Immigration and Naturalization Service and AFGE Local 1656 (Authority decision, January 4, 1982)

Final FLRA decision. This is a final order of the Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves a grievance and does not state that it involves an unfair labor practice.

Plain-English summary

AFGE Local 1656 filed a safety grievance for employees in the INS San Antonio district. An arbitrator held that the national agreement recognized Local 1243, not Local 1656, to file district grievances and dismissed the case without prejudice. Local 1656 argued that the ruling interfered with union representation rights. The Authority denied its exception, treating the issue as the arbitrator's interpretation of the parties' agreement and grievance procedure.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance dismissal without prejudice upheld.
• Key point: The agreement identified which local could invoke arbitration for San Antonio employees.

Full text (FLRA public release)

[ 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.