[ v24 p875 ]
The decision of the Authority follows:
24 FLRA No. 83 DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO Charging Party Case No. 5-CA-60110 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a supporting brief. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (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, the exceptions to that Decision, and the entire record, the Authority hereby adopts the Judge's findings, conclusions, and recommended Order that the complaint be dismissed. /*/ ORDER The complaint in Case No. 5-CA-60110 is dismissed. Issued, Washington, D.C., December 29, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 5-CA-60110 DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO Charging Party Major Steven E. Sherwood For the Respondent Mr. Paul Palacio Ms. Julia A. Collier For the Charging Party Judith A. Ramey, Esquire For the General Counsel Before: William B. Devaney Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq., /1/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether Respondent committed an unfair labor practice, in violation of Sections 16(a)(1) and (5) of the Statute, by filing a grievance. At the conclusion of the General Counsel's case, I stated that I intended to grant Respondent's motion to dismiss; but, since a written decision was required, General Counsel and the Charging Party were afforded the opportunity to submit briefs, which would be carefully considered; but unless persuaded that my conclusion was incorrect my decision would be that Respondent's motion to dismiss was granted. General Counsel has filed a brief opposing the granting of Respondent's motion to dismiss, timely mailed on April 15, 1986, and received on April 21, 1986, and Respondent has filed a brief in support of its motion to dismiss, timely mailed on April 14, 1986, and received on April 18, 1986, which have been carefully considered. This case was initiated by a charge filed on January 27, 1986 (G.C. Exh. 1(a)), which alleged violation of Sections 16(a)(1) and (8) of the Statute; and a First Amended Charge, filed on February 26, 1986 (G.C. Exh. 1(c)), which alleged violation of Sections 16(a)(1) and (5) of the Statute. The Complaint and Notice of Hearing (G.C. Exh. 1(e)) issued on February 28, 1986, and fixed the date of hearing as April 2, 1986, pursuant to which a hearing was duly held in Dayton, Ohio, on April 2, 1986, before the undersigned. Findings 1. American Federation of Government Employees, Council 214, AFL-CIO (hereinafter referred to as Council 214) represents a consolidated unit of about 75,000 civilian employees of Respondent at eight separate locations across the country. One of these locations is the Sacramento Air Logistics Center at McClellan Air Force Base, California. A local Union at McClellan, Local 1875 (hereinafter referred to as "Local 1875"), represents McClellan employees as agent of Council 214. Similarly, Local Unions represent bargaining unit employees at the other seven of Respondent's facilities. The parties are governed by a Master Labor Agreement (MLA; Jt. Exh. 1) and, at McClellan also by a local supplement (Jt. Exh. 2). 2. Council 214 had attempted, prior to December, 1983, to negotiate an agreement with Respondent whereby multiple grievances under the MLA could be combined for arbitration. Respondent had objected to such a procedure and had refused to agree to any provision specifically permitting the combining of grievances for arbitration. 3. On July 11, October 16 and November 18, 1984, a hearing was held before Arbitrator M. K. Warns who issued her decision and award on January 10, 1985 (erroneously dated "January 10, 1984") (Jt. Exh. 6). Arbitrator Warns in her decision first stated, in relevant part: ". . . By mutual agreement, the parties submitted two issues to this Arbitrator. "Procedural Issue: The Union formulates the procedural issue as follows: 'Can the Union present a grievance which contains two issues both of which relate to official time in a single arbitration hearing? "The Employer states the issue as a matter of the 'permissibility of joining two or more separate incidents into one arbitration proceeding, regardless of whether those incidents are labeled as separate issues under one grievance, or as separate grievances.'" (Jt. Exh. 6, p. 2). Thereafter, Arbitrator Warns stated, "The Arbitrator determines the issues before her to be: "1. Whether or not it is a violation of the MLA or past practice between the parties for multiple grievances, multiple incidents, or multiple issues to be presented in one hearing to one arbitrator? "2. Whether or not the MLA was violated, specifically Section 4.06(2) and (19), when the Employer failed to grant official time to Union representatives for the preparation of post hearing briefs in arbitration? If so, what should the remedy be? (Jt. Exh. 6, p. 2). 4. In her decision, the Arbitrator noted, inter alia that: "The Union argues that they are not attempting to join unrelated issues since the letter of December 2, 1983, filed an institutional grievance over the broad issue of the interpretation of the official time provisions for union representatives. The incidents named in the grievance represent two situations involving the same contractual issue, that of use of official time. By definition, grievances filed at the command level would involve occurrences at more than one activity. . . . " (Jt. Exh. 6, p. 4) . . . "There have been according to the testimony only three arbitrations at the command level. Three occurrences are hardly sufficient to support a conclusion of a past practice. . . . " (Jt. Exh. 6, p. 5) . . . "In summary: "1. There is no express language in the MLA prohibiting or limiting the number of grievances, incidents, or issues which can be presented to a single arbitrator in one hearing. "2. There has been no mutually agreed upon, consistent past practice which would lead to an interpretation that joinder is not permissible. "3. The parties discussed joinder during negotiations and no specific language was forthcoming in the MLA limiting joinder either as to grievances, or issues. "4. The language of Section 7.06 as indicated supra supports an interpretation that more than one issue may be heard by one arbitrator at a single hearing. "5. Testimony by Management establishes that more than one grievance may be heard at one hearing by one arbitrator. "6. The inevitable conclusion, consistent with arbitral precedent generally, the language of the MLA, and the evidence and testimony before me, is that more than one grievance, incident, or issue may be heard by one arbitrator at a single hearing. "AWARD "The first issue is resolved in favor of the Union, to wit, that multiple issues and multiple grievances in any combination may be presented to one arbitrator in a single hearing. "It is not a violation of the MLA or past practice for multiple grievances, or multiple issues, in any combination to be presented to a single arbitrator at a single hearing." (Jt. Exh. 6, pp. 7-8). 5. On December 23, 1985, McClellan AFB filed an employer grievance at the activity level, pursuant to MLA Article 6.08 (Jt. Exh. 7). The employer grievance stated, in part, as follows: "1. . . . The subject of this grievance is the unilateral action of AFGE Local 1857 in combining separate grievances for arbitration. Further, these actions were done not only without agreement by management to do so, but against management's objection. "2. We contend that neither the Union nor Management has the authority to unilaterally combine cases for arbitration. There is no such authority granted by the MLA. However, there is a well established past practice at McClellan Air Force Base prior to the current MLA and since the current MLA became effective that either party may request the other to allow combining of cases under the particular circumstances of the particular cases as independently and individually determined by the parties to be in their best interest. . . . " (Jt. Exh. 7, p. 1). 6. Mr. John V. Salas, President of Local 1857, denied the grievance by letter dated March 7, 1986 (Jt. Exh. 8). The charge was filed on January 27, 1986; the First Amended charge filed on February 26, 1986; and the Complaint issued on February 28, 1986, all prior to Mr. Salas' response to grievance. Conclusions Executive Order 11491 provided that, "(a) An agreement between an agency and a labor organization shall provide a procedure . . . for the consideration of grievances. . . . " (E.O. 11491, Sec. 13(a)) "(b) A negotiated procedure may provide for the arbitration of grievances. . . . " (E.O. 11491, Sec. 13(b)) The Statute made the direction more explicit: "7121. Grievance procedures. "(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsection (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage. . . . "(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall -- . . . "(3) include procedures that -- . . . "(C) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency." (5 U.S.C. Section 7121(a) and (b)). Under both the Executive Order and the Statute extreme care has been taken to insure and protect the right to file and process grievances. It is altogether extraordinary to suggest that utilization of the very right conferred by Congress, namely to use the negotiated grievance procedure which Congress has specifically mandated, " . . . shall be the exclusive procedure for resolving grievances which fall within its coverage," constitutes an unfair labor practice. Conceivably, a course of conduct might become so egregious that further resort to the grievance procedure over the same issue might be improper, a question I specifically do not decide; but assuredly not on the basis of a single prior arbitrator's decision especially not on the basis of an arbitration decision which neither decided, nor purported to decide, the right to combine grievances for arbitration at an activity level. To the contrary, the grievance before Arbitrator Warns was a command level grievance and she stated that there had been "only three arbitrations at the command level. Three occurances are hardly sufficient to support a conclusion of a past practice," and she then relied heavily on her finding that "There has been no . . . consistent past practice which would lead to an interpretation that joinder is not permissible" for her decision. But more basic, arbitrators are not bound by stare decisis. An arbitrator may follow arbitral precedent but is under no compunction to do so and examples are legion where arbitrators have departed from arbitral precedent involving the same issues. Certainly, Respondent has every right to engage in elucidative litigation, at the least at the activity level, to test the parameters of consolidation of grievances for arbitration. The decision of Arbitrator Warns created no duty to bargain, but her award constituted, merely, the resolution of the grievance before her. Indeed, Article 7, Section 7.06a of the MLR specifically provides that, "The arbitrator's authority is limited to deciding only the issue or issues considered in the formal grievance. . . . " (Jt. Exh. 1, Article 7, Section 7.06a.) Nor did the parties engage, or seek to engage, in collective bargaining on the issue of consolidation of grievances for arbitration following Arbitrator Warns decision. Consequently, I find General Counsel's assertions concerning good faith bargaining wholly immaterial. Accordingly, as General Counsel failed to establish even a prima facie showing of a violation, Respondent's Motion to Dismiss is granted and it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 5-CA-60110 be, and the same is hereby, dismissed. /s/ William B. Devaney Administrative Law Judge Dated: May 5, 1986, Washington, D.C. --------------- FOOTNOTES$ --------------- (*) While we agree with the Judge that, under the circumstances, utilization of the grievance procedure does not constitute an unfair labor practice, we also note that we specifically do not decide whether a course of conduct might become so egregious that further resort to the grievance procedure over the same issue might be improper. (1) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as "Section 16(a)(5)."