41:0018(2)CO - - AFGE Local 1909, Fort Jackson, SC and Army and Air Force Exchange Service, Dallas, TX - - 1991 FLRAdec CO - - v41 p18
[ v41 p18 ]
The decision of the Authority follows:
41 FLRA No. 2
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The Judge found that the Respondent, American Federation of Government Employees, AFL-CIO, Local 1909, had not violated section 7116(b)(5) of Federal Service Labor-Management Relations Statute (the Statute), and recommended that the complaint be dismissed. He based his recommendation on the finding that in the particular circumstances of this case, the Respondent's failure to pay its share of an arbitrator's fee was not a repudiation of the parties' collective bargaining agreement. The Charging Party filed exceptions to the Judge's decision, and the Respondent filed an opposition to the exceptions. The General Counsel did not except to the Judge's decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order.
II. Charging Party's Exceptions
The Charging Party excepts to the Judge's conclusion that the failure of the Respondent to pay its share of the arbitrator's fee was not a repudiation of the collective bargaining agreement. It also raises, for the first time, the argument that the American Federation of Government Employees, AFL-CIO (AFGE), the exclusive representative of a worldwide consolidated unit of the Charging Party's employees, is responsible for the obligation incurred by the Respondent, AFGE Local 1909, which, according to the Charging Party, has no existence independent of AFGE. Based on this argument, the Charging Party requests that the case be remanded to the Judge for a determination of whether AFGE was able to pay the arbitrator's fee at issue herein.
We adopt the Judge's conclusion that in the circumstances of this case, the Respondent's failure to pay its share of the arbitrator's fee was not a repudiation of the agreement, and therefore was not a refusal to bargain in violation of section 7116(b)(5) of the Statute. We agree with the Judge's conclusion that "there is no evidence that [Local 1909] has rejected [its obligation to pay its share under the collective bargaining agreement] and intends not to pay. Rather the record evidence establishes that the failure to pay the arbitrator was due to lack of funds." Judge's Decision at 7.
It is uncontroverted that the Respondent, which had a bank balance of $42.32, had secured a promise from the grievant in advance of the proceeding to pay the costs; as a result of the failure by this grievant to honor that commitment, the Respondent now obtains payment for anticipated costs in advance of arbitration proceedings from affected employees. Further demonstrating that the Respondent did not repudiate the collective bargaining agreement, it attempted to make partial payment and to work out a payment schedule, offers that were refused by the Charging Party on behalf of the arbitrator.
We conclude that this case is different from Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA No. 106 (1991), in which an activity's refusal to assign a union's designated negotiator to the dayshift, admittedly a breach of the parties' ground rules agreement, was found to be tantamount to a repudiation of that agreement. In the circumstances of that case, the breach of the agreement went to the core of the contractual relationship, the designation of the union's representative and the ability of that representative to function. Here, on the other hand, the breach of the parties' agreement relates solely to the Respondent's failure to pay the fee of one arbitrator. At no time has the Respondent refused to participate in an arbitration proceeding. Further, in view of the Respondent's efforts to assure that the breach will not be repeated, there is no evidence that the Respondent's failure to pay on this occasion will have any effect on the viability of the negotiated grievance-arbitration procedure. Moreover, the attempts to work out payment to the arbitrator were efforts to ameliorate the problem that were totally rebuffed by the Charging Party.
In reaching our disposition, we note that the Charging Party's assertions that AFGE should be responsible for the arbitrator's fee, and that Local 1909 does not exist as a result of the consolidation of its units in 1981, are raised for the first time in these exceptions. The Authority will not consider a matter not raised below unless a question of jurisdiction is involved. Authority's Rules and Regulations, section 2429.5. See Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002 (1987). See also U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 35 FLRA 681, 684 (1990). Moreover, we find it significant that in addition to its failure to raise the argument below, the Charging Party also did not name AFGE as a respondent in the charge and never