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11:0055(20)CA
The decision of the Authority follows:
11 FLRA No. 20
DEPARTMENT OF THE ARMY
83rd UNITED STATES ARMY RESERVE COMMAND,
COLUMBUS, OHIO
Respondent
and
COUNCIL OF LOCALS NO. 213, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3158,
AFL-CIO
Charging Party
Case No. 5-CA-997
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts and the parties' contentions, the Authority finds:
The stipulated issue presented is whether the Respondent, by refusing
to proceed to arbitration on a grievance involving the termination of a
unit employee unless the arbitrator first held a hearing on the question
of arbitrability, and then, if warranted, a separate hearing on the
merits of the grievance (i.e., a "bifurcated" hearing), has failed and
refused to comply with section 7121 of the Statute in violation of
section 7116(a)(8), and has refused to bargain in good faith with the
Union in violation of section 7116(a)(1) and (5).
The record indicates that, subsequent to the Charging Party's request
to proceed to arbitration under the parties' negotiated grievance
procedure, the parties jointly notified Arbitrator Kindig that he had
been selected by them to hear a grievance involving the termination of
employee Harold Frakes. Following a dispute between the parties and
presentation of their respective positions to Arbitrator Kindig as to
whether a bifurcated hearing should be conducted in this matter, the
arbitrator informed the parties by letter that he had scheduled the
arbitration hearing and that both the arbitrability issue and the merits
of the case would be heard on the same day. As a result of the
arbitrator's procedural determination, the Respondent notified the
arbitrator and the Charging Party in writing that it refused to
participate in the arbitration proceeding and, further, that it
considered the hearing cancelled. As a result, the hearing never took
place.
In Department of Labor, Employment Standards Administration/Wage and
Hour Division, Washington, D.C., 10 FLRA No. 60 (1982), the Authority
found a refusal by the Respondent to participate in arbitration
proceedings pursuant to a negotiated grievance procedure to be
inconsistent with section 7121 of the Statute and, therefore, violative
of section 7116(a)(1) and (8) of the Statute. In so finding, the
Authority concluded that while section 7121 stated that "arbitration . .
. may be invoked by either the exclusive representative or the agency,"
neither the language nor the legislative history of section 7121
provides a basis for excusing the other party from participating in
binding arbitration as the mechanism mandated by Congress in section
7121 for resolving grievances that are not satisfactorily settled at
earlier stages of the negotiated grievance procedure. It follows that
the Respondent herein, based on the reasons more fully set forth in
Department of Labor, failed to comply with the requirements of section
7121 /1/ and therefore violated section 7116(a)(1) and (8) of the
Statute. /2/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Department of the Army,
83rd United States Reserve Command, Columbus, Ohio, shall:
1. Cease and desist from:
(a) Unilaterally refusing or failing to proceed to arbitration
regarding a grievance filed by the Council of Locals No. 213, American
Federation of Government Employees, AFL-CIO and American Federation of
Government Employees, Local 3158, AFL-CIO, the employees' exclusive
representative, regarding the termination of a unit employee contrary to
the requirements of section 7121 of the Statute, 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 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 Council of Locals No. 213, American Federation of
Government Employees, AFL-CIO and American Federation of Government
Employees, Local 3158, AFL-CIO, involving the termination of a unit
employee.
(b) Post at its Columbus, Ohio facility, 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
Commanding Officer, Department of the Army, 83rd United States Army
Command, Columbus, Ohio, or his 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) Notify the Regional Director of Region V, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., January 19, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 refuse to proceed to arbitration regarding a grievance
filed by the exclusive representative of a unit of our employees,
Council of Locals No. 213, American Federation of Government Employees,
AFL-CIO and American Federation of Government Employees, Local 3158,
AFL-CIO, on September 3, 1980 concerning the termination of a unit
employee, contrary to the requirements of section 7121 of the Federal
Service Labor-Management Relations Statute, 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 Council of Locals No. 213, American Federation of
Government Employees, AFL-CIO and American Federation of Government
Employees, Local 3158, AFL-CIO, on September 3, 1980, involving the
termination of a unit employee.
(Agency or Activity)
Dated: . . . By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director, Region V, Federal Labor Relations Authority, whose
address is: Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois
60604, and whose telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ While the Respondent offered to pay the costs of the bifurcated
arbitration process if the arbitrator were to find in the first hearing
that the grievance was arbitrable, the Authority concludes that the
Respondent was not thereby relieved of its statutory obligation to
proceed to arbitration when the Union rejected the Respondent's offer as
inconsistent with the parties' agreement and the arbitrator thereafter
determined that the arbitrability issue and the merits of the grievance
would be decided in one hearing. Respondent was obligated to proceed to
arbitration, and if it was dissatisfied with the award it could have
filed exceptions thereto pursuant to section 7122 of the Statute.
/2/ In view of this conclusion, it is not necessary to consider
whether the Respondent's conduct also constituted a violation of section
7116(a)(5).