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50:0279(48)AR - - AFGE, Local 1931 and Navy, Naval Weapons Station, Concord, CA - - 1995 FLRAdec AR - - v50 p279

[ v50 p279 ]
The decision of the Authority follows:

50 FLRA No. 48





LOCAL 1931










March 29, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Askin 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 Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator found that a grievance, which challenged the Agency's refusal to consider the grievant for a vacant position, was not arbitrable.

For the following reasons, we find that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

After the grievant was transferred from the Agency to another, separate, agency within the Federal Government, he applied for a vacant position with the Agency. The Agency advised the grievant that he was ineligible for the position because consideration was limited to employees of the Agency.

The Arbitrator framed the issues as follows:

1) Is the grievance arbitrable?

2) Did the Employer violate provisions of the Contract, specifically Articles [sic] 4, Section 1; Article 7, Sections 1 and 3; Article 25, or any other provisions of the Contract, by denying [the grievant] the opportunity to be considered for the position of Material Handler Supervisor, WS-6907-07?

3) Did the Employer afford [the grievant] a fair and equitable opportunity to be considered for promotion as required by Federal law 5 U.S.C. 2301 and 2302?

4) If the answer is yes to either of the first two issues, what is the appropriate remedy?

Award at 2.

The Arbitrator ruled that the grievance was not arbitrable because the negotiated grievance procedure was available only to bargaining unit employees of the Agency and the grievant did not fall within the contractual definition of employee. The Arbitrator also rejected the Union's argument that, prior to the transfer of the grievant, the parties modified the collective bargaining agreement to allow transferred employees to grieve matters such as the failure to be considered for positions with the Agency.

III. Exceptions

The Union contends that the award is contrary to Federal laws, rules and regulations because it denies the grievant access to the grievance procedure on a matter that arose while the grievant was a member of the bargaining unit. The Union cites Aamodt v. United States, 976 F.2d 691 (Fed. Cir. 1992) (Aamodt) in support.(*) In addition, the Union asserts that the award is contrary to 5 U.S.C. §§ 2301 and 2302 because it upholds the Agency's allegedly improper refusal to consider the grievant for the vacant position.

IV. Analysis and Conclusions

An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas Texas, 50 FLRA 184, 185 (1995). Such determination may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. Id. at 186. The Union's contention that the grievance arose when the grievant was still a member of the bargaining unit is a challenge to the Arbitrator's procedural arbitrability determination under the parties' agreement and does not provide a basis for finding the award deficient. Cf. Immigration and Naturalization Service, Department of Justice, U.S. Government and American Federation of Government Employees, Local No. 1656, 7 FLRA 549, 551-52 (1982) (arbitrator's finding as to who could file grievances on behalf of unit employees involved, in part, ruling on procedural requirements under negotiated agreement and did not provide basis for finding award deficient). Moreover, the Union's reliance on Aamodt is misplaced because, unlike that case, the Arbitrator did not determine that the grievant was in the bargaining unit at the time of the claimed failure to be considered for a position.

The Union's additional argument that the award violates 5 U.S.C. §§ 2301 and 2302 also does not provide a basis for finding the award deficient. The Arbitrator determined only that the grievance was not arbitrable under the parties' negotiated grievance procedure and did not reach the substantive issue of whether the grievant was entitled to be considered for the vacant position. For example, International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 44 FLRA 1291, 1300 (1992).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

*/ In Aamodt, former bargaining unit employees sought overtime pay for work that was performed while they were still in the bargaining unit. The court held that the claims were arbitrable because they arose while the employees were still in the bargaining unit and the agreement did not exclude such claims from the scope of the negotiated grievance procedure.