08:0780(130)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec CA



[ v08 p780 ]
08:0780(130)CA
The decision of the Authority follows:


 8 FLRA No. 130
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES METAL TRADES COUNCIL
 Charging Party
 
                                            Case No. 3-CA-1860
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1), (5) AND (8)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RECOMMENDED THAT THE CASE BE DISMISSED IN ITS ENTIRETY.  THEREAFTER,
 THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF 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 THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1860 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ADOPTING THE JUDGE'S CONCLUSION THAT THE COMPLAINT SHOULD BE
 DISMISSED AS UNTIMELY INSOFAR AS IT ALLEGES A VIOLATION ARISING OUT OF
 RESPONDENT'S ALLEGED REFUSAL TO ACT ON THE UNION'S NOVEMBER 6, 1979
 REQUEST FOR SUBMISSION TO ARBITRATION, THE AUTHORITY NOTES THAT THERE IS
 NO EVIDENCE THAT THE UNION WAS PREVENTED FROM FILING A CHARGE DURING THE
 SIX MONTH PERIOD FOLLOWING THAT DATE BY ANY FAILURE OF THE AGENCY TO
 PERFORM A DUTY OWED.  (SEE SECTION 7118(A)(4) OF THE STATUTE.) RATHER,
 AS DETAILED BY THE JUDGE, THE UNION DID NOTHING TO PURSUE ITS REQUEST
 UNTIL MID-OCTOBER 1980 AND DID NOT FILE AN UNFAIR LABOR PRACTICE CHARGE
 UNTIL JANUARY 16, 1981, WELL BEYOND THE APPLICABLE SIX MONTH PERIOD.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NORFOLK NAVAL SHIPYARD
                      RESPONDENT
 
    AND
 
    TIDEWATER VIRGINIA FEDERAL EMPLOYEES
    METAL TRADES COUNCIL
                      CHARGING PARTY
 
                            CASE NO. 3-CA-1860
 
    DENNIS K. REISCHL, ESQ.
                      FOR THE RESPONDENT
 
    HEATHER BRIGGS, ESQ.
                      FOR THE GENERAL COUNSEL
 
    BEFORE:  ALAN W. HEIFETZ
                      ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
 OF AN UNFAIR LABOR PRACTICE CHARGE FILED JANUARY 16, 1981, WITH THE
 FEDERAL LABOR RELATIONS AUTHORITY.  CONSEQUENTLY, ON MARCH 27, 1981, THE
 REGIONAL DIRECTOR OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
 RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5), AND )8) OF THE STATUTE BY
 UNILATERALLY IMPLEMENTING A CHANGE IN THE PROCEDURES FOR SUBMITTING A
 GRIEVANCE TO BINDING ARBITRATION, THEREBY COMMITTING A CLEAR AND PATENT
 BREACH OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, AND BY REFUSING
 TO SUBMIT A GRIEVANCE TO BINDING ARBITRATION.  RESPONDENT DENIES THE
 ALLEGATIONS.
 
    A HEARING WAS HELD ON APRIL 28, 1981, IN NORFOLK, VIRGINIA.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO
 INTRODUCE EVIDENCE.  POST HEARING BRIEFS WERE FILED BY JUNE 9, 1981, AND
 HAVE BEEN CONSIDERED.  UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
 OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
 CONCLUSIONS, AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    BY MEMORANDUM DATED NOVEMBER 6, 1979, THE TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES METAL TRADES COUNCIL (THE UNION) ADVISED RESPONDENT THAT IT
 WISHED TO TAKE THE CASE OF SAMUEL L. WILLIAMS TO BINDING ARBITRATION.
 /1/
 
    ARTICLE 34, SECTION 2 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 PROVIDES, IN PERTINENT PART:
 
    WITHIN FIVE CALENDAR DAYS FOLLOWING RECEIPT OF WRITTEN NOTICE TO
 ARBITRATE, THE EMPLOYER
 
    WILL REQUEST THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO SUBMIT
 A LIST OF FIVE OR MORE
 
    IMPARTIAL PERSONS QUALIFIED TO ACT AS ARBITRATORS.  THE PARTIES WILL
 MEET WITHIN FIVE CALENDAR
 
    DAYS AFTER RECEIPT OF SUCH LIST TO SELECT AN ARBITRATOR . . .
 
    RESPONDENT DID NOT SUBMIT A REQUEST TO FMCS FOR A LIST OF
 ARBITRATORS.  /2/ INSTEAD, RESPONDENT WROTE BACK TO THE UNION ON
 DECEMBER 3, 1979, REVIEWING THE MERITS OF THE WILLIAMS GRIEVANCE AND
 ASKING THE UNION TO RECONSIDER ITS POSITION ON THE MERITS.
 
    NEITHER PARTY TOOK ANY ACTION WITH REGARD TO THE GRIEVANCE FOR OVER
 10 MONTHS.  /3/ IN MID-OCTOBER 1980, THE GRIEVANT ASKED THE UNION FOR A
 STATUS REPORT ON HIS GRIEVANCE.  THIS INQUIRY PROMPTED THE UNION TO
 RENEW ITS REQUEST FOR ARBITRATION IN A LETTER DATED OCTOBER 15, 1980.
 MANAGEMENT RESPONDED BY LETTER DATED OCTOBER 28, 1980, WHICH CONCLUDED:
 
    THUS, FOR FAILURE TO PROSECUTE, WE HAD CONSIDERED THE CASE OF MR.
 WILLIAMS TO BE A CLOSED
 
    ISSUE.  I CONSIDER THAT THE ONLY VIABLE ALTERNATIVE NOW OPEN TO THE
 COUNCIL IS TO PURSUE THE
 
    QUESTION OF ARBITRABILITY.  IF YOU CHOOSE TO PURSUE THIS COURSE OF
 ACTION, A WRITTEN
 
    STIPULATION OF THE ISSUES TO BE SUBMITTED TO ARBITRATION APPEARS TO
 BE A NECESSITY.
 
    BY LETTER DATED NOVEMBER 17, 1980, RESPONDENT REITERATED ITS POSITION
 THAT IT WOULD BE WILLING TO SUBMIT THE QUESTION OF ARBITRABILITY AND
 SUGGESTED THAT THE PARTIES MEET "IN AN EFFORT TO AGREE UPON THE ISSUE(S)
 TO BE SUBMITTED TO ARBITRATION." THIS SAME POSITION WAS AGAIN STATED IN
 A LETTER TO THE UNION DATED DECEMBER 22, 1980.  THE UNION RESPONDED ON
 JANUARY 5, 1981, AGAIN REQUESTING ARBITRATION AND SUGGESTING THAT THE
 QUESTION OF ARBITRABILITY COULD BE RAISED AT THE HEARING FOR A "BENCH
 DECISION".  IN ITS LAST RESPONSE, DATED JANUARY 29, 1981, RESPONDENT
 STATED:
 
    IN PAST CASES CONCERNING ARBITRABILITY, THE SHIPYARD HAS INSISTED ON
 RESOLVING
 
    ARBITRABILITY QUESTIONS SEPARATE AND APART FROM CONSIDERING THE
 MERITS OF THE CASE.  THE CASE
 
    OF (A NAMED EMPLOYEE) IS ONE OF SEVERAL PAST CASES WHERE THE QUESTION
 OF ARBITRABILITY WAS
 
    RESOLVED IN THIS MANNER.  THE SHIPYARD HAS NOT REFUSED TO ARBITRATE
 THE GRIEVANCE OF
 
    MR. WILLIAMS;  HOWEVER, MANAGEMENT STILL CONSIDERS IT ESSENTIAL THAT
 THE ISSUE OF ARBITRABILITY
 
    BE RESOLVED.  THIS PRACTICE HAS BEEN BASED ON THE PARTIES (SIC)
 INTERPRETATION OF THE
 
    NEGOTIATED AGREEMENT . . .
 
    ALTHOUGH THE PARTIES' COLLECTIVE BARGAINING AGREEMENT IS SILENT AS TO
 THE HANDLING OF ARBITRABILITY DISPUTES, OTHER DOCUMENTARY EVIDENCE
 DEMONSTRATES THAT, CONSISTENT WITH THE CLAIM ASSERTED IN RESPONDENT'S
 LETTER OF