U.S. Federal Labor Relations Authority

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15:0974(181)AR - HQ, Fort Sam Houston, Army and Local 2154, AFGE -- 1984 FLRAdec AR

[ v15 p974 ]
The decision of the Authority follows:

 15 FLRA No. 181
                                            Case No. O-AR-261
    This matter is before the Authority on exceptions to the award of
 Arbitrator Don J. Harr filed by the Union under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.  The Agency filed an opposition.  /1/
    The issues submitted to the Arbitrator in this case questioned
 whether management's grievance was timely filed and whether the Union
 had complied with the terms of the parties' collective bargaining
 agreement regarding the appointment and number of union stewards.  The
 Arbitrator first determined that the grievance was timely filed.  On the
 merits the Arbitrator as his award sustained the grievance essentially
 finding that the Union had not complied with the terms of the agreement.
    In its first exception the Union essentially contends that the award
 is deficient because, contrary to the Arbitrator's determination, the
 grievance was not timely filed.  The Union's exception, however,
 constitutes nothing more than disagreement with the Arbitrator's
 determination with respect to the procedural arbitrability of the
 grievance, and it is well established that such disagreement provides no
 basis for finding the award deficient.  E.g., Department of the Army,
 Fort Drum, New York and National Association of Government Employees,
 Local R2-61, 10 FLRA 22 (1982).
    In its other exceptions the Union essentially contends that the
 Arbitrator's finding that it failed to comply with the terms of the
 agreement in dispute is contrary to the Statute.  Primarily, the Union
 maintains that the parties' collective bargaining agreement had expired
 before the grievance in this case and that under the Statute the Union
 consequently was not longer bound by the provisions of the agreement
 relating to the appointment and number of stewards.
    The Authority concludes that the Union's exceptions provide no basis
 for finding the award deficient.  In Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington and Federal Aviation
 Administration, Washington, D.C., 14 FLRA No. 89 (1984), the Authority
 expressly held that following the expiration of a collective bargaining
 agreement, either party to that agreement may elect not to be bound by a
 practice embodied in any contract provision which relates to a matter
 that is outside the required scope of bargaining under the Statute,
 i.e., is a permissive subject of bargaining.  Id. at 5.  In this respect
 the Authority further has uniformly held that bargaining over a union's
 designation of its own representatives when dealing with agency
 management in the performance of its responsibilities under the Statute
 is permissive in nature and outside the required scope of bargaining but
 that a union may elect to agree to a contract provision as to such
 designations.  E.g., Department of Transportation, Federal Aviation
 Administration, San Diego, California, 15 FLRA No. 86 (1984).  Thus, in
 terms of this case, the Union following the expiration of the agreement
 retained the right under the Statute to terminate the practice of
 steward designation embodied in the contract provision of the parties'
 agreement.  However, in this regard the Arbitrator specifically stated
 that although the agreement had expired, the agreement "has been
 recognized by the parties as remaining in full force and effect pending
 renegotiation." Consequently, with the Arbitrator finding no election by
 the Union not to be bound by the steward designation practice, it has
 not been established that the award sustaining the grievance that the
 Union failed to comply with the terms of the agreement is in any manner
 contrary to the Statute.
    Accordingly, the Union's exceptions are denied.
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In its opposition, the Agency also alleges that the Union's
 exceptions should be dismissed because of the Union's failure to comply
 with various procedural requirements of the Authority's Rules and
 Regulations.  However, the Authority finds no basis for dismissing the
 exceptions as procedurally deficient.