[ v08 p266 ]
08:0266(61)AR
The decision of the Authority follows:
8 FLRA No. 61 HEADQUARTERS, AIR FORCE LOGISTICS COMMAND Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL NO. 214 Union Case No. O-AR-164 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF ARBITRATOR CHARLES F. IPAVEC FILED BY THE UNION UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC. 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425). THE AGENCY FILED AN OPPOSITION. ACCORDING TO THE ARBITRATOR, THE ISSUE IN THIS CASE CONCERNS THE UNION'S GRIEVANCE OBJECTING TO A GUIDANCE AND TRAINING MANUAL WHICH THE AGENCY DISTRIBUTED TO ITS MANAGERS AND SUPERVISORS. THE UNION ALLEGED THAT THE MANUAL ERRONEOUSLY INTERPRETED PORTIONS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND THEREBY REDUCED THE UNION'S RIGHTS UNDER THE AGREEMENT. THE ARBITRATOR HELD A HEARING AT WHICH HE ANNOUNCED HIS INTENTION TO HEAR EVIDENCE ON THE ISSUE OF ARBITRABILITY FIRST, AND THEN TO HEAR EVIDENCE ON THE MERITS. HOWEVER, IN HIS AWARD HE STATED THAT "TIME PERMITTED ONLY THE INTRODUCTION OF EVIDENCE AS TO THE QUESTION OF ARBITRABILITY, AND THIS DECISION IS DIRECTED ONLY TO THAT ISSUE." THE ARBITRATOR THEN DETERMINED THAT THE GRIEVANCE WAS NOT ARBITRABLE BECAUSE THERE WAS "NO QUESTION THAT THE WITHIN GRIEVANCE WAS FILED BEFORE THE AGENCY PERFORMED ANY SPECIFIC ACTION WHICH INFRINGED UPON THE RIGHTS OF THE BARGAINING UNIT." IN ITS EXCEPTIONS, THE UNION ALLEGES THE AWARD IS DEFICIENT BECAUSE THE ARBITRATOR DID NOT CONDUCT A FULL AND FAIR HEARING AND BECAUSE THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT. SPECIFICALLY, THE UNION OBJECTS TO THE ARBITRATOR'S REFUSAL TO HOLD A HEARING ON THE MERITS BEFORE MAKING HIS RULING ON THE ARBITRABILITY ISSUE. THE UNION CONTENDS THE ARBITRATOR REFUSED TO HEAR EVIDENCE CONCERNING SPECIFIC ACTIONS BY THE AGENCY ON THE GROUNDS THAT SUCH EVIDENCE SHOULD BE RESERVED FOR THE HEARING ON THE MERITS, WHICH NEVER OCCURRED. THE UNION CONTENDS THAT THE CLEAR LANGUAGE OF THE CONTRACT REQUIRES THAT AN ARBITRATOR, AFTER DECIDING THAT A REASONABLE BASIS EXISTS THAT THE ISSUE IS ARBITRABLE, HEAR THE MERITS OF THE CASE AND DECIDE THE ISSUES TOGETHER. /1/ HOWEVER, THE UNION HAS NOT DEMONSTRATED THAT THE AWARD IS DEFICIENT. THAT IS, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S FAILURE TO ULTIMATELY HOLD A HEARING ON THE MERITS IN ANY MANNER PREVENTED THE UNION FROM PRESENTING EVIDENCE WITH REGARD TO THE ARBITRABILITY ISSUE OR THAT THE ARBITRATOR REJECTED EVIDENCE RELEVANT TO THAT ISSUE. THE UNION'S QUOTES FROM PORTIONS OF THE OFFICIAL TRANSCRIPT OF THE HEARING SHOW ONLY AN ATTEMPT BY THE ARBITRATOR TO LIMIT THE EVIDENCE TO THE QUESTION OF ARBITRABILITY AND DO NOT SHOW THAT THE ARBITRATOR REJECTED EVIDENCE WHICH THE UNION WAS SPECIFICALLY ATTEMPTING TO OFFER AS RELEVANT TO THIS QUESTION. FURTHER, THE UNION HAS NOT DEMONSTRATED THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT. THE UNION HAS NOT SHOWN THAT EITHER THE CITED AGREEMENT PROVISION OR THE ARBITRATOR'S INITIAL BENCH RULING THAT THERE WAS NO NEED TO BIFURCATE THE HEARINGS ON ARBITRABILITY AND THE MERITS PREVENTED THE ARBITRATOR FROM SUBSEQUENTLY ISSUING A DECISION ON THE ARBITRABILITY QUESTION WHEN TIME DID NOT PERMIT THE MERITS ISSUE FROM BEING HEARD AND BOTH PARTIES HAD A FULL OPPORTUNITY TO PRESENT EVIDENCE WITH RESPECT TO THE ARBITRABILITY OF THE GRIEVANCE. FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED. ISSUED, WASHINGTON, D.C., MARCH 25, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ THE UNION REFERS TO SECTION 7.05 OF ARTICLE 7 WHICH PROVIDES IN PART: IF THE ARBITRATOR DETERMINES THAT (THERE) IS A REASONABLE BASIS THAT THE ISSUE IS ARBITRABLE, HE WILL HEAR THE MERITS OF THE UNDERLYING GRIEVANCE AND DECIDE THE ISSUES TOGETHER.