[ v07 p549 ]
07:0549(83)AR
The decision of the Authority follows:
7 FLRA No. 83 IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, U.S. GOVERNMENT Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 1656 Union Case No. O-AR-81 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF ARBITRATOR ERNEST E. MARLATT FILED BY THE UNION UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425). THE AGENCY FILED ON OPPOSITION. /2/ ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN AFGE LOCAL 1656 FILED A GRIEVANCE WITH THE ACTIVITY, THE SAN ANTONIO DISTRICT OFFICE, ALLEGING CERTAIN SAFETY VIOLATIONS UNDER THE NATIONALLY NEGOTIATED COLLECTIVE BARGAINING AGREEMENT. /3/ THE ACTIVITY REJECTED THE GRIEVANCE ON THE BASIS THAT ONLY LOCAL 1243 COULD FILE GRIEVANCES ON BEHALF OF THE ACTIVITY'S EMPLOYEES UNDER THE TERMS OF THE AGREEMENT. /4/ THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION. WHILE REFUSING TO PARTICIPATE IN THE SELECTION OF THE ARBITRATOR, THE ACTIVITY APPEARED AT THE HEARING TO SUBMIT EVIDENCE ON THE JURISDICTIONAL QUESTION. THE ARBITRATOR STATED THE "THRESHOLD ISSUE OF ARBITRABILITY" AS FOLLOWS: THE QUESTION PRESENTED IN THIS CASE IS WHETHER LOCAL 1656 IS ENTITLED TO STATUS AS "THE UNION" WITHIN THE MEANING OF THIS ARTICLE. THE ARBITRATOR FOUND THAT UNDER ARTICLE 33 OF THE AGREEMENT, IF A SETTLEMENT OF A GRIEVANCE IS NOT REACHED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, "SUCH GRIEVANCE, UPON WRITTEN REQUEST BY THE UNION, MAY BE SUBMITTED TO ARBITRATION." HOWEVER, HE REJECTED THE UNION'S ARGUMENT THAT SINCE THE AGREEMENT RECOGNIZES THE NATIONAL COUNCIL OF IMMIGRATION AND NATURALIZATION SERVICE LOCALS (THE COUNCIL) AS THE BARGAINING AGENT FOR ALL INS EMPLOYEES, AND SINCE LOCAL 1656 IS AFFILIATED WITH THE COUNCIL, THE ACTIVITY MUST ACCORD IT RECOGNITION AND ACCEPT LOCAL 1656'S GRIEVANCES UNDER THE AGREEMENT. THE ARBITRATOR FOUND THAT UNDER THE EXPRESS TERMS OF THE AGREEMENT, AND IN KEEPING WITH THE LONG BARGAINING HISTORY BETWEEN THE PARTIES WHEREBY THE LEVEL OF RECOGNITION HAS NEVER EXTENDED BELOW THE DISTRICT LEVEL, THE INS IS ENTITLED TO DEAL WITH A SINGLE LOCAL UNION AT EACH AGREED UPON LEVEL OF REPRESENTATION. SPECIFICALLY, THE ARBITRATOR FOUND THAT THE AGREEMENT, AFTER AFFORDING NATIONAL RECOGNITION TO THE COUNCIL FOR ALL NON-EXCLUDED INS EMPLOYEES, MADE "REFERENCES TO UNION-MANAGEMENT INTERFACE AT NATIONAL, REGIONAL AND DISTRICT LEVELS (BUT) . . . NO EXPRESS PROVISIONS (ARE) IN THE AGREEMENT FOR MEETINGS BELOW THESE LEVELS." THEREFORE, THE ARBITRATOR CONCLUDED: LOCAL 1656 IS NOT "THE UNION" AS THE TERM IS USED IN ARTICLE 33 OF THE AGREEMENT INSOFAR AS THAT ARTICLE CONFERS RIGHTS TO SUBMIT GRIEVANCES TO ARBITRATION. ONLY LOCAL 1243 HAS BEEN RECOGNIZED AS THE BARGAINING AGENT FOR THE NON-EXCLUDED EMPLOYEES OF THE SAN ANTONIO DISTRICT. SINCE LOCAL 1243 IS NOT A PARTY TO THE REQUEST FOR ARBITRATION, THE ARBITRATOR LACKS JURISDICTION TO RENDER A DECISION ON THE MERITS OF THE GRIEVANCE. THE ARBITRATOR THEREFORE, AS HIS AWARD, DISMISSED THE GRIEVANCE "WITHOUT PREJUDICE." IN ITS EXCEPTION THE UNION CONTENDS THE AWARD VIOLATES THE STATUTE BY INTERFERING WITH THE UNION'S STATUTORY RIGHT TO DESIGNATE ITS OWN AGENTS. THE UNION ALSO CONTENDS THE AWARD DENIES BARGAINING UNIT EMPLOYEES THEIR RIGHT TO CHOOSE THEIR OWN REPRESENTATIVE AND THAT THE AWARD IS ILLEGAL BECAUSE IT ALLOWS THE EMPLOYER TO REFUSE TO BARGAIN COLLECTIVELY. THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. THE ISSUE PRESENTED TO THE ARBITRATOR INVOLVED AN INTERPRETATION OF THE PROVISIONS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHICH ESTABLISHED WHO COULD FILE GRIEVANCES ON BEHALF OF EMPLOYEES IN THE BARGAINING UNIT UNDER THE NEGOTIATED GRIEVANCE PROCEDURE. IN ADDRESSING THIS ISSUE, THE ARBITRATOR DETERMINED THAT, UNDER THE TERMS OF THE AGREEMENT, LOCAL 1243 AND NOT LOCAL 1656 IS "THE UNION" RECOGNIZED FOR PURPOSES OF FILING LOCAL GRIEVANCES UNDER THE NATIONALLY NEGOTIATED COLLECTIVE BARGAINING AGREEMENT. IN ESSENCE THE UNION'S EXCEPTION CHALLENGES THE ARBITRATOR'S INTERPRETATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND HIS RULING THAT THE PROCEDURAL REQUIREMENTS FOR FILING A GRIEVANCE HAD NOT BEEN COMPLIED WITH. IT IS WELL ESTABLISHED THAT AN ARBITRATOR'S INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT IS NOT SUBJECT TO REVIEW. E.G., UNITED STATES ARMY MISSILE MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980). FURTHER, QUESTIONS OF WHETHER THERE HAS BEEN COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF A NEGOTIATED GRIEVANCE PROCEDURE ARE QUESTIONS FOR RESOLUTION BY AN ARBITRATOR. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA, GEORGIA AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1907, 5 FLRA NO. 36(1981). THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE FOREGOING REASONS, THE UNION'S EXCEPTION IS DENIED. ISSUED, WASHINGTON, D.C., JANUARY 4, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ 5 U.S.C. SEC. 7122(A) PROVIDES: (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT-- (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES OR REGULATIONS. /2/ IN ITS OPPOSITION THE AGENCY ASSERTS THAT THE UNION'S EXCEPTIONS, WHICH WERE FILED BY THE UNION'S NATIONAL OFFICE, SHOULD BE DISMISSED BECAUSE SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS STATES THAT "(E)ITHER PARTY TO ARBITRATION . . . MAY FILE AN EXCEPTION TO AN ARBITRATOR'S AWARD" AND THAT ONLY THE LOCAL, AND NOT THE NATIONAL OFFICE, WAS A "PARTY" TO THIS ARBITRATION. HOWEVER, THE AUTHORITY FINDS THE EXCEPTION IN THIS CASE TO HAVE BEEN PROPERLY FILED BY THE NATIONAL OFFICE ON BEHALF OF ITS AFFILIATED LOCAL AND IN ACCORDANCE WITH PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. /3/ ACCORDING TO THE ARBITRATOR, THIS AGREEMENT IS BETWEEN THE IMMIGRATION AND NATURALIZATION SERVICE AND THE NATIONAL COUNCIL OF IMMIGRATION AND NATURALIZATION SERVICE LOCALS, AN AFFILIATE OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES. INS IS ORGANIZED INTO REGIONAL OFFICES WHICH ARE FURTHER DIVIDED INTO DISTRICTS. /4/ ACCORDING TO THE ARBITRATOR, LOCAL 1243 WAS GRANTED RECOGNITION AS THE BARGAINING REPRESENTATIVE FOR ALL INS EMPLOYEES WITHIN THE SAN ANTONIO DISTRICT (WITH CERTAIN EXCEPTIONS NOT MATERIAL TO THIS CASE) IN 1968 AND HAD BEEN CONTINUOUSLY RECOGNIZED BY INS AS THE UNION'S REPRESENTATIVE AT THE DISTRICT LEVEL SINCE THAT DATE.