Department of the Army, 83rd United States Army Reserve Command and American Federation of Government Employees, Council of Locals No. 213 and Local 3158 (Authority decision, January 19, 1983)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Army Reserve Command refused to attend arbitration of an employee termination grievance after the arbitrator decided to hear arbitrability and the merits on the same day. The Authority decided the transferred case on a stipulated record. It held that the Army could not refuse to participate in the negotiated arbitration process because it wanted separate hearings. It found a statutory violation and ordered the Army to proceed to arbitration on request and post a notice.

Decision snapshot

• Authority: Unfair labor practice review under 5 U.S.C. § 7118.
• Outcome: Unfair labor practice found; Army ordered to proceed to arbitration.
• Key point: A party could not cancel negotiated arbitration because the arbitrator declined to split the hearing.

Full text (FLRA public release)

[ v11 p55 ]

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).