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24:0875(83)CA - Air Force, HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA

[ v24 p875 ]
The decision of the Authority follows:

 24 FLRA No. 83
 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.  /*/
    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
    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
                           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.
    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
          "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.
          "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.
    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
          "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.
    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
    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:
    The Complaint in Case No. 5-CA-60110 be, and the same is hereby,
                                       /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)."