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20:0797(96)AR - Office of Hearings and Appeals, SSA, HHS and Local 3615, AFGE -- 1985 FLRAdec AR

[ v20 p797 ]
The decision of the Authority follows:

 20 FLRA No. 96
                                            Case No. 0-AR-940
    This matter is before the Authority on exceptions to the award of
 Arbitrator Joseph M. Sharnoff filed by the Activity under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
    The dispute before the Arbitrator in this case arose when the
 activity refused to process the request of a Supervisory Legal Clerk to
 have union dues withheld from her pay on the ground that as a supervisor
 she was excluded from the bargaining unit and therefore not eligible for
 dues checkoff.  At the same time, the Activity also notified the Union
 that the individual could not be represented by the Union in a
 disciplinary action because such representation would constitute a
 conflict of interest with her supervisory position.  The Union filed a
 grievance claiming that at and after the time the individual submitted
 her request for payroll deduction of union dues and sought to have the
 Union represent her in the disciplinary action, she was no longer a
 supervisor and was in the bargaining unit because she had been
 reassigned from her regular supervisory duties and was performing
 certain "unclassified" duties which did not involve the exercise of any
 supervisory authority.  The parties disagreed as to the nature and scope
 of the issues to be decided by the Arbitrator.  The Union sought
 resolution of the questions as to whether employees performing
 "unclassified" nonsupervisory duties are eligible for payroll deduction
 of union dues and whether the Activity violated the parties' collective
 bargaining agreement by its actions.  The Union also sought, among other
 things, payment of dues the Activity had refused to deduct and attorney
 fees.  The Activity argued that the only issue was whether the
 individual was entitled to payroll deduction of union dues at the time
 she submitted her request.  In that regard, the Activity continued to
 maintain before the Arbitrator that at all times relevant to the dispute
 individual performed some supervisory duties and was a supervisor within
 the meaning of the Statute.  The Activity further argued, among other
 things, that the individual was a confidential employee under the
 Statute and therefore was also excluded from the bargaining unit on that
    The Arbitrator concluded that he was not persuaded by the Union's
 argument that all supervisory employees performing "unclassified"
 nonsupervisory duties are entitled to payroll deduction of union dues,
 finding that the proper test for determining an employee's status as a
 supervisor or confidential employee is the nature of all of the duties
 performed and that each such case must be resolved based on the
 particular circumstances involved.  As to the instant case, the
 Arbitrator found that as of the date the individual submitted her dues
 withholding request her duties did not include any that were supervisory
 or confidential in nature and that the Activity intended that she would
 not be performing such duties in the future.  The Arbitrator concluded
 that the Activity therefore did not have a valid basis for denying the
 individual's application for dues withholding or for denying her right
 to union representation.  The Arbitrator therefore sustained the
 grievance to that extent.  The Arbitrator declined to direct the
 Activity to pay the Union the dues assertedly "lost" because of the
 Activity's refusal to honor the individual's dues withholding
 application essentially finding that such a remedy was not warranted
 because the Activity did not prevent the individual from joining the
 Union and directly paying her dues.  As a remedy, the Arbitrator
 directed that the Union be permitted to represent the individual in
 certain matters which might have remained unresolved.
    In its exceptions, the Activity contends that the Arbitrator's award
 is contrary to section 7105(a)(2) of the Statute.  The Authority agrees.
    Under section 7105(a)(2)(A), the Authority is empowered to determine
 the appropriateness of a unit of employees for representation by a labor
 organization under section 7112 of the Statute.  An appropriate unit as
 defined by section 2421.14 of the Authority's Rules and Regulations is a
 grouping of employees that has been found to be appropriate for purposes
 of exclusive representation and for allotment of dues to
 representatives.  Appropriate unit determinations may include the
 resolution of factual disagreements between agencies and unions as to
 whether certain employees are included in or excluded from a certified
 bargaining unit.  The means provided for securing the resolution of such
 a dispute is the filing of a clarification of unit petition with the
 Authority under Section 2422.2(c) of the Authority's Rules and
 Regulations.  Congressional Research Employees Association and the
 Library of Congress, 3 FLRA 737, 739 (1980).  Thus, under the Statute
 and the Authority's Regulations, questions concerning the bargaining
 unit status of employees are exclusively reserved for final resolution
 by the Authority.  In this regard, the Authority has expressly held that
 negotiated grievance procedures and arbitration may not be used in place
 of a clarification of unit petition and may not be used to challenge or
 dispute a decision of the Authority clarifying a bargaining unit.
 National Archives and records Service, General Services Administration
 and Local 2578, American Federation of Government Employees, AFL-CIO, 9
 FLRA 381, 383 (1982).  In the NARS case, the Authority determined that
 an arbitrator is not prohibited from addressing an unresolved question
 of a grievant's bargaining unit status when it is raised as a collateral
 issue to a grievance otherwise properly brought under the negotiated
 grievance procedure of a collective bargaining agreement.  Thus, an
 arbitrator properly may make a factual determination regarding the
 bargaining unit status of a grievant in the course of deciding whether
 the arbitrator has jurisdiction to resolve the grievance under the
 negotiated grievance procedure.
    In terms of this case, the bargaining unit status of the individual
 involved was not a collateral question but, rather, was the essential
 issue in the grievance.  Thus, the dispute as to whether the individual
 was entitled to union dues withholding and to union representation in
 essence constituted a question as to whether the individual was in or
 out of the bargaining unit represented by the Union.  In these
 circumstances, the Arbitrator was not empowered to decide the question.
 Rather, under section 7105(a)(2)(A) of the Statute, the question was
 exclusively reserved for resolution by the Authority.  Consequently, the
 Arbitrator's award is contrary to section 7105(a)(2)(A) of the Statute.
    Accordingly, the award is set aside.
    Issued, Washington, D.C., December 4, 1985.
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY