43:1266(102)AR - - Air Force, Carswell AFB, Texas and AFGE Local 1364 - - 1992 FLRAdec AR - - v43 p1266
[ v43 p1266 ]
The decision of the Authority follows:
43 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
CARSWELL AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 31, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator J. D. Dunn 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. The Agency filed an opposition to the Union's exceptions.
The grievance alleged that the Agency discriminated against three employees on the basis of race when the Agency gave performance awards to employees. The Arbitrator determined that he did not have jurisdiction over the grievance because the subject matter of the grievance was excluded from the coverage of the parties' grievance and arbitration procedure. We conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
Out of 18 employees in the Agency's Meat Market, 13 received cash awards for the appraisal period beginning February 1, 1989, and ending January 31, 1990. Three employees filed a grievance. The grievance was not resolved and was submitted to arbitration. The parties agreed to bifurcate the hearing before the Arbitrator and that the Arbitrator would first decide whether "the subject matter of the grievance [was] appropriate for arbitration[.]" Award at 7. If the Arbitrator found that the matter was arbitrable, he would then consider the merits of the grievance. The parties stipulated that the issue on its merits was as follows:
Whether the Grievants were discriminated against on the basis of race when they received their performance awards for the appraisal period beginning 1 February 1989 and ending January 31, 1990. If so, what is the appropriate remedy?
Id. at 10.
The Arbitrator found that the grievance was not arbitrable. He stated that Article XXXIV, Section 7 of the parties' collective bargaining agreement provides that "[a]ll EEO [Equal Employment Opportunity] complaints will be processed under the appropriate regulations including FPM [Federal Personnel Manual] chapter 713." Id. at 7. The Arbitrator found that the subject of the grievance before him was "clearly an 'EEO complaint.'" Id. at 15.
The Arbitrator noted that when the parties signed their agreement on July 20, 1978, collective bargaining in the Federal service was governed by Executive Order 11491, as amended. According to the Arbitrator, the Order "mandated that 'statutory appeal matters' be excluded from collective bargaining [and] [t]he language of Section 7 of Article XXXIV is consistent with E.O. 11491." Id. at 16. The Arbitrator further noted that collective bargaining in the Federal sector is now controlled by the Statute, and although the Statute does not mandate the exclusion of statutory appeals from collective bargaining agreements, the Statute "does state that 'any collective bargaining agreement may exclude any matter from application of the grievance procedure.'" Id. Stating that the "decision that must be made is clear[,]" the Arbitrator found that: (1) the grievance concerns a racial discrimination issue; (2) "EEO complaints" are excluded from coverage of the grievance and arbitration procedure; and (3) the subject of the grievance is excluded from coverage of the negotiated agreement. Id.
In so finding, the Arbitrator rejected the Union's argument that the Agency's jurisdictional argument was untimely raised. The Arbitrator held that the issue of whether a subject of a grievance has been excluded from the coverage of the grievance and arbitration procedure is a jurisdictional challenge that "may be raised for the first time even at the arbitration hearing . . . ." Id. The Arbitrator noted that "[t]he late voicing of a jurisdictional question might be grounds for requesting postponement of an arbitral hearing so that the surprised party would have time to prepare its case[,]" but stated that the Union did not request a postponement in this case. Id.
Accordingly, the Arbitrator ruled that he did not have jurisdiction to decide the issue on its merits.
The Union contends that the award is contrary to law and the parties' contract. The Union asserts that it has the right to file EEO complaints under the contract and that the Arbitrator demonstrated anti-Union bias by ignoring evidence submitted by the Union and contract restrictions placed on the parties in raising arbitrability issues. According to the Union, the Agency violated the contract by untimely raising its arbitrability argument and the Arbitrator improperly supported the Agency's claim.
As an initial matter, the Agency contends that the Union's exceptions should be dismissed because the Union failed to properly serve its exceptions on the Agency and "did not correct that error until after being sent two separate orders from" the Authority. Opposition at 1. The Agency also contends that it did not waive the jurisdictional issue, contrary to the Union's assertion. According to the Agency, "[j]urisdictional issues are never waived." Id. Further, the Agency asserts that it advised the Union at least four days before the arbitration hearing that it intended to raise jurisdiction as an issue and that the Union "did not request additional time to respond to this issue, despite being apprised of the fact that [it] could make such a request." Id.
V. Analysis and Conclusions
We conclude that the Union's exceptions are properly before us and that they provide no basis for finding the award deficient.
We reject the Agency's claim that the exceptions should be dismissed because they were improperly served on the Agency. The Agency acknowledg