Headquarters, Fort Sam Houston, Department of the Army and American Federation of Government Employees Local 2154 (Authority decision, August 31, 1984)

Final FLRA decision. The Authority denies exceptions to an arbitration award about union steward appointments. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator sustained Fort Sam Houston management's grievance that AFGE Local 2154 had not followed the labor agreement's limits on appointing union stewards. The union argued that management filed its grievance late and that the steward provisions stopped binding it when the agreement expired. The Authority found no basis to disturb the arbitrator's timeliness ruling. It held that the union could end a permissive bargaining practice after expiration, but the arbitrator had found the parties continued the agreement pending renegotiation and the union had not elected to end this practice. The Authority denied the union's exceptions and left the award in place.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; award sustaining management's grievance upheld.
• Key point: Expiration of the agreement did not itself end a steward designation practice that the parties continued to observe.

Full text (FLRA public release)

[ v15 p974 ]

15:0974(181)AR

The decision of the Authority follows:

15 FLRA No. 181

HEADQUARTERS, FORT SAM
HOUSTON, DEPARTMENT OF
THE ARMY
Activity

and

LOCAL 2154, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

Case No. O-AR-261

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Don J. Harr filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition. /1/

The issues submitted to the Arbitrator in this case questioned whether management's grievance was timely filed and whether the Union had complied with the terms of the parties' collective bargaining agreement regarding the appointment and number of union stewards. The Arbitrator first determined that the grievance was timely filed. On the merits the Arbitrator as his award sustained the grievance essentially finding that the Union had not complied with the terms of the agreement.

In its first exception the Union essentially contends that the award is deficient because, contrary to the Arbitrator's determination, the grievance was not timely filed. The Union's exception, however, constitutes nothing more than disagreement with the Arbitrator's determination with respect to the procedural arbitrability of the grievance, and it is well established that such disagreement provides no basis for finding the award deficient. E.g., Department of the Army, Fort Drum, New York and National Association of Government Employees, Local R2-61, 10 FLRA 22 (1982).

In its other exceptions the Union essentially contends that the Arbitrator's finding that it failed to comply with the terms of the agreement in dispute is contrary to the Statute. Primarily, the Union maintains that the parties' collective bargaining agreement had expired before the grievance in this case and that under the Statute the Union consequently was not longer bound by the provisions of the agreement relating to the appointment and number of stewards.

The Authority concludes that the Union's exceptions provide no basis for finding the award deficient. In Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89 (1984), the Authority expressly held that following the expiration of a collective bargaining agreement, either party to that agreement may elect not to be bound by a practice embodied in any contract provision which relates to a matter that is outside the required scope of bargaining under the Statute, i.e., is a permissive subject of bargaining. Id. at 5. In this respect the Authority further has uniformly held that bargaining over a union's designation of its own representatives when dealing with agency management in the performance of its responsibilities under the Statute is permissive in nature and outside the required scope of bargaining but that a union may elect to agree to a contract provision as to such designations. E.g., Department of Transportation, Federal Aviation Administration, San Diego, California, 15 FLRA No. 86 (1984). Thus, in terms of this case, the Union following the expiration of the agreement retained the right under the Statute to terminate the practice of steward designation embodied in the contract provision of the parties' agreement. However, in this regard the Arbitrator specifically stated that although the agreement had expired, the agreement "has been recognized by the parties as remaining in full force and effect pending renegotiation." Consequently, with the Arbitrator finding no election by the Union not to be bound by the steward designation practice, it has not been established that the award sustaining the grievance that the Union failed to comply with the terms of the agreement is in any manner contrary to the Statute.

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ In its opposition, the Agency also alleges that the Union's exceptions should be dismissed because of the Union's failure to comply with various procedural requirements of the Authority's Rules and Regulations. However, the Authority finds no basis for dismissing the exceptions as procedurally deficient.