[ v39 p966 ]
The decision of the Authority follows:
39 FLRA No. 81
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
LANGLEY AIR FORCE BASE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R4-26 and LOCAL R4-106
DECISION AND ORDER
February 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to comply with the provisions of section 7121 of the Statute by virtue of its refusal to proceed to arbitration concerning a grievance. For the reasons stated below, we find that the Respondent committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees employed by the Respondent. On or about March 29, 1989, the Union requested that the grievance of an employee be forwarded to arbitration pursuant to the grievance and arbitration procedures set forth in article XXXI of the parties' collective bargaining agreement.(1)
Since on or about April 12, 1989 and continuing to date, the Respondent has refused to proceed to arbitration on the grievance.
III. Positions of the Parties
The Respondent argues that its refusal to proceed to arbitration is not violative of the Statute because the grievance concerns the grievant's separation, a matter specifically excluded from the parties' negotiated grievance procedure. The Respondent states that the "fundamental issue in this case . . . [is] whether clear contract provisions will be recognized or ignored." Respondent's brief at 5. The Respondent asserts that "[t]he collective bargaining process is undermined, and human and financial resources wasted, when clear contract provisions are ignored, and matters are sent to arbitration that were specifically excluded from the grievance process[.]" Id. The Respondent acknowledges established Authority precedent which holds that a refusal to proceed to arbitration, including a refusal based upon an assertion of nonarbitrability, violates the Statute. However, the Respondent argues that this case is distinguishable because here, where a matter is specifically excluded from the scope of the grievance procedure, "there is no 'question' of arbitrability and therefore, no requirement (or purpose) for going to arbitration." Id. at 3. Finally, the Respondent maintains that, in any event, because it "has acted in accordance with its reasonable interpretation of the contract language[,]" under Authority precedent its refusal to proceed to arbitration cannot be found to be a violation of section 7116(a)(1) and (8) of the Statute. Id. at 4.
The General Counsel argues that the Respondent's refusal to proceed to arbitration in this matter constitutes a clear failure to abide by section 7121 and is, therefore, a violation of section 7116(a)(1) and (8) of the Statute.(2)
The General Counsel notes that although the grievance concerns an employee's separation and the parties' collective bargaining agreement excludes separation actions from the scope of the grievance and arbitration procedures, the same agreement also provides that unresolved questions concerning whether a grievance is on a matter subject to the grievance procedure will be referred to arbitration. The General Counsel contends that the arbitrability of this particular grievance has not been resolved as contemplated in the parties' agreement and the issue should, therefore, be properly raised before an arbitrator. The General Counsel maintains that the Authority should apply its well-established precedent and find that the Respondent's refusal to proceed to arbitration on the grievance, including the question of its arbitrability, constitutes a failure to comply with section 7121 of the Statute and is therefore a violation of the Statute.
IV. Analysis and Conclusions
It is long established that section 7121 of the Statute mandates that each collective bargaining agreement shall provide for the settlement of grievances, including questions of arbitrability, and unless the parties, consistent with law, mutually agree otherwise, such procedures must be read as providing that all questions of arbitrability not otherwise resolved shall be submitted to arbitration. See Interpretation and Guidance, 2 FLRA 273, 278-79 n.7 (1979). Further, a refusal by one party to an agreement to participate in the procedures for the resolution of grievances, including questions of arbitrability, conflicts with the requirements of section 7121. Health Care Financing Administration, 22 FLRA 437, 439 (1986); Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316, 321 (1982). Such a refusal may not be justified by a party's contention, however arguable or reasonable, that the parties intended the subject matter of the grievance to be excluded from the coverage of the negotiated grievance and arbitration procedures. See Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA 456 (1983).
Accordingly, we conclude that the Respondent's refusal to proceed to arbitration constituted a failure to comply with the requirements of section 7121 of the Statute, in violation of section 7116(a)(1) and (8).
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Air Force, Langley Air Force Base, Hampton, Va. shall:
1. Cease and desist from:
(a) Unilaterally refusing or failing to proceed to arbitration concerning the grievance of Doris E. Lewis, after receiving timely notice from the National Association of Government Employees, Local R4-26 and Local R4-106, the employees' exclusive representative of its desire to invoke arbitration.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request of the National Association of Government Employees, Local R4-26 and Local R4-106, proceed to arbitration regarding the grievance of Doris E. Lewis.
(b) Post at Langley Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, Langley Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally refuse or fail to proceed to arbitration concerning the grievance of Doris E. Lewis after receiving timely notice from the National Association of Government Employees, Local R4-26 and Local R4-106, the employees' exclusive representative, of its desire to invoke arbitration.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.
WE WILL, upon request of the National Association of Government Employees, Local R4-26 and Local R4-106, proceed to arbitration concerning the grievance of Doris E. Lewis.
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
GRIEVANCE AND ARBITRATION PROCEDURES
Section 1. Coverage. This article provides the exclusive procedure available to [t]he parties to this agreement and to employees of the unit for consideration of grievances and questions of arbitrability. A grievance is defined to be any dispute between the Employer and the Union or an employee or employees covered by this agreement, which may pertain to any matter of personal dissatisfaction or concern to the employee over which management has control or any matter involving the interpretation or application of (1) this agreement or (2) published agency policies and regulations which concern (a) personnel policies and practices and (b) matter affecting working conditions, whether or not specifically covered by this agreement.
. . .
This procedure does not cover the following:
. . .
(11) Separation actions of any kind.
. . .
Questions concerning whether or not a grievance is on a matter subject to this grievance procedure which cannot be resolved will be referred for arbitration.
Questions involving interpretation of provisions of law or regulations of appropriate authorities outside the Air Force will not be subject to this procedure regardless of whether such policies, laws or regulations are quoted, cited, or otherwise incorporated or referenced in the agreement. Interpretations may be requested by the Union to the appropriate issuing authority with an information copy to the Employer.
. . .
Grievances shall receive fair and timely consideration and shall be handled without prejudice or discrimination. The parties agree to cooperate to resolve grievances informally at the earliest possible time and the lowest possible level.
(If blank, the decision does not have footnotes.)
1. The pertinent provisions of Article XXXI are set forth in the Appendix to this decision.
2. Section 7121 of the Statute provides, in pertinent part:
(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 subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage.
(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.
(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 involved by either the exclusive representative or the agency.