11:0055(20)CA - Army, 83rd U.S. Army Reserve Command, Columbus, OH and Council of Locals No. 213, AFGE and AFGE Local 3158 -- 1983 FLRAdec CA

 
 11 FLRA No. 20
 
 DEPARTMENT OF THE ARMY
 83rd UNITED STATES ARMY RESERVE COMMAND,
 COLUMBUS, OHIO
 Respondent
 
 and
 
 COUNCIL OF LOCALS NO. 213, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3158,
 AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-997
 
                           DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and the parties' contentions, the Authority finds:
 
    The stipulated issue presented is whether the Respondent, by refusing
 to proceed to arbitration on a grievance involving the termination of a
 unit employee unless the arbitrator first held a hearing on the question
 of arbitrability, and then, if warranted, a separate hearing on the
 merits of the grievance (i.e., a "bifurcated" hearing), has failed and
 refused to comply with section 7121 of the Statute in violation of
 section 7116(a)(8), and has refused to bargain in good faith with the
 Union in violation of section 7116(a)(1) and (5).
 
    The record indicates that, subsequent to the Charging Party's request
 to proceed to arbitration under the parties' negotiated grievance
 procedure, the parties jointly notified Arbitrator Kindig that he had
 been selected by them to hear a grievance involving the termination of
 employee Harold Frakes.  Following a dispute between the parties and
 presentation of their respective positions to Arbitrator Kindig as to
 whether a bifurcated hearing should be conducted in this matter, the
 arbitrator informed the parties by letter that he had scheduled the
 arbitration hearing and that both the arbitrability issue and the merits
 of the case would be heard on the same day.  As a result of the
 arbitrator's procedural determination, the Respondent notified the
 arbitrator and the Charging Party in writing that it refused to
 participate in the arbitration proceeding and, further, that it
 considered the hearing cancelled.  As a result, the hearing never took
 place.
 
    In Department of Labor, Employment Standards Administration/Wage and
 Hour Division, Washington, D.C., 10 FLRA No. 60 (1982), the Authority
 found a refusal by the Respondent to participate in arbitration
 proceedings pursuant to a negotiated grievance procedure to be
 inconsistent with section 7121 of the Statute and, therefore, violative
 of section 7116(a)(1) and (8) of the Statute.  In so finding, the
 Authority concluded that while section 7121 stated that "arbitration . .
 . may be invoked by either the exclusive representative or the agency,"
 neither the language nor the legislative history of section 7121
 provides a basis for excusing the other party from participating in
 binding arbitration as the mechanism mandated by Congress in section
 7121 for resolving grievances that are not satisfactorily settled at
 earlier stages of the negotiated grievance procedure.  It follows that
 the Respondent herein, based on the reasons more fully set forth in
 Department of Labor, failed to comply with the requirements of section
 7121 /1/ and therefore violated section 7116(a)(1) and (8) of the
 Statute.  /2/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the Department of the Army,
 83rd United States Reserve Command, Columbus, Ohio, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally refusing or failing to proceed to arbitration
 regarding a grievance filed by the Council of Locals No. 213, American
 Federation of Government Employees, AFL-CIO and American Federation of
 Government Employees, Local 3158, AFL-CIO, the employees' exclusive
 representative, regarding the termination of a unit employee contrary to
 the requirements of section 7121 of the Statute, after receiving timely
 notice of the exclusive representative's desire to invoke arbitration.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, proceed to arbitration regarding the grievance
 filed by the Council of Locals No. 213, American Federation of
 Government Employees, AFL-CIO and American Federation of Government
 Employees, Local 3158, AFL-CIO, involving the termination of a unit
 employee.
 
    (b) Post at its Columbus, Ohio facility, copies of the attached
 Notice, on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms they shall be signed by the
 Commanding Officer, Department of the Army, 83rd United States Army
 Command, Columbus, Ohio, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Notify the Regional Director of Region V, Federal Labor Relations
 Authority, in writing, within 30 days from the date of this Order, as to
 what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., January 19, 1983
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to proceed to arbitration regarding a grievance
 filed by the exclusive representative of a unit of our employees,
 Council of Locals No. 213, American Federation of Government Employees,
 AFL-CIO and American Federation of Government Employees, Local 3158,
 AFL-CIO, on September 3, 1980 concerning the termination of a unit
 employee, contrary to the requirements of section 7121 of the Federal
 Service Labor-Management Relations Statute, after receiving timely
 notice of the exclusive representative's desire to invoke arbitration.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, proceed to arbitration regarding the grievance
 filed by the Council of Locals No. 213, American Federation of
 Government Employees, AFL-CIO and American Federation of Government
 Employees, Local 3158, AFL-CIO, on September 3, 1980, involving the
 termination of a unit employee.
                                       (Agency or Activity)
 
 Dated:  . . . By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region V, Federal Labor Relations Authority, whose
 address is:  Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois
 60604, and whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ While the Respondent offered to pay the costs of the bifurcated
 arbitration process if the arbitrator were to find in the first hearing
 that the grievance was arbitrable, the Authority concludes that the
 Respondent was not thereby relieved of its statutory obligation to
 proceed to arbitration when the Union rejected the Respondent's offer as
 inconsistent with the parties' agreement and the arbitrator thereafter
 determined that the arbitrability issue and the merits of the grievance
 would be decided in one hearing.  Respondent was obligated to proceed to
 arbitration, and if it was dissatisfied with the award it could have
 filed exceptions thereto pursuant to section 7122 of the Statute.
 
 
    /2/ In view of this conclusion, it is not necessary to consider
 whether the Respondent's conduct also constituted a violation of section
 7116(a)(5).