10:0059(16)AR - EEO Commission, Houston, TX and AFGE Local No. 3637, Houston, TX -- 1982 FLRAdec AR

 10 FLRA No. 16
 
 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION, HOUSTON, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL NO. 3637, AFL-CIO,
 HOUSTON, TEXAS
 Union
 
                                            Case No. O-AR-346
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR WILLARD E. BENNETT FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION FILED
 AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
 CONCERNS THE SEPARATION OF THE GRIEVANT FOR ALLEGEDLY ABANDONING HER
 POSITION.  A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO ARBITRATION
 DISPUTING THE SEPARATION.
 
    THE ARBITRATOR FOUND THAT THE GRIEVANCE PERTAINED TO A MATTER
 APPEALABLE TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB) AND RULED THAT
 AS A MATTER FOR WHICH AN APPEALS PROCEDURE EXISTED, THE GRIEVANCE WAS
 EXCLUDED FROM COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE.  HOWEVER,
 HE ADDED THAT SHOULD MSPB NOT ACCEPT THE GRIEVANT'S APPEAL, THE
 GRIEVANCE IN THIS CASE WOULD NOT BE ON A MATTER FOR WHICH AN APPEALS
 PROCEDURE EXISTED AND CONSEQUENTLY WOULD BE SUBJECT TO GRIEVANCE AND
 ARBITRATION UNDER THE PARTIES' AGREEMENT.  THE ARBITRATOR THEREFORE
 STATED THAT IN SUCH EVENT, AND IF THE PARTIES SO REQUESTED, HE WOULD
 DECIDE THE MATTER ON THE MERITS.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS DEFICIENT
 BECAUSE THE ARBITRATOR EXCEEDED HIS AUTHORITY.  SPECIFICALLY, THE AGENCY
 CLAIMS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY ATTEMPTING TO
 RETAIN JURISDICTION OVER A MATTER WHICH HE DETERMINED WAS NOT SUBJECT TO
 THE GRIEVANCE PROCEDURE.
 
    THE AGENCY'S EXCEPTION HOWEVER PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  THE AGENCY HAS FAILED TO SUBSTANTIATE IN ANY MANNER
 THAT THE ARBITRATOR ATTEMPTED TO RETAIN JURISDICTION OVER A MATTER WHICH
 HE HAD DETERMINED WAS NOT SUBJECT TO THE GRIEVANCE PROCEDURE.  CONTRARY
 TO THE AGENCY'S ASSERTION, THE ARBITRATOR EXPRESSLY DETERMINED THAT IN
 THE EVENT OF MSPB NOT ACCEPTING THE GRIEVANT'S APPEAL, THE GRIEVANCE IN
 THIS CASE WOULD BE "SUBJECT TO GRIEVANCE AND ARBITRATION." LIKEWISE, THE
 ARBITRATOR IN NO MANNER HAS ATTEMPTED TO RETAIN JURISDICTION.  THE
 ARBITRATOR HAS MERELY SUGGESTED IN THE EVENT OF MSPB NOT ACCEPTING THE
 GRIEVANT'S APPEAL, AND THIS MATTER THEREBY BEING SUBJECT TO GRIEVANCE
 AND ARBITRATION, THAT THE PARTIES CONSIDER REQUESTING THAT HE DECIDE THE
 MATTER ON THE MERITS.  IN SUCH CIRCUMSTANCES THERE WOULD BE NO RETENTION
 OF JURISDICTION FROM THE ORIGINAL SUBMISSION.  RATHER, THE ARBITRATOR'S
 JURISDICTION TO DECIDE THIS MATTER ON THE MERITS IN THE EVENTUALITY OF
 MSPB NOT ACCEPTING THE GRIEVANT'S APPEAL WOULD BE SOLELY PURSUANT TO
 SUCH AN ENSUING MUTUAL REQUEST BY THE PARTIES.  THUS, THE AGENCY'S
 EXCEPTION FAILS TO ESTABLISH THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
 AND IT IS CONSEQUENTLY DENIED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY