[ v32 p847 ]
32:0847(125)AR
The decision of the Authority follows:
32 FLRA No. 125
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. SMALL BUSINESS ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532, AFL-CIO
Union
Case No. 0-AR-1489
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Jerome H. Ross. The grievant filed a grievance over (1) a letter of reprimand; (2) his annual performance rating; (3) a counseling referral letter; (4) alleged discrimination against him and harassment of him by the Agency; (5) denial of union representation by the Agency; and (6) the Agency's refusal to process his union dues allotment. For the purpose of resolving the grievance, the Arbitrator determined that the grievant was included in the bargaining unit. The Arbitrator sustained the grievance to the following extent:
(1) The letter of reprimand and the counseling referral letter shall be immediately removed from the grievant's official personnel file and other Agency records.
(2) The grievant's . . . [annual performance] rating for FY 1986 shall be changed to Fully Satisfactory.
(3) The grievant shall be immediately returned to check-off status.
(4) The Agency shall reimburse the Union for the lost dues of the grievant from November 1986 to November 1987.
The Agency filed exceptions to the portions of the award concerning the letter of reprimand and dues withholding under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(*) The Union filed an opposition.
This case presents an opportunity for us to reexamine the Authority's approach to the authority of arbitrators to determine whether employees are included in a certified bargaining unit. On reexamination, we conclude that under the Statute, an arbitrator is prohibited from addressing a question of a grievant's bargaining unit status. Consequently, we find that the Arbitrator was not empowered (1) to decide the question of the grievant's bargaining unit status; and (2) on the basis of that decision, to resolve the merits of the grievance. Accordingly, the award is deficient and must be set aside.
II. Background and Arbitrator's Award
The grievant filed a grievance over (1) a letter of reprimand; (2) his annual performance rating; (3) a counseling referral letter; (4) alleged discrimination against him and harassment of him by the Agency; (5) denial of union representation by the Agency; and (6) the Agency's refusal to process his union dues allotment. The grievance was not resolved and was submitted to arbitration.
The Agency claimed that the grievance was not grievable and arbitrable because the grievant was not included in the bargaining unit covered by the parties' master agreement. Although the Arbitrator stated that the certifications of the bargaining unit were ambiguous, he concluded that the Agency had recognized the grievant as included in the certified unit. For this reason and for the purpose of resolving the grievance, the Arbitrator determined that the grievant was included in the bargaining unit.
On the merits of the grievance, the Arbitrator sustained the grievance to the following extent:
(1) The letter of reprimand and the counseling referral letter shall be immediately removed from the grievant's official personnel file and other Agency records.
(2) The grievant's . . . [annual performance] rating for FY 1986 shall be changed to Fully Satisfactory.
(3) The grievant shall be immediately returned to check-off status.
(4) The Agency shall reimburse the Union for the lost dues of the grievant from November 1986 to November 1987.
III. Positions of the Parties
The Agency filed exceptions to the portions of the Arbitrator's award concerning the letter of reprimand and dues withholding.
With respect to the letter of reprimand, the Agency contends that the Arbitrator erred by finding that the grievant was not insubordinate. With respect to dues withholding, the Agency contends that the Arbitrator was not empowered to return the grievant to union dues withholding status and to direct the Agency to reimburse the Union for the grievant's dues which were not withheld during 1986 and 1987.
The Agency maintains that under section 7105(a)(2)(A) of the Statute, questions concerning the bargaining unit status of employees are within the exclusive jurisdiction of the Authority. The Agency maintains that an arbitrator may address a grievant's bargaining unit status only when the status is raised as a collateral issue in a grievance which is otherwise properly brought under the collective bargaining agreement. On the basis of the Authority's decision in Office of Hearings and Appeals, Social Security Administration, Department of Health and Human Services and Local 3615, American Federation of Government Employees, AFL-CIO, 20 FLRA 797 (1985) (Office of Hearings and Appeals), the Agency argues that the bargaining unit status of the grievant was not a collateral issue to--but rather was the essential issue of--the dispute over dues withholding. Therefore, the Agency claims that the Arbitrator was not empowered to decide the question of the grievant's bargaining unit status for purposes of his entitlement to dues withholding.
The Union contends that the Agency's exceptions constitute mere disagreement with the Arbitrator's reasoning and conclusions. The Union argues that unlike the situation in Office of Hearings and Appeals, the primary issue in this case was not the grievant's entitlement to dues withholding. The Union maintains that the issues of the grievant's bargaining unit status and entitlement to dues withholding were collateral to the grievant's challenge to the letter of reprimand, the counseling referral letter, and his performance rating. Therefore, the Union claims that the Arbitrator appropriately resolved the question of the grievant's bargaining unit status.
IV. Discussion
The exceptions in this case present the issue of the authority of arbitrators to address a question of a grievant's bargaining unit status.
A. Current Case Law
The Authority's decisions in National Archives and Records Service, General Services Administration and Local 2578, American Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982) (NARS), and Office of Hearings and Appeals, 20 FLRA 797, addressed the authority of arbitrators to resolve questions concerning the bargaining unit status of a grievant.
In NARS, the agency had refused to process a grievance over a performance appraisal on the ground that the grievant was a management official and, therefore, was excluded from the bargaining unit. The union filed a unit clarification petition with the Authority concerning the grievant's position and also invoked arbitration on the question of whether the grievance was grievable and arbitrable. The arbitrator ruled that the grievance was grievable and arbitrable.
The agency filed an exception to the arbitrator's award. The agency contended that the award was contrary to sections 7105(a)(2) and 7112(a)(1) of the Statute because the issue of whether the grievant was a management official was an issue of unit clarification which could be decided only by the Authority.
The Authority denied the agency's exception. The Authority stated that the responsibility for determining appropriate units under the Statute is the responsibility of the Authority. The Authority noted that this responsibility may include the resolution of factual disagreements between unions and agencies over whether certain employees are in a certified bargaining unit and that the specific means for securing such a resolution is through the filing of a clarification of unit (CU) petition under section 2422.2(c) of the Authority's Rules and Regulations. 9 FLRA at 382-83.
The Authority held that the Statute does not prohibit an arbitrator from resolving the question of a grievant's bargaining unit status when the question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement. The Authority stated that in such a situation, the arbitrator would be making only a factual determination regarding the grievant's bargaining unit status in the course of deciding whether there was jurisdiction to resolve the grievance. The Authority cautioned, however, that arbitration cannot be used in place of a clarification of unit petition. The Authority emphasized that under the Statute and the Authority's Rules and Regulations, decisions clarifying units are resolved exclusively by the Authority by means of the filing of a CU petition. Id. at 383.
In Office of Hearings and Appeals, the activity refused to withhold union dues from the pay of an individual and denied the individual union representation on the ground that the individual was a supervisor and, therefore, was excluded from the bargaining unit. The union filed a grievance that was submitted to arbitration. The union claimed that the individual was no longer a supervisor and was in the bargaining unit. The arbitrator found no valid basis for denying the individual dues withholding or union representation and sustained the grievance.
The activity filed an exception to the arbitrator's award contending that the award was contrary to section 7105(a)(2). The Authority agreed with the agency's contention. As in NARS, the Authority stated that under section 7105(a)(2)(A), it is empowered to determine the appropriateness of a unit of employees under section 7112 of the Statute. The Authority also noted that appropriate unit determinations may include the resolution of factual disagreements between agencies and unions over whether certain employees are included in a certified bargaining unit. The Authority reaffirmed that the means provided for resolving such disputes is the filing of a clarification of unit petition with the Authority under section 2422.2(c) of the Authority's Rules and Regulations. Consequently, the Authority held, as it had in NARS, that questions concerning the bargaining unit status of employees are reserved exclusively for resolution by the Authority and that arbitration may not be used in place of a clarification of unit petition. 20 FLRA at 798.
The Authority acknowledged its prior holding in NARS concerning the resolution of a question of unit status as a collateral issue. In Office of Hearings and Appeals, the Authority determined that the issue of bargaining unit status was not collateral, but was instead the essential issue of the grievance. Because the question of unit status was an essential issue, the Authority found that the resolution of the question was reserved exclusively to the Authority and that the arbitrator was not empowered to decide the question. Id. at 799.
B. Approach To Be Followed in This and Future Cases
For the reasons discussed below, we conclude that an arbitrator is not empowered to decide a question of a grievant's bargaining unit status even if that question is raised as a collateral issue in a grievance otherwise properly brought under the collective bargaining agreement. To this extent, we reverse our holding in NARS.
In both NARS and Office of Hearings and Appeals, the Authority held that under the Statute and the Authority's Rules and Regulations, questions concerning the bargaining unit status of employees are within the exclusive jurisdiction of the Authority. We reaffirm this holding. In our view, the wording and the framework of the Statute support our conclusion that the Authority--not arbitrators--must resolve questions concerning whether certain employees are included in a certified bargaining unit.
Section 7111 of the Statute sets forth the process by which labor organizations are certified as exclusive representatives of bargaining units. Under section 7111, a labor organization may not be certified as an exclusive representative unless the bargaining unit for which certification is sought is "appropriate." The statutory requirements applicable to determining whether a unit is appropriate are set forth in section 7112.
Section 7105(a)(2)(A) provides that the Authority "shall . . . determine the appropriateness of units for labor organization representation under section 7112 of [the Statute]." Section 7112(a)(1) provides that the "Authority shall determine the appropriateness of any unit." Nothing in the Statute or its legislative history indicates that appropriate unit determinations may be made through the negotiated grievance and arbitration procedure. By way of contrast, section 7116(d) of the Statute provides that with certain exceptions, issues involved in alleged unfair labor practices may "be raised under the grievance procedure or as an unfair labor practice[.]"
Appropriate unit determinations include the resolution of factual disputes between agencies and unions as to whether individual employees are included in a certified bargaining unit. Part 2422 of our Rules and Regulations sets forth the procedures for making these determinations. The means provided for resolving disputes as to whether employees are included in a bargaining unit is through the filing of a clarification of unit petition with the Authority under section 2422.2(c) of our Regulations.
Unlike unfair labor practices, there is no basis in the Statute on which to conclude that Congress intended appropriate unit issues to be raised under a grievance procedure. Therefore, in view of the clear statutory mandates in sections 7105 and 7112, we find that the Authority has exclusive jurisdiction to make appropriate unit determinations, including the resolution of questions concerning the bargaining unit status of individuals.
In NARS, the Authority held that an arbitrator may resolve a collateral issue concerning the bargaining unit status of a grievant in the course of deciding a grievance otherwise properly brought under the collective bargaining agreement. 9 FLRA 383. On reexamination, we find that this holding is not consistent with sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and part 2422 of our Rules and Regulations. Therefore, that holding will no longer be followed.
Consistent with our analysis, we find that an arbitrator does not have authority to make appropriate unit determinations. As a consequence, an arbitrator is precluded from addressing the merits of a grievance whenever a grievability question has been raised regarding the bargaining unit status of the grievant. When parties to a grievance are faced with such a grievability question, they can place the grievance in abeyance pending the filing of a clarification of unit petition.
In certain circumstances, an agency's allegation that a grievant is not included in the bargaining unit will not raise a question of bargaining unit status. There is no unit status question when the Authority has already determined that the grievant or the grievant's position is in the unit and when, in making the determination, the Authority rejected the basis on which the agency contests the grievability of the grievant's grievance. In these circumstances, there would be no question concerning the bargaining unit status of such a grievant. Therefore, in these circumstances, an arbitrator would not be prohibited on such a basis from resolving the grievance.
V. Conclusions
For the reasons discussed above, we conclude that the award is contrary to section 7105(a)(2)(A) of the Statute. The Arbitrator addressed a question of the bargaining unit status of the grievant. Under the Statute, the Arbitrator was prohibited from determining the bargaining unit status of the grievant and from resolving the grievance on the merits. Accordingly, we will set aside the award in its entirety.
VI. Decision
The Arbitrator's award is set aside.
Issued, Washington, D.C.,
___________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ The Agency requested a stay of the award when it filed its exceptions with the Authority on January 22, 1988. However, effective December 31, 1986, the Authority's Rules and Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards. 51 Fed. Reg. 45754. Accordingly, no action on the stay request was taken.