38:1509(120)AR - - Navy, Naval Base, North Island, San Diego, CA and International Association of Fire Fighters, Local F-33 - - 1991 FLRAdec AR - - v38 p1509

[ v38 p1509 ]
The decision of the Authority follows:

38 FLRA No. 120













January 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator John R. Taylor filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Agency did not file an opposition to the Union's exceptions.

The grievant applied for a supervisory fire protection inspector position but was not selected. A grievance was filed over the nonselection, alleging that the Agency violated the parties' collective bargaining agreement in filling the position. As his award, the Arbitrator concluded that the grievance was not arbitrable.

For the reasons stated below, we conclude that the Union's exceptions provide no basis for finding the award deficient and we deny the exceptions.

II. Background and Arbitrator's Award

The grievant applied, but was not selected, for a GS-081-8 Supervisory Fire Protection Inspector position. A grievance was filed claiming that the Agency had violated Article 26 of the parties' agreement in filling the position. The grievance was unresolved and was submitted to arbitration on the question of arbitrability.

The Agency contended before the Arbitrator that Article 1 (2) of the parties' agreement "specifically excluded [a supervisor] from being a member of the [collective bargaining] unit" and, therefore, "[s]ince this grievance involves the non-selection for a supervisory, non-unit position, it does not involve a condition of employment. Accordingly, a grievance regarding a non-selection for a non-unit position cannot be arbitrable under the provisions of the contract." Award at 4-5. The Agency also argued that the Union's claim that the Agency violated Article 26 of the agreement was without merit because Article 26 only involved positions in the bargaining unit and "since there has been no negotiated procedure regarding the selection of supervisors, . . . the negotiated grievance procedure cannot be used to challenge the selection of supervisors." Id. at 5.

The Union asserted before the Arbitrator that "since the issue was accepted by [the Agency] as a grievable item . . . [and proceeded] through the grievance procedure as outlined in the contract, the issue is therefore a proper issue for arbitration." Id. at 6. The Union further asserted that the question of grievability or arbitrability was untimely because it was not raised at any step of the grievance procedure. Finally, the Union argued that "past practice establishe[d] that the Agency has demonstrated that they accept the Union[']s right to represent [unit employees grieving nonselections to supervisory positions] . . . ." Id.

The Arbitrator first considered the Union's argument that a past practice "ha[d] been established wherein the Agency has accepted the Union's right to represent people who seek promotions to supervisory positions and have complaints" and concluded that "while the Union may have presented similar grievances to the Agency, none were arbitrated and thus no arbitral past practice has been established." Id. at 6-7. Next, the Arbitrator considered the Union's contention that the issue of arbitrability was untimely raised. He determined that the parties' agreement did not preclude the parties from raising the question of arbitrability for the first time at the arbitration stage of the grievance procedure.

Finally, the Arbitrator addressed the issue of arbitrability. He determined that the terms "employees" and "supervisors" were not used interchangeably in the parties' agreement and that the parties had not negotiated promotion procedures for nonunit positions. He noted that Authority precedent provides "that negotiated procedures for filling supervisory positions, while permissive, are matters outside the duty to bargain." Id. at 8 (emphasis in original). He stated that "[s]uch procedures concern non-bargaining unit positions and do not concern conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14) of [the Statute]. Further, in the [Authority's] view, procedures for challenging the selection of supervisors are integrally related to the procedures for filling supervisory positions." Id. at 8-9. The Arbitrator ruled that "since the Agency had no duty to [negotiate], and has not[ ] negotiated any provision concerning the supervisory selection process itself, I must conclude that the Agency also has no obligation to arbitrate grievances concerning such selections." Id. at 9. Accordingly, he found that the grievance was not arbitrable.

III. Union's Exceptions

The Union contends that the Arbitrator's finding that the grievance was not arbitrable "prevents any changes from being instituted or brought about to aid in the prevention of any or all controversy in the future selection process dealing with [the Agency]." Exceptions at 1. The Union takes issue with the Arbitrator's determination that the Agency was not precluded from raising the question of arbitrability for the first time before the Arbitrator. The Union asserts that "[t]he selection officials along with the Fire Dept. Chief, and Civil Personnel Department never once made any attempts to show or state that the position was not arbitrable. This issue was allowed to proceed, and go through the correct procedures never establishing the right of the labor unit or the Union not to arbitrate." Id. a