 21, 1979, ALLEGING A VIOLATION OF
ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT
WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF THE EMPLOYER'S
DESIRE TO INVOKE ARBITRATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ACT:
(A) UPON REQUEST, PROCEED TO ARBITRATION REGARDING A GRIEVANCE FILED
BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL STATION, SAN DIEGO,
CALIFORNIA, ALLEGING A VIOLATION OF ARTICLE XXVII, SECTION 4 OF THE
NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID EMPLOYER.
(B) POST AT THE BULLETIN BOARDS PROVIDED FOR THE POSTING OF UNION
MATERIAL BY THE DEPARTMENT OF NAVY, NAVY EXCHANGE, NAVAL STATION, SAN
DIEGO, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723,
AFL-CIO, AND THEY WITH THE CONSENT AND APPROVAL OF DEPARTMENT OF NAVY,
NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA, SHALL BE POSTED FOR
60 CONSECUTIVE DAYS THEREAFTER. REASONABLE STEPS SHALL BE TAKEN TO
ENSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION 8, 350 SOUTH FIGUEROA
STREET, LOS ANGELES, CALIFORNIA IN WRITING WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 20, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SECTOR
WE HEREBY NOTIFY OUR MEMBERS THAT:
WE WILL NOT UNILATERALLY REFUSE TO PROCEED TO ARBITRATION REGARDING A
GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
STATION, SAN DIEGO, CALIFORNIA, ON JUNE 21, 1979, ALLEGING A VIOLATION
OF ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED
AGREEMENT WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF ITS DESIRE
TO INVOKE ARBITRATION.
WE WILL, UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
FILED ON JUNE 21, 1979 BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
NAVAL STATION, SAN DIEGO, CALIFORNIA ALLEGING A VIOLATION OF ARTICLE
XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID
EMPLOYER.
UNION OR LABOR ORGANIZATION
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 350
SOUTH FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES, CA
90071 AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805.
--------------- FOOTNOTES: ---------------
/1/ SECTION 7116(B)(5) OF THE STATUTE READS AS FOLLOWS:
SEC. 7116. UNFAIR LABOR PRACTICES
* * * *
(B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR
ORGANIZATION--
* * * *
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH AN AGENCY AS
REQUIRED BY THIS
CHAPTER(.)
/2/ SECTION 7116(B)(8) OF THE STATUTE STATES THAT IT SHALL BE AN
UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION "TO OTHERWISE FAIL OR
REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER."
/3/ SECTION 7121 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY . . .
* * * *
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION
SHALL--
* * * *
(3) INCLUDE PROCEDURES THAT--
* * * *
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
/4/ IN THIS REGARD, IT IS NOTED THAT, ACCORDING TO THE JUDGE, THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT "GRIEVANCE(S),
UPON WRITTEN REQUEST BY THE EMPLOYER OF THE UNION . . . MAY BE SUBMITTED
TO ARBITRATION."
/5/ ALL DATED HEREINAFTER MENTIONED OCCUR IN 1979 UNLESS OTHERWISE
SPECIFIED.
/6/ RESPONDENT ALSO FILED A CHARGE (8-CA-140) AGAINST THE NAVY
EXCHANGE ALLEGING IT INTERFERED AND PREVENTED THE PRESENTATION AND
PROSECUTION OF THE GRIEVANCE IN VIOLATION OF ARTICLE XXVII, SECTION 6
AND ARTICLE VI, SECTION 7 OF THE AGREEMENT. BOTH CHARGES WERE DISMISSED
AND THE DISMISSALS SUSTAINED ON THE GROUND THAT THE PRESENCE OF THE
PERSONNEL OFFICER WITH THE IMMEDIATE SUPERVISOR WAS NOT A CLEAR OR
PATENT BREACH OF THE AGREEMENT, BUT INVOLVED A MATTER OF CONTRACT
INTERPRETATION.
/7/ THIS OPINION AND AWARD IS PRESENTLY BEFORE THE AUTHORITY ON
APPEAL.
/8/ NOTE IS TAKEN THAT ARBITRATOR BAILER HAS HELD THAT THIS EMPLOYER
IS NOT PRECLUDED, UNDER THE AGREEMENT, FROM FILING A GRIEVANCE AGAINST
THE UNION HEREIN.
/9/ CF. DEPT. OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, DISABILITY INSURANCE PROGRAM STAFF, CHICAGO, ILLINOIS,
A/SLMR NO. 1128 WHERE RESPONDENT REFUSED TO PROCESS A GRIEVANCE PENDING
AN EEO PROCEEDING, BUT AGREED TO PROCESS IT AFTER THE EEO MATTER WAS
RESOLVED. IN THIS INSTANCE NO VIOLATION WAS FOUND.