[ v34 p860 ]
The decision of the Authority follows:
34 FLRA No. 143
FEDERAL LABOR RELATIONS AUTHORITY
U.S. ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
February 15, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Ralph Winkler. The Arbitrator found that the grievants were not members of the bargaining unit involved in the dispute and, therefore, were not entitled to official time for Union representational duties. The Arbitrator also found, however, that the grievants could continue to use official time to represent bargaining unit employees for 6 months.
The Agency filed an exception to the Arbitrator's award 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 to the Agency's exception.
For the reasons discussed below, we conclude that the award is contrary to section 7105(a)(2)(A) of the Statute and must be set aside.
II. Background and Arbitrator's Award
This case involves two grievants who sought official time to represent employees in a unit of nonappropriated fund (NAF) employees. The issue before the Arbitrator was whether the grievants were NAF bargaining unit members and, therefore, entitled to official time to represent NAF employees.
The Arbitrator found that an employee is within the NAF unit if the employee's salary is paid from nonappropriated funds. The Arbitrator found that the grievants were assigned to an appropriated fund operation and were paid from appropriated funds. Thus, the Arbitrator concluded that the grievants were not within the NAF bargaining unit and were not entitled to official time under the parties' agreement covering the NAF bargaining unit.
The Arbitrator also found that the grievants should be permitted to represent NAF employees on official time for 6 months. The Arbitrator stated that it was "equitable" to allow the Union 6 months to "restructure its operation to accomodate [sic] the changes required by the Agency's discontinuance of official time" for the grievants. Arbitrator's Award at 6-7.
III. Positions of the Parties
A. The Agency's Exception
The Agency asserts that the Arbitrator's decision to grant the grievants official time for 6 months is contrary to law. The Agency argues that section 7131(d) of the Statute "provides for official time for representational purposes only when the representative and the represented are in the same bargaining unit." Agency's Exception at 2. The Agency requests that the Authority delete the portion of the award which provides that the grievants may continue to represent NAF employees on official time for 6 months.
B. The Union's Opposition
The Union argues that the portion of the Arbitrator's award which grants the grievants official time for 6 months is reasonable because it permits the Union a reasonable period of time to arrange its internal affairs.
The Union also raises two procedural issues. First, the Union asserts that the Agency's exception was not filed by a designated representative or the Agency's representative at the hearing. Second, the Union asserts that the Agency failed to provide the Union's representative with a copy of its exceptions.
Subsequent to the filing of its opposition, the Union filed a supplement to its opposition, contending that the Arbitrator lacked authority to determine the grievants' unit status. The Union later withdrew the supplemental submission.
IV. Procedural Matters
We conclude that the Agency's exception properly is before us. The exception was filed by the Chief of the Labor and Employee Relations Division of the Department of the Army. Nothing in the record before us indicates that the exception was not authorized by the Agency. Further, nothing in our Regulations requires an exception to be filed by a party's representative at an arbitration hearing. A party is free to designate different representatives for different purposes.
Second, the certificate of service attached to the Agency's exception states that a copy of the exception was served on the Union's president. The Agency also should have served a copy of its exception on the Union's counsel. See 5 C.F.R. § 2429.27(a).
The Union's counsel acknowledges that he received a copy of the exception, albeit from the Union's president. In addition, the Union did not request an extension of time to file its opposition and, in fact, filed the opposition well within the applicable 30-day time limit. In these circumstances, we find that no prejudice resulted from the Agency's failure to serve the Union's counsel with its exception. Accordingly, we reject the Union's procedural objections to the Agency's exception.
V. Analysis and Conclusion
We find that the Arbitrator's award is contrary to the Statute and must be set aside for a reason other than that raised by the Agency. In this case, the issue concerned the grievants' entitlement under a collective bargaining agreement to official time to represent NAF unit employees. In order to resolve this issue, the Arbitrator was required to make a threshold determination concerning the grievants' bargaining unit status.
The Authority discussed an arbitrator's authority to make appropriate unit determinations in U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA). The Authority found that sections 7105(a)(2)(A) and 7112(a)(1) of the Statute provide that the Authority shall make appropriate unit determinations. The Authority determined that "[n]othing in the Statute or its legislative history indicates that appropriate unit determinations may be made through the negotiated grievance and arbitration procedures." Id. at 853. The Authority noted that disputes as to whether employees are included in a bargaining unit are resolved by filing a clarification of unit (CU) petition with the Authority under section 2422.2(c) of our Rules and Regulations. The Authority stated:
[A]n 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.
Id. at 854.
There is no indication in the record that the Agency raised a formal grievability question to the Arbitrator. The Agency clearly asserted, however, that the grievants were not entitled to official time because they were "not within the NAF contract unit[.]" Arbitrator's Award at 2. The Arbitrator resolved this issue and, as part of his award, held that the grievants "are not members of the NAF contract unit[.]" Id. at 7.
In these circumstances, we find no reason why the Authority's holding in SBA should not apply. There is nothing in this record to show that the Authority has resolved the question of the grievants' unit status. We find, therefore, that the Arbitrator was precluded from addressing the merits of the grievance in this case because the decision depended on resolution of an issue--the grievants' unit status--which is within the exclusive jurisdiction of the Authority under section 7105(a)(2)(A) of the Statute. Accordingly, the Arbitrator's award is contrary to section 7105(a)(2)(A) of the Statute.
We also find that there is no reason in this case to remand the dispute to the parties to enable them to hold the grievance in abeyance pending the filing of a clarification of unit petition. SBA was decided in August 1988. The arbitration hearing in this case took place in January 1989. It is reasonable to conclude that the parties were, or should have been, aware of the Authority's decision in SBA and their rights to file a CU petition and hold the grievance in abeyance pending resolution of the petition. Compare Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 335, 341-43 (1988) (the Authority remanded an arbitration award concerning a performance appraisal dispute to the parties, noting that the arbitrator issued his award before the Authority clarified the remedial authority of arbitrators in these disputes). There is no indication in the record of this case that either party sought to file a CU petition or to hold the grievance in abeyance.(*)
The Arbitrator concluded that the grievants' unit status "warrant[ed] the discontinuance of official time for [the grievants] as to NAF unit matters." Arbitrator's Award at 5. The Arbitrator awarded official time to the grievants to provide the Union with "time to restructure its operation to accomodate [sic] the changes required by the Agency's discontinuance of official time[.]" Id. at 6-7. It is clear that the Arbitrator's award of official time to the grievants is dependent on his finding regarding the bargaining unit status of the grievants. Accordingly, as the Arbitrator was not permitted to determine the grievants' unit status, the Arbitrator's award must be set aside in its entirety.
In view of our decision that the award is contrary to section 7105(a)(2)(A) of the Statute, we find it unnecessary to address the Agency's exception that the award is inconsistent with section 7131(d) of the Statute.
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)
*/ We note that CU petitions may be filed at any time and, accordingly, either party may now seek clarification of the grievants' unit status. See 5 C.F.R. § 2422.3(l).