[ v08 p780 ]
08:0780(130)CA
The decision of the Authority follows:
8 FLRA No. 130
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-1860
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1), (5) AND (8)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RECOMMENDED THAT THE CASE BE DISMISSED IN ITS ENTIRETY. THEREAFTER,
THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF 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 AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1860 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 26, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ IN ADOPTING THE JUDGE'S CONCLUSION THAT THE COMPLAINT SHOULD BE
DISMISSED AS UNTIMELY INSOFAR AS IT ALLEGES A VIOLATION ARISING OUT OF
RESPONDENT'S ALLEGED REFUSAL TO ACT ON THE UNION'S NOVEMBER 6, 1979
REQUEST FOR SUBMISSION TO ARBITRATION, THE AUTHORITY NOTES THAT THERE IS
NO EVIDENCE THAT THE UNION WAS PREVENTED FROM FILING A CHARGE DURING THE
SIX MONTH PERIOD FOLLOWING THAT DATE BY ANY FAILURE OF THE AGENCY TO
PERFORM A DUTY OWED. (SEE SECTION 7118(A)(4) OF THE STATUTE.) RATHER,
AS DETAILED BY THE JUDGE, THE UNION DID NOTHING TO PURSUE ITS REQUEST
UNTIL MID-OCTOBER 1980 AND DID NOT FILE AN UNFAIR LABOR PRACTICE CHARGE
UNTIL JANUARY 16, 1981, WELL BEYOND THE APPLICABLE SIX MONTH PERIOD.
-------------------- ALJ$ DECISION FOLLOWS --------------------
NORFOLK NAVAL SHIPYARD
RESPONDENT
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
CHARGING PARTY
CASE NO. 3-CA-1860
DENNIS K. REISCHL, ESQ.
FOR THE RESPONDENT
HEATHER BRIGGS, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
OF AN UNFAIR LABOR PRACTICE CHARGE FILED JANUARY 16, 1981, WITH THE
FEDERAL LABOR RELATIONS AUTHORITY. CONSEQUENTLY, ON MARCH 27, 1981, THE
REGIONAL DIRECTOR OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5), AND )8) OF THE STATUTE BY
UNILATERALLY IMPLEMENTING A CHANGE IN THE PROCEDURES FOR SUBMITTING A
GRIEVANCE TO BINDING ARBITRATION, THEREBY COMMITTING A CLEAR AND PATENT
BREACH OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, AND BY REFUSING
TO SUBMIT A GRIEVANCE TO BINDING ARBITRATION. RESPONDENT DENIES THE
ALLEGATIONS.
A HEARING WAS HELD ON APRIL 28, 1981, IN NORFOLK, VIRGINIA. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO
INTRODUCE EVIDENCE. POST HEARING BRIEFS WERE FILED BY JUNE 9, 1981, AND
HAVE BEEN CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS, AND RECOMMENDATION:
FINDINGS OF FACT
BY MEMORANDUM DATED NOVEMBER 6, 1979, THE TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL (THE UNION) ADVISED RESPONDENT THAT IT
WISHED TO TAKE THE CASE OF SAMUEL L. WILLIAMS TO BINDING ARBITRATION.
/1/
ARTICLE 34, SECTION 2 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
PROVIDES, IN PERTINENT PART:
WITHIN FIVE CALENDAR DAYS FOLLOWING RECEIPT OF WRITTEN NOTICE TO
ARBITRATE, THE EMPLOYER
WILL REQUEST THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO SUBMIT
A LIST OF FIVE OR MORE
IMPARTIAL PERSONS QUALIFIED TO ACT AS ARBITRATORS. THE PARTIES WILL
MEET WITHIN FIVE CALENDAR
DAYS AFTER RECEIPT OF SUCH LIST TO SELECT AN ARBITRATOR . . .
RESPONDENT DID NOT SUBMIT A REQUEST TO FMCS FOR A LIST OF
ARBITRATORS. /2/ INSTEAD, RESPONDENT WROTE BACK TO THE UNION ON
DECEMBER 3, 1979, REVIEWING THE MERITS OF THE WILLIAMS GRIEVANCE AND
ASKING THE UNION TO RECONSIDER ITS POSITION ON THE MERITS.
NEITHER PARTY TOOK ANY ACTION WITH REGARD TO THE GRIEVANCE FOR OVER
10 MONTHS. /3/ IN MID-OCTOBER 1980, THE GRIEVANT ASKED THE UNION FOR A
STATUS REPORT ON HIS GRIEVANCE. THIS INQUIRY PROMPTED THE UNION TO
RENEW ITS REQUEST FOR ARBITRATION IN A LETTER DATED OCTOBER 15, 1980.
MANAGEMENT RESPONDED BY LETTER DATED OCTOBER 28, 1980, WHICH CONCLUDED:
THUS, FOR FAILURE TO PROSECUTE, WE HAD CONSIDERED THE CASE OF MR.
WILLIAMS TO BE A CLOSED
ISSUE. I CONSIDER THAT THE ONLY VIABLE ALTERNATIVE NOW OPEN TO THE
COUNCIL IS TO PURSUE THE
QUESTION OF ARBITRABILITY. IF YOU CHOOSE TO PURSUE THIS COURSE OF
ACTION, A WRITTEN
STIPULATION OF THE ISSUES TO BE SUBMITTED TO ARBITRATION APPEARS TO
BE A NECESSITY.
BY LETTER DATED NOVEMBER 17, 1980, RESPONDENT REITERATED ITS POSITION
THAT IT WOULD BE WILLING TO SUBMIT THE QUESTION OF ARBITRABILITY AND
SUGGESTED THAT THE PARTIES MEET "IN AN EFFORT TO AGREE UPON THE ISSUE(S)
TO BE SUBMITTED TO ARBITRATION." THIS SAME POSITION WAS AGAIN STATED IN
A LETTER TO THE UNION DATED DECEMBER 22, 1980. THE UNION RESPONDED ON
JANUARY 5, 1981, AGAIN REQUESTING ARBITRATION AND SUGGESTING THAT THE
QUESTION OF ARBITRABILITY COULD BE RAISED AT THE HEARING FOR A "BENCH
DECISION". IN ITS LAST RESPONSE, DATED JANUARY 29, 1981, RESPONDENT
STATED:
IN PAST CASES CONCERNING ARBITRABILITY, THE SHIPYARD HAS INSISTED ON
RESOLVING
ARBITRABILITY QUESTIONS SEPARATE AND APART FROM CONSIDERING THE
MERITS OF THE CASE. THE CASE
OF (A NAMED EMPLOYEE) IS ONE OF SEVERAL PAST CASES WHERE THE QUESTION
OF ARBITRABILITY WAS
RESOLVED IN THIS MANNER. THE SHIPYARD HAS NOT REFUSED TO ARBITRATE
THE GRIEVANCE OF
MR. WILLIAMS; HOWEVER, MANAGEMENT STILL CONSIDERS IT ESSENTIAL THAT
THE ISSUE OF ARBITRABILITY
BE RESOLVED. THIS PRACTICE HAS BEEN BASED ON THE PARTIES (SIC)
INTERPRETATION OF THE
NEGOTIATED AGREEMENT . . .
ALTHOUGH THE PARTIES' COLLECTIVE BARGAINING AGREEMENT IS SILENT AS TO
THE HANDLING OF ARBITRABILITY DISPUTES, OTHER DOCUMENTARY EVIDENCE
DEMONSTRATES THAT, CONSISTENT WITH THE CLAIM ASSERTED IN RESPONDENT'S
LETTER OF JANUARY 29, 1981, THE PARTIES HAD, ON NUMEROUS OCCASIONS,
SUBMITTED ONLY THE QUESTION OF ARBITRABILITY AS A THRESHOLD MATTER, WITH
A LATER HEARING HELD ON THE MERITS WHERE THE QUESTION OF ARBITRABILITY
WAS ANSWERED IN THE AFFIRMATIVE. /4/
DISCUSSION AND CONCLUSIONS
IT IS AT ONCE APPARENT THAT THE COMPLAINT, INSOFAR AS IT ALLEGES A
VIOLATION OF THE STATUTE ARISING OUT OF RESPONDENT'S CONDUCT IN NOVEMBER
OF 1979, MUST BE DISMISSED AS UNTIMELY. IF RESPONDENT WERE OBLIGATED TO
NOTIFY THE FMCS WITHIN FIVE DAYS OF THE REQUEST TO ARBITRATE,
NOTIFICATION WOULD HAVE HAD TO HAVE BEEN EFFECTUATED BY NOVEMBER 11,
1979. UNDER THOSE CIRCUMSTANCES AN UNFAIR LABOR PRACTICE CHARGE WOULD
HAD TO HAVE BEEN FILED BY MID-MAY OF 1980. /5/ HOWEVER, THE CHARGE IN
THIS CASE WAS FILED ON JANUARY 16, 1981, SOME EIGHT MONTHS OUT OF TIME.
COUNSEL FOR THE GENERAL COUNSEL CONCEDES THIS POINT, BUT FOR THE
ARGUMENT THAT THE UNION HAD NO ACTUAL KNOWLEDGE UNTIL OCTOBER 1980 THAT
THE REQUEST FOR A LIST OF ARBITRATORS HAD NOT ACTUALLY BEEN SENT TO
FMCS. I FIND THAT ARGUMENT UNPERSUASIVE, FOR EVEN IF THE UNION DID NOT
HAVE ACTUAL KNOWLEDGE, IT CERTAINLY SHOULD HAVE KNOWN THE STATUS OF ITS
MEMBER'S GRIEVANCE THROUGHOUT ITS COURSE. FIRST, HAD THE UNION FOLLOWED
ITS PAST PRACTICE OF COSIGNING THE REQUEST FOR A LIST OR ARBITRATORS, IT
WOULD HAVE KNOWN WHAT TOOK PLACE, OR DID NOT TAKE PLACE, AT THE
EXPIRATION OF THE FIRST FIVE DAYS. SECOND, THE UNION KNEW THAT IT MIGHT
TAKE FROM FOUR TO EIGHT WEEKS TO RECEIVE A LIST OF ARBITRATORS FROM
FMCS, YET AT THE EXPIRATION OF THAT PERIOD OF TIME, IT STILL STOOD
QUIET. THIRD, THE UNION NEVER RESPONDED TO THE SHIPYARD'S DECEMBER 3,
1979, REQUEST TO RECONSIDER ITS POSITION ON THE MERITS. FINALLY, IT WAS
ONLY AFTER THE GRIEVANT HIMSELF, RAISED THE QUESTION OF THE STATUS OF
HIS GRIEVANCE THAT THE UNION UNDERTOOK ANY ACTION. REGARDLESS OF THE
INTERNAL DISRUPTION CAUSED BY THE CHANGE IN ITS LEADERSHIP, OR FOR
WHATEVER OTHER REASON WHICH MAY BE ADVANCED FOR ITS INACTION, THE FACT
REMAINS THAT THE UNION DROPPED THE BALL IN THIS MATTER WHEN IT FAILED TO
MAKE AN INQUIRY INTO THE STATUS OF THE CASE DURING A PERIOD OF TIME WHEN
IT SHOULD HAVE BEEN ON NOTICE THAT NOTHING WAS HAPPENING. AS SANTAYANA
PUT IT, "KNOWLEDGE IS RECOGNITION OF SOMETHING ABSENT; IT IS A
SALUTATION, NOT AN EMBRACE." /6/
AS A SECOND ISSUE, COUNSEL FOR THE GENERAL COUNSEL POSITS THAT
RESPONDENT UNILATERALLY CHANGED THE GRIEVANCE PROCEDURE WITHOUT NOTICE
TO THE UNION BY REFUSING TO ARBITRATE THE MERITS OF THE GRIEVANCE
SIMULTANEOUSLY WITH AN ARBITRABILITY ISSUE. THIS ISSUE IS BOTTOMED ON
RESPONDENT'S LETTER OF OCTOBER 29, 1980, WHICH PROPOSED A WRITTEN
STIPULATION OF "ISSUES TO BE SUBMITTED TO ARBITRATION." THIS LETTER, OR
FOR THAT MATTER ANY OTHER CONDUCT OF RESPONDENT, CANNOT BE CONSTRUED AS
A REFUSAL TO ARBITRATE. THE MOST THAT ONE COULD CONCLUDE FROM THE
RECORD IS THAT THERE WAS A DISAGREEMENT AS TO PROCEDURE. MOREOVER, THE
RECORD DOES NOT WARRANT A FINDING THAT RESPONDENT SOUGHT TO CHANGE ANY
PRACTICE; IT MERELY SOUGHT TO CONTINUE WHAT IT CONSIDERED TO BE THE
PREVAILING PRACTICE. THE COLLECTIVE BARGAINING AGREEMENT IS SILENT AS
TO WHETHER ARBITRABILITY IS TO BE DECIDED AS A SINGLE ISSUE IN A
SEPARATE HEARING OR WHETHER IT MAY BE CONSIDERED AT THE SAME HEARING
WITH THE MERITS. CLEARLY THE PRACTICE HERE WAS TO CONSIDER
ARBITRABILITY AS A SEPARATE ISSUE. THE UNION DOES NOT DENY THAT IT HAS
AGREED, ON NUMEROUS OCCASIONS, TO SUBMIT ONLY THAT ISSUE. UNDER THE
CIRCUMSTANCES, I CONCLUDE THAT THERE HAS BEEN NO SHOWING THAT RESPONDENT
REFUSED TO ARBITRATE, NO SHOWING THAT THERE WAS ANY UNILATERAL CHANGE IN
THE GRIEVANCE PROCEDURE, AND THEREFORE, NO PROOF OF ANY UNFAIR LABOR
PRACTICE. ACCORDINGLY, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C):
ORDER
ORDERED, THAT THE COMPLAINT IN CASE NO. 3-CA-1860 IS DISMISSED.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: JULY 28, 1981
WASHINGTON, DC
--------------- FOOTNOTES$ ---------------
/1/ THE MEMORANDUM WAS SIGNED BY LOUIS NARDOZI WHO WAS, AT THAT TIME,
CHAIRMAN OF THE COUNCIL. RONALD E. AULT WAS ELECTED CHAIRMAN IN
NOVEMBER 1979, BUT DID NOT ASSUME OFFICE UNTIL JANUARY 1980.
/2/ EXCEPT IN ONE CASE WHERE RESPONDENT REQUESTED ARBITRATION,
WHENEVER THE UNION REQUESTED ARBITRATION, THE UNION WOULD SIGN THE
REQUEST TO THE FMCS WHICH RESPONDENT PREPARED. IN THIS CASE, THE UNION
DID NOT COME IN TO SIGN A REQUEST TO FMCS FOR A LIST OF ARBITRATORS.
/3/ THE UNION ATTRIBUTES ITS LACK OF ACTION TO THE CHANGE OF
ADMINISTRATION WHICH BEGAN WITH THE ELECTION IN NOVEMBER AND THE
INSTALLATION OF NEW OFFICERS IN JANUARY. RESPONDENT, ON THE OTHER HAND,
ASSUMED THAT SINCE THE UNION DID NOT RESPOND TO ITS DECEMBER 3 LETTER,
IT NO LONGER WISHED TO PROCESS THE WILLIAMS GRIEVANCE.
/4/ THE UNION'S EVIDENCE, THAT ON TWO OCCASIONS THE ARBITRABILITY
ISSUE HAD ONLY BEEN THE THRESHOLD ISSUE AND THAT THE MERITS HAD BEEN
ADDRESSED AS WELL, WAS UNDOCUMENTED. HOWEVER, EVEN IF TAKEN AS A FACT,
IT IS CLEAR THAT THE GENERAL PRACTICE WAS TO SEPARATE THE QUESTION OF
ARBITRABILITY FROM THE MERITS AND PROCEED ON THE LATTER ONLY AFTER AN
AFFIRMATIVE FINDING ON THE FORMER.
/5/ SECTION 7118(A)(4)(A) PROVIDES THAT " . . . NO COMPLAINT SHALL BE
ISSUED BASED ON ANY ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE
THAN SIX MONTHS BEFORE THE FILING OF THE CHARGE WITH THE AUTHORITY."
/6/ GEORGE SANTAYANA, THE LIFE OF REASON: REASON IN COMMON SENSE
(1905-06).