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56 FLRA No. 73
American Federation of Government Employees, Local 3911 and U.S. Environmental Protection Agency Region II, New York, New York (Collins, Arbitrator), 0-AR- 3247 (Decided July 7, 2000)
The Arbitrator determined that a grievance challenging the Agency's ranking of candidates for a non-bargaining unit position was not arbitrable because the parties' collective bargaining agreement excluded grievances concerning employees or positions outside the unit from the negotiated grievance procedure. The Authority concluded that the Union failed to establish that the award was deficient under section 7122(a) of the Statute.
The Authority rejected the allegations that the award failed to draw its essence from the agreement and that the award was contrary to regulation, specifically 5 C.F.R. § 771.104(a)(2)(ii). However, the Authority noted that section 771.104(a)(2)(ii) is no longer in effect. The Union also argued that the award was contrary to law. The specific argument was that the scope of a negotiated grievance procedure is a permissive subject of bargaining, and, therefore, because the parties' agreement expired before the grievance was filed, the Union was not bound by any agreement to exclude the grievance in this case from the scope of the grievance procedure. The Authority noted that U.S. Court of Appeals for the District of Columbia affirmed that the scope of a negotiated grievance procedure is a mandatory subject of collective bargaining. The Authority stated that mandatory subjects of bargaining survive the expiration of the parties' agreement unless the parties agree otherwise. Here, because the scope of the parties' grievance procedure was a mandatory subject of bargaining, the provision survived the agreement's expiration. As such, the award was not contrary to law.