33:0420(57)AR - - Army and Air Force Exchange Service and AFGE Local 2965 - - 1988 FLRAdec AR - - v33 p420

[ v33 p420 ]
The decision of the Authority follows:

33 FLRA No. 57


Washington, D.C.




LOCAL NO. 2965



October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Preston J. Moore filed by the American Federation of Government Employees, AFL-CIO (AFGE) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. AFGE is the exclusive representative of a consolidated bargaining unit of employees of the Army and Air Force Exchange Service (the Agency). The Agency did not file an opposition to AFGE's exceptions.

The Agency filed a grievance which alleged that the local agreement between the Army and Air Force Exchange Service, Fort Worth General Merchandise Distribution Activity (the Activity) and AFGE Local No. 2965 (the Union) was violated when "the International Representative of the Union" contacted the Commander of the Agency concerning another grievance. Arbitrator's Award at 2. The local agreement directs the parties to make every effort to settle grievances at the lowest possible supervisory level. The Arbitrator sustained the Agency's grievance and directed the Union to comply with the agreement provision. AFGE contends that the Arbitrator erred because he applied the local agreement rather than the Master Agreement.

We find that there is insufficient information in the record for us to rule on the exceptions and to determine whether the Arbitrator erred in finding the local agreement to be controlling. Accordingly, we will remand the case to the parties for further processing consistent with this decision.

II. Background and Arbitrator's Award

The Agency employs 72,000 employees worldwide. The Union is the local representative of a bargaining unit of employees located at the Activity.

In June 1980, the Activity and the Union negotiated a local agreement. In 1981, AFGE was certified as the exclusive representative of a consolidated bargaining unit of the Agency's employees. On April 22, 1987, the Agency and AFGE entered into a Master Agreement.

On March 31, 1987, "the International Representative of the Union" sent a telegram to the Agency's Assistant General Counsel, Labor Relations Law Branch. Arbitrator's Award at 2. The telegram requested a meeting with management at 10:00 a.m. on April 3, 1987, to select an arbitrator for a pending grievance. On April 3, the International Representative "placed a telephone call to the [Agency Commander] in an attempt to complain about Management's absence at what he alleged to be a mutually arranged meeting to select an arbitrator." Arbitrator's Award at 2.

The Agency then filed a grievance alleging that the International Representative's contact with the Commander violated Article XXXII (Grievance Procedure), Sections 3 and 6 of the parties' local agreement. Those sections state:

Article XXXII - Grievance Procedure

Section 3. This negotiated procedure shall be the exclusive procedure available to the Union and the employees in the bargaining unit for resolving such grievances except as provided in Section 2.(d) of this Article. When an employee advises a management official or supervisor that he has a grievance, he will be afforded the opportunity within a reasonable time and without undue delay to have a Union representative and present the grievance.

Section 6. Most grievances arise from misunderstandings or disputes which can be settled promptly and satisfactorily on an informal basis at the immediate supervisory level. The Employer and the Union agree that every effort will be made by management and the aggrieved party(s) to settle grievances at the lowest possible level.

The grievance was submitted to arbitration. The Arbitrator framed the issue as whether "the Union violate[d] Article XXXII, Section 3 and/or 6, [of the] Collective Bargaining Agreement by circumventing the negotiated grievance procedure? If so, what is the proper remedy?" Arbitrator's Award at 1.

The Agency contended before the Arbitrator that the Activity's mailroom did not receive the Union telegram until 10:52 a.m. on April 3 and, therefore, management was not apprised of any request for a meeting. Additionally, the Agency contended that there was no agreement to meet on April 3. According to the Agency, the International Representative simply made a request for a meeting on that date. The Agency alleged that the International Representative should have attempted to resolve the matter at the lowest possible level instead of making a call to the Agency Commander.

The Union contended that "the matter involved herein is not involved in the grievance procedure, and the Union's right to call the Commander . . . is not restricted by the Agreement." Arbitrator's Award at 3.

The Arbitrator sustained the Agency's grievance. He found that the local agreement was still in effect, and that it "is controlling in the instant case." Arbitrator's Award at 2. The Arbitrator ruled that the right of the Union to call the Agency Commander "is not impaired by the Agreement except under Section 6 and the limitations placed thereunder." Arbitrator's Award at 3-4. The Arbitrator determined that the evidence in this case indicated that the International Representative telephoned the Agency Commander in an attempt to settle a grievance, and th