[ v24 p875 ]
24:0875(83)CA
The decision of the Authority follows:
24 FLRA No. 83
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Case No. 5-CA-60110
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's decision, the exceptions to that Decision, and the entire
record, the Authority hereby adopts the Judge's findings, conclusions,
and recommended Order that the complaint be dismissed. /*/
ORDER
The complaint in Case No. 5-CA-60110 is dismissed. Issued,
Washington, D.C., December 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 5-CA-60110
DEPARTMENT OF THE AIR FORCE HEADQUARTERS,
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL 214, AFL-CIO
Charging Party
Major Steven E. Sherwood
For the Respondent
Mr. Paul Palacio
Ms. Julia A. Collier
For the Charging Party
Judith A. Ramey, Esquire
For the General Counsel
Before: William B. Devaney
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
Respondent committed an unfair labor practice, in violation of Sections
16(a)(1) and (5) of the Statute, by filing a grievance. At the
conclusion of the General Counsel's case, I stated that I intended to
grant Respondent's motion to dismiss; but, since a written decision was
required, General Counsel and the Charging Party were afforded the
opportunity to submit briefs, which would be carefully considered; but
unless persuaded that my conclusion was incorrect my decision would be
that Respondent's motion to dismiss was granted. General Counsel has
filed a brief opposing the granting of Respondent's motion to dismiss,
timely mailed on April 15, 1986, and received on April 21, 1986, and
Respondent has filed a brief in support of its motion to dismiss, timely
mailed on April 14, 1986, and received on April 18, 1986, which have
been carefully considered.
This case was initiated by a charge filed on January 27, 1986 (G.C.
Exh. 1(a)), which alleged violation of Sections 16(a)(1) and (8) of the
Statute; and a First Amended Charge, filed on February 26, 1986 (G.C.
Exh. 1(c)), which alleged violation of Sections 16(a)(1) and (5) of the
Statute. The Complaint and Notice of Hearing (G.C. Exh. 1(e)) issued on
February 28, 1986, and fixed the date of hearing as April 2, 1986,
pursuant to which a hearing was duly held in Dayton, Ohio, on April 2,
1986, before the undersigned.
Findings
1. American Federation of Government Employees, Council 214, AFL-CIO
(hereinafter referred to as Council 214) represents a consolidated unit
of about 75,000 civilian employees of Respondent at eight separate
locations across the country. One of these locations is the Sacramento
Air Logistics Center at McClellan Air Force Base, California. A local
Union at McClellan, Local 1875 (hereinafter referred to as "Local
1875"), represents McClellan employees as agent of Council 214.
Similarly, Local Unions represent bargaining unit employees at the other
seven of Respondent's facilities. The parties are governed by a Master
Labor Agreement (MLA; Jt. Exh. 1) and, at McClellan also by a local
supplement (Jt. Exh. 2).
2. Council 214 had attempted, prior to December, 1983, to negotiate
an agreement with Respondent whereby multiple grievances under the MLA
could be combined for arbitration. Respondent had objected to such a
procedure and had refused to agree to any provision specifically
permitting the combining of grievances for arbitration.
3. On July 11, October 16 and November 18, 1984, a hearing was held
before Arbitrator M. K. Warns who issued her decision and award on
January 10, 1985 (erroneously dated "January 10, 1984") (Jt. Exh. 6).
Arbitrator Warns in her decision first stated, in relevant part:
". . . By mutual agreement, the parties submitted two issues to
this Arbitrator.
"Procedural Issue: The Union formulates the procedural issue
as follows: 'Can the Union present a grievance which contains two
issues both of which relate to official time in a single
arbitration hearing?
"The Employer states the issue as a matter of the
'permissibility of joining two or more separate incidents into one
arbitration proceeding, regardless of whether those incidents are
labeled as separate issues under one grievance, or as separate
grievances.'" (Jt. Exh. 6, p. 2).
Thereafter, Arbitrator Warns stated,
"The Arbitrator determines the issues before her to be:
"1. Whether or not it is a violation of the MLA or past
practice between the parties for multiple grievances, multiple
incidents, or multiple issues to be presented in one hearing to
one arbitrator?
"2. Whether or not the MLA was violated, specifically Section
4.06(2) and (19), when the Employer failed to grant official time
to Union representatives for the preparation of post hearing
briefs in arbitration? If so, what should the remedy be? (Jt.
Exh. 6, p. 2).
4. In her decision, the Arbitrator noted, inter alia that:
"The Union argues that they are not attempting to join
unrelated issues since the letter of December 2, 1983, filed an
institutional grievance over the broad issue of the interpretation
of the official time provisions for union representatives. The
incidents named in the grievance represent two situations
involving the same contractual issue, that of use of official
time. By definition, grievances filed at the command level would
involve occurrences at more than one activity. . . . " (Jt. Exh.
6, p. 4)
. . .
"There have been according to the testimony only three
arbitrations at the command level. Three occurrences are hardly
sufficient to support a conclusion of a past practice. . . . "
(Jt. Exh. 6, p. 5)
. . .
"In summary:
"1. There is no express language in the MLA prohibiting or
limiting the number of grievances, incidents, or issues which can
be presented to a single arbitrator in one hearing.
"2. There has been no mutually agreed upon, consistent past
practice which would lead to an interpretation that joinder is not
permissible.
"3. The parties discussed joinder during negotiations and no
specific language was forthcoming in the MLA limiting joinder
either as to grievances, or issues.
"4. The language of Section 7.06 as indicated supra supports
an interpretation that more than one issue may be heard by one
arbitrator at a single hearing.
"5. Testimony by Management establishes that more than one
grievance may be heard at one hearing by one arbitrator.
"6. The inevitable conclusion, consistent with arbitral
precedent generally, the language of the MLA, and the evidence and
testimony before me, is that more than one grievance, incident, or
issue may be heard by one arbitrator at a single hearing.
"AWARD
"The first issue is resolved in favor of the Union, to wit,
that multiple issues and multiple grievances in any combination
may be presented to one arbitrator in a single hearing.
"It is not a violation of the MLA or past practice for multiple
grievances, or multiple issues, in any combination to be presented
to a single arbitrator at a single hearing." (Jt. Exh. 6, pp.
7-8).
5. On December 23, 1985, McClellan AFB filed an employer grievance
at the activity level, pursuant to MLA Article 6.08 (Jt. Exh. 7). The
employer grievance stated, in part, as follows:
"1. . . . The subject of this grievance is the unilateral
action of AFGE Local 1857 in combining separate grievances for
arbitration. Further, these actions were done not only without
agreement by management to do so, but against management's
objection.
"2. We contend that neither the Union nor Management has the
authority to unilaterally combine cases for arbitration. There is
no such authority granted by the MLA. However, there is a well
established past practice at McClellan Air Force Base prior to the
current MLA and since the current MLA became effective that either
party may request the other to allow combining of cases under the
particular circumstances of the particular cases as independently
and individually determined by the parties to be in their best
interest. . . . " (Jt. Exh. 7, p. 1).
6. Mr. John V. Salas, President of Local 1857, denied the grievance
by letter dated March 7, 1986 (Jt. Exh. 8). The charge was filed on
January 27, 1986; the First Amended charge filed on February 26, 1986;
and the Complaint issued on February 28, 1986, all prior to Mr. Salas'
response to grievance.
Conclusions
Executive Order 11491 provided that,
"(a) An agreement between an agency and a labor organization
shall provide a procedure . . . for the consideration of
grievances. . . . " (E.O. 11491, Sec. 13(a))
"(b) A negotiated procedure may provide for the arbitration of
grievances. . . . " (E.O. 11491, Sec. 13(b))
The Statute made the direction more explicit:
"7121. Grievance procedures.
"(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 subsection (d) and (e) of
this section, the procedures shall be the exclusive procedures for
resolving grievances which fall within its coverage.
. . .
"(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 invoked by either the exclusive
representative or the agency." (5 U.S.C. Section 7121(a) and (b)).
Under both the Executive Order and the Statute extreme care has been
taken to insure and protect the right to file and process grievances.
It is altogether extraordinary to suggest that utilization of the very
right conferred by Congress, namely to use the negotiated grievance
procedure which Congress has specifically mandated, " . . . shall be the
exclusive procedure for resolving grievances which fall within its
coverage," constitutes an unfair labor practice.
Conceivably, a course of conduct might become so egregious that
further resort to the grievance procedure over the same issue might be
improper, a question I specifically do not decide; but assuredly not on
the basis of a single prior arbitrator's decision especially not on the
basis of an arbitration decision which neither decided, nor purported to
decide, the right to combine grievances for arbitration at an activity
level. To the contrary, the grievance before Arbitrator Warns was a
command level grievance and she stated that there had been "only three
arbitrations at the command level. Three occurances are hardly
sufficient to support a conclusion of a past practice," and she then
relied heavily on her finding that "There has been no . . . consistent
past practice which would lead to an interpretation that joinder is not
permissible" for her decision.
But more basic, arbitrators are not bound by stare decisis. An
arbitrator may follow arbitral precedent but is under no compunction to
do so and examples are legion where arbitrators have departed from
arbitral precedent involving the same issues. Certainly, Respondent has
every right to engage in elucidative litigation, at the least at the
activity level, to test the parameters of consolidation of grievances
for arbitration.
The decision of Arbitrator Warns created no duty to bargain, but her
award constituted, merely, the resolution of the grievance before her.
Indeed, Article 7, Section 7.06a of the MLR specifically provides that,
"The arbitrator's authority is limited to deciding only the issue or
issues considered in the formal grievance. . . . " (Jt. Exh. 1, Article
7, Section 7.06a.) Nor did the parties engage, or seek to engage, in
collective bargaining on the issue of consolidation of grievances for
arbitration following Arbitrator Warns decision. Consequently, I find
General Counsel's assertions concerning good faith bargaining wholly
immaterial.
Accordingly, as General Counsel failed to establish even a prima
facie showing of a violation, Respondent's Motion to Dismiss is granted
and it is recommended that the Authority adopt the following:
ORDER
The Complaint in Case No. 5-CA-60110 be, and the same is hereby,
dismissed.
/s/ William B. Devaney
Administrative Law Judge
Dated: May 5, 1986,
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) While we agree with the Judge that, under the circumstances,
utilization of the grievance procedure does not constitute an unfair
labor practice, we also note that we specifically do not decide whether
a course of conduct might become so egregious that further resort to the
grievance procedure over the same issue might be improper.
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(5) will be referred to,
simply, as "Section 16(a)(5)."