22:0437(42)CA - Health Care Financing Administration and AFGE Local 1923 -- 1986 FLRAdec CA
[ v22 p437 ]
22:0437(42)CA
The decision of the Authority follows:
22 FLRA No. 42
HEALTH CARE FINANCING ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case No. 3-CA-30618
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties who have
agreed that no material issue of fact exists. Briefs for the
Authority's consideration were filed by the Respondent and the General
Counsel. The complaint alleges that the Respondent, Health Care
Financing Administration, violated section 7116(a)(1) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
refusing to participate in the arbitration of a grievance filed on
behalf of a bargaining unit employee by the American Federation of
Government Employees, Local 1923, AFL-CIO (the Union), the agent of the
American Federation of Government Employees, AFL-CIO (AFGE) in matters
concerning the Respondent's Headquarters employees.
II. Facts
The Union filed a grievance on behalf of employee Floyd McDaniels on
March 31, 1983, pursuant to the negotiated grievance procedure contained
in the agreement between AFGE and the Respondent. On May 10, 1983, the
Union advised the Respondent that it was referring McDaniels' grievance
to arbitration in accordance with the negotiated grievance procedure.
On June 1, 1983, the Union submitted a signed copy of a Federal
Mediation and Conciliation Service "Request for Arbitration Panel" to
the Respondent for its concurring signature. On June 6, 1983, the
Respondent advised the Union that it was refusing to participate in the
arbitration proceeding because the issue raised was "not an appropriate
grievance under our negotiated grievance procedure."
III. The Issue
Whether the Respondent violated section 7116(a)(1) and (8) of the
Statute by refusing to participate in the arbitration of a grievance
filed by the Union on March 31, 1983, on behalf of a bargaining unit
employee, under the parties' negotiated grievance procedure.
IV. Positions of the Parties
The General Counsel contends that the Respondent violated section
7116(a)(1) and (8) of the Statute by refusing to proceed to arbitration
on the grounds that the matter was not grievable under the parties'
negotiated agreement. The General Counsel specifically relies on the
Authority's rationale in Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 11 FLRA 456 (1983), in which an
agency was found to have failed to comply with the requirements of
section 7121 of the Statute by refusing to participate in binding
arbitration of a grievance which it believed to pose an issue that was
excluded by the terms of the parties' negotiated agreement.
The Respondent contends that its refusal to participate in the
arbitration proceeding based on the belief that the subject matter of
the Union's grievance, contracting out, was not an appropriate subject
for arbitration pursuant to the parties' agreement, did not prevent the
Union from proceeding to arbitration on its own. The Respondent further
contends that it never expressed an unwillingness to be bound by such an
arbitrability award or to share in the costs of the Union's decision to
proceed to arbitration. In conclusion, the Respondent asserts that the
intent of section 7121 of the Statute is to permit either party to
proceed with arbitration alone, and that the process is not discouraged
despite the Authority's contrary views in prior decisions.
V. Analysis
It has long been established that section 7121 of the Statute
mandates that each collective bargaining agreement shall provide
procedures for the settlement of grievances, including questions of
arbitrability, and unless the parties, consistent with law, mutually
agree otherwise, such procedures must be read as providing that all
questions of arbitrability not otherwise resolved shall be submitted to
arbitration. See Interpretation and Guidance, 2 FLRA 273, 278 n.7
(1979). Further, as stated by the Authority in Department of Labor,
Employment Standards Administration/Wage and Hour Division, Washington,
D.C., 10 FLRA 316, 321 (1982), and reaffirmed here, "(w)hile nothing in
the Statute precludes either party from invoking arbitration and
proceeding ex parte if necessary, a refusal by the other party to
participate in the 'procedures for the settlement of grievances,
including questions of arbitrability' . . . conflicts with the
requirements of section 7121." As found in the Department of Labor case,
such a failure to comply with the requirements of section 7121
constitutes a violation of section 7116(a)(1) and (8) of the Statute.
See also Department of the Navy, Portsmouth Naval Shipyard, Portsmouth,
New Hampshire, 11 FLRA 456 (1983), and Department of the Army, 83rd
United States Army Command, Columbus, Ohio, 11 FLRA 55 (1983). Further,
without deciding whether the result would have been different in this
case if the Respondent had signified its willingness to be bound by and
share the costs of the arbitrator's decision, the record contains no
evidence that the Respondent notified the Union of any such intentions.
VI. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties. The Authority concludes
that the Respondent's refusal to proceed to arbitration constituted a
failure to comply with the requirements of section 7121 of the Statute
in violation of section 7116(a)(1) and (8).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Health Care Financing Administration shall:
1. Cease and desist from:
(a) Unilaterally refusing or failing to proceed to arbitration
regarding a grievance filed by the American Federation of
Government Employees, Local 1923, AFL-CIO, as the agent for the
American Federation of Government Employees, AFL-CIO, the
employees' exclusive representative, regarding the conversion of
the functions of the Office of Direct Reimbursement (ODR) to the
private sector, after receiving timely notice of the exclusive
representative's desire to invoke arbitration.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, proceed to arbitration regarding the
grievance filed by the American Federation of Government
Employees, Local 1923, AFLO-CIO, regarding the conversion of the
functions of the Office of Direct Reimbursement (ODR) to the
private sector.
(b) Post at its Headquarters facilities copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Administrator, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
with it.
Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally refuse or fail to proceed to arbitration
regarding a grievance filed by the American Federation of Government
Employees, Local 1923, AFL-CIO, as the agent for the American Federation
of Government Employees, AFL-CIO, the employees' exclusive
representative, regarding the conversion of the functions of the Office
of Direct Reimbursement (ODR) to the private sector, after receiving
timely notice of the exclusive representative's desire to invoke
arbitration.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request, proceed to arbitration regarding the grievance
filed by the American Federation of Government Employees, Local 1923,
AFL-CIO, regarding the conversion of the functions of the Office of
Direct Reimbursement (ODR) to the private sector.
(Agency or Activity)
Dated: . . .
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, NW., 7th Floor, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.