International Federation of Professional and Technical Engineers (Union) and Portsmouth Naval Shipyard (Activity) (Authority decision, March 24, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116; this decision does not decide one.

Plain-English summary

A union grieved Portsmouth Naval Shipyard’s filling of a supervisory position. The arbitrator found the grievance outside a contract procedure limited to bargaining-unit positions. The union argued that the later federal labor statute and an oral agreement automatically broadened the grievance procedure. The Authority held that existing procedures stayed in effect pending renegotiation and denied the exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7121, 5 U.S.C. § 7122(a).
• Outcome: The nonarbitrability award was upheld.
• Key point: The statute did not automatically expand an earlier contract’s grievance procedure.

Full text (FLRA public release)

[ v08 p251 ]

08:0251(54)AR

The decision of the Authority follows:

8 FLRA No. 54

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS
Union

and

PORTSMOUTH NAVAL SHIPYARD
Activity

Case No. O-AR-167

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR TIM BORNSTEIN FILED BY THE UNION UNDER SECTION 7122(A) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE AGENCY DID NOT FILE AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE OVER
THE ACTIVITY'S FILLING OF A CERTAIN SUPERVISORY POSITION. A GRIEVANCE
WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION. AFTER
THE ARBITRATION HEARING, THE PARTIES ADVISED THE ARBITRATOR THAT, PRIOR
TO SUBMISSION OF BRIEFS ON THE MERITS, THEY WOULD PREFER TO HAVE THE
ARBITRABILITY ISSUE THAT HAD BEEN RAISED BY THE ACTIVITY DECIDED FIRST.
WITH RESPECT TO THIS ISSUE, THE ARBITRATOR NOTED THAT "(T)HE UNION
READILY ACKNOWLEDGES THAT ITS CONTRACT AS WRITTEN AND EXECUTED IN 1978
DOES NOT APPLY TO SUPERVISORY POSITIONS." /1/ HOWEVER, THE UNION ARGUED
THAT FOLLOWING THE EFFECTIVE DATE OF THE STATUTE IN 1979, IT HAD ORALLY
AGREED WITH THE ACTIVITY THAT THEIR AGREEMENT WOULD BE READ IN A MANNER
CONSISTENT WITH THE PROVISIONS OF THE STATUTE. IN THIS REGARD THE UNION
CONTENDED THAT UNDER THE STATUTE, PARTICULARLY ITS PROVISIONS RELATING
TO BROAD SCOPE GRIEVANCE PROCEDURES, THE GRIEVANCES IN THIS CASE WERE
NOW GRIEVABLE UNDER THE PARTIES' AGREEMENT. THE ARBITRATOR REJECTED
THIS ARGUMENT, FINDING THAT NOTHING IN THE STATUTE REQUIRED AN AGENCY TO
ENLARGE ITS BARGAINING UNIT TO INCLUDE SUPERVISORY POSITIONS AND THAT
THE STATUTE DID NOT, WITH CERTAIN SPECIFIC EXCEPTIONS, CHANGE OR REVISE
AGREEMENTS NEGOTIATED BEFORE ITS PASSAGE. THEREFORE, HE FOUND THE
GRIEVANCE NONARBITRABLE.

EACH OF THE UNION'S THREE EXCEPTIONS TO THE AWARD IS BASED ON ONE
UNDERLYING PREMISE, I.E., ARTICLE 23 OF THE PARTIES' AGREEMENT, WHICH
LIMITS MERIT PROMOTION GRIEVANCES TO UNIT POSITIONS, WAS RENDERED
"OBSOLETE" BY THE STATUTE AND, PURSUANT TO THE PARTIES' ORAL AGREEMENT
TO ABIDE BY THE STATUTE, THE SCOPE OF THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE AUTOMATICALLY BECAME THAT REFLECTED BY SECTION 7121 OF THE
STATUTE. THE UNION ARGUES THAT, BY NOT RECOGNIZING THIS, THE ARBITRATOR
EXCEEDED HIS AUTHORITY, AND HIS AWARD IS CONTRARY TO LAW AND DOES NOT
DRAW ITS ESSENCE FROM THE AGREEMENT.

THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. THE AUTHORITY ADDRESSED THE IMPACT OF SECTION 7121 OF THE
STATUTE ON THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES IN AGREEMENTS
ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE STATUTE IN
INTERPRETATION AND GUIDANCE, CASE NO. O-PS-2, 2 FLRA 273 (1979). IN
THAT CASE THE AUTHORITY HELD:

(W)HERE EITHER PARTY TO AN EXISTING NEGOTIATED AGREEMENT OBJECTS TO
THE RENEWAL OR

CONTINUATION OF THE EXISTING NEGOTIATED GRIEVANCE PROCEDURES, SECTION
7121 OF THE STATUTE

REQUIRES THAT THE PARTIES RENEGOTIATE THE SCOPE OF THEIR GRIEVANCE
PROCEDURES IN COMPLIANCE

WITH THE PROVISIONS OF THAT SECTION. UNDER SECTION 7121, THE
GRIEVANCE PROCEDURES SO

RENEGOTIATED WOULD COVER ALL MATTERS WHICH MIGHT LAWFULLY BE
SUBMITTED TO THE NEGOTIATED

GRIEVANCE PROCEDURES, EXCEPT THOSE MATTERS EXPRESSLY EXCLUDED BY
AGREEMENT OF THE

PARTIES. PENDING SUCH RENEGOTIATION, THE CURRENT AGREEMENT MUST
REMAIN IN EFFECT. 2 FLRA

273, 279. IN REACHING THIS CONCLUSION, THE AUTHORITY SPECIFICALLY
NOTED THAT "MERE OBJECTION BY A PARTY TO THE CONTINUATION OF EXISTING
NEGOTIATED GRIEVANCE PROCEDURES WOULD NOT, PER SE, EXTEND THE SCOPE OF
THE EXISTING PROCEDURES, SINCE SECTION 7121 CONCERNS THE SCOPE OF
GRIEVANCE PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES." 2 FLRA
273, 278 N.6. (EMPHASIS IN ORIGINAL). THUS, CONTRARY TO THE UNION'S
ASSERTIONS, THE ENACTMENT OF THE STATUTE AND THE UNION'S AGREEMENT WITH
THE ACTIVITY TO READ THEIR COLLECTIVE BARGAINING AGREEMENT IN A MANNER
CONSISTENT WITH THE PROVISIONS OF THE STATUTE DID NOT AUTOMATICALLY
BROADEN THE SCOPE OF THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE SO AS
TO MAKE THE OTHERWISE NONARBITRABLE MATTERS INVOLVED IN THIS CASE
ARBITRABLE.

FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., MARCH 24, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE AGREEMENT PROVISION ALLEGED IN THE GRIEVANCE TO HAVE BEEN
VIOLATED IS ARTICLE 23, MERIT PROMOTION PROGRAM, WHICH PROVIDES IN PART
AS FOLLOWS:

SECTION 1. THE PROVISIONS OF THIS ARTICLE APPLY ONLY TO THE FILLING
OF UNIT POSITIONS WHEN

USING DULY ESTABLISHED MERIT PROMOTION PROCEDURES WHICH HAVE BEEN
ESTABLISHED IN ACCORDANCE

WITH APPLICABLE RULES AND REGULATIONS. THE PROVISIONS OF THE
SHIPYARD MERIT PROMOTION

PROGRAM, AS IT RELATES TO UNIT POSITIONS, ARE DESIGNED TO ASSURE
SELECTION OF THE BEST

QUALIFIED PERSON AVAILABLE. . . .