In the Matter of DEPARTMENT OF THE AIR FORCE LUKE AIR FORCE BASE LUKE AFB, ARIZONA	Case No. 96 FSIP 38
and LOCAL 1547, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

ARBITRATOR’S OPINION AND DECISION

      Local 1547 of the American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of the Air Force, Luke Air Force Base, Luke AFB, Arizona (Employer). After investigation of the request for assistance, the Panel directed the parties to mediation-arbitration before the undersigned. On April 18, 1996, after the parties discussed their respective positions and resolved three of the four issues at impasse,⁽¹⁾ an arbitration hearing was conducted to complete the factual record of the case. The Employer submitted documentary evidence during the hearing in support of its position. The record is now closed.

BACKGROUND

    The Employer is responsible for training pilots to fly F-16 fighter jets. The Union represents approximately 800 bargaining-unit employees who occupy a variety of administrative, technical, and clerical positions, and also work in various trades and crafts. This impasse arose from negotiations over the parties’ successor collective bargaining agreement (CBA). The parties’ current CBA was to have expired in November 1986, but remains in effect until this impasse involving the grievance article is resolved, and the successor CBA is implemented.

ISSUE AT IMPASSE

    The parties essentially disagree whether certain wording should be included in the successor CBA governing situations where either party withdraws a grievance that has been scheduled for binding arbitration.

1. The Employer’s Position

    The Employer’s proposal is as follows:

Absent mutual agreement, withdrawal of a grievance that has been scheduled for binding arbitration will be considered to have satisfactorily resolved the grievance in favor of the other party.

    The need for its proposal is illustrated by a grievance involving environmental differential pay (EDP) which was filed by the Union in 1991 on behalf of approximately 72 bargaining-unit employees covered by 26 different position descriptions. Management’s denial of the grievance eventually led to an arbitration hearing which resulted in an arbitrator’s determination that it was arbitrable, and in the scheduling of a lengthy second hearing to decide the merits of the grievance. Four days prior to the second hearing, the Union submitted a letter to the Employer withdrawing the grievance "without prejudice." The Union’s actions caused "the needless and wasteful expenditure of taxpayer’s money," and degraded the integrity of the grievance process. They also demonstrate how the current grievance process is subject to "unilateral manipulation." To make matters worse, because the underlying grievance issue was never resolved, the Union is currently considering whether to file another grievance concerning EDP.

    The proposed wording would encourage both parties to take the grievance process seriously. It essentially establishes that a party withdrawing a grievance prior to a scheduled arbitration hearing does so "with prejudice," that is, it would have the effect of preventing the resubmission of the same grievance at a later date. Moreover, the proposal is fair because it applies equally to both parties. The grievance process could still be used by employees to vent their frustrations with management actions, but its proposal would preclude such venting from resulting in the unnecessary expenditure of time and resources. Finally, the Employer is aware of a growing trend of last-minute withdrawals by unions at other Air Force bases. The adoption of its proposal could discourage such behavior at those installations as well.

2. The Union’s Position

    The Employer should be ordered to withdraw its proposal because it provides "a solution without a problem." In this regard, these parties have no history of last-minute withdrawals of requests for arbitration, except for one isolated case. Even there, the Union’s withdrawal of the EDP grievance avoided unnecessary litigation, in accordance with the goals of the National Performance Review. In addition, the proposal could create new problems by forcing the filing party to litigate "bad" cases to avoid the penalty imposed for withdrawing grievances. The Union would prefer to trust arbitrators to decide whether a previously withdrawn grievance prejudices a new grievance.

CONCLUSION

    Having carefully considered the entire record on this issue, including the documents provided at the hearing, I am not persuaded that the Employer’s proposed wording should be included in the parties’ successor agreement. Given its experience concerning the Union’s withdrawal of the EDP grievance, the Employer’s attempt to secure a contractual guarantee preventing future occurrences of this type is understandable. Even assuming that the Union’s conduct was as egregious as the Employer alleges, however, this one incident provides an insufficient basis for changing the status quo. Moreover, the proposal would provide only an indirect, and potentially ineffective, method for deterring such conduct. In this regard, while its adoption would undoubtedly discourage the filing of subsequent grievances over the same matter, depending on the Union’s willingness to accept this consequence, nothing would prevent it from adopting a strategy of continually withdrawing grievances just prior to scheduled arbitrations. In my view, there are already enough good reasons for both parties to act reasonably when invoking arbitration that whatever additional incentive the proposed wording may provide is unnecessary. Accordingly, I shall order the Employer to withdraw its proposal.

DECISION

    The Employer shall withdraw its proposal.

 

H. Joseph Schimansky

Arbitrator

April 26, 1996

Washington, D.C.

 

1.As a result of mediation efforts, the Union withdrew one of its proposals concerning Article 23, section C(8), and the Employer withdrew two of its proposals concerning Article 24, sections D and F.