National Labor Relations Board, Office of the General Counsel and National Labor Relations Board Union




[ v02 p506 ]
02:0506(69)AR
The decision of the Authority follows:


 2 FLRA No. 69
 
 MS. YVONNE T. DIXON
 LABOR RELATIONS COUNSEL
 DIVISION OF OPERATIONS MANAGEMENT
 NATIONAL LABOR RELATIONS BOARD
 1717 PENNSYLVANIA AVENUE, NW., ROOM 1057
 WASHINGTON, D.C. 20570
 
            RE:  NATIONAL LABOR RELATIONS BOARD, OFFICE OF THE
                 GENERAL COUNSEL AND NATIONAL LABOR RELATIONS BOARD
                 UNION (DUFF, ARBITRATOR), FLRC No. 78A-175
 
 DEAR MS. DIXON:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
 REVIEW OF THE ARBITRATOR'S AWARD AND THE UNION'S OPPOSITION TO IT FILED
 IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS CASE
 CONCERNS CERTAIN ARTICLES OF LOCAL SUPPLEMENTARY AGREEMENTS NEGOTIATED
 BETWEEN LOCAL 6 OF THE NATIONAL LABOR RELATIONS BOARD UNION (THE UNION)
 AND REGION 6 OF THE NATIONAL LABOR RELATIONS BOARD (THE AGENCY).  THE
 UNION AND THE AGENCY ARE PARTIES TO TWO NATIONAL AGREEMENTS:  ONE
 NATIONAL AGREEMENT COVERS FIELD OFFICE PROFESSIONAL EMPLOYEES AND THE
 OTHER NATIONAL AGREEMENT COVERS FIELD OFFICE CLERICAL EMPLOYEES.  EACH
 NATIONAL AGREEMENT PROVIDES-- SUBJECT TO EXPRESS RESTRICTIONS-- THAT
 LOCAL SUPPLEMENTARY AGREEMENTS MAY BE NEGOTIATED BETWEEN UNION LOCALS
 AND REGIONAL DIRECTORS.  PURSUANT TO THIS PROVISION, LOCAL 6 AND REGION
 6 ENTERED INTO A LOCAL SUPPLEMENTARY AGREEMENT TO EACH NATIONAL
 AGREEMENT.  AS REQUIRED BY THE NATIONAL AGREEMENTS, THESE LOCAL
 SUPPLEMENTARY AGREEMENTS WERE SUBMITTED TO THE GENERAL COUNSEL AND THE
 EXECUTIVE COMMITTEE OF THE UNION FOR APPROVAL.
 
    EACH NATIONAL AGREEMENT ONLY ALLOWS DISAPPROVAL OF LOCAL
 SUPPLEMENTARY AGREEMENTS THAT ARE NOT IN ACCORDANCE WITH THE
 RESTRICTIONS SET FORTH IN SECTION 2 OF ARTICLE XVIII /1/ OF EACH
 NATIONAL AGREEMENT.  THE BOARD'S GENERAL COUNSEL DISAPPROVED ONE ARTICLE
 OF THE LOCAL SUPPLEMENTARY AGREEMENT COVERING PROFESSIONAL EMPLOYEES
 AND
 THREE ARTICLES OF THE LOCAL SUPPLEMENTARY AGREEMENT COVERING CLERICAL
 EMPLOYEES.  TWO OF THE DISAPPROVED ARTICLES WERE DISAPPROVED AS CONTRARY
 TO SECTION 11(B) AND SECTION 12(B) OF E.O. 11491, AS AMENDED, AS WELL AS
 IN CONFLICT WITH THE NATIONAL AGREEMENT.  ACCORDINGLY, THE UNION SOUGHT
 A NEGOTIABILITY DETERMINATION FROM THE FEDERAL LABOR RELATIONS COUNCIL
 AS TO THESE TWO ARTICLES.
 
    IN ITS DECISION ON THE UNION'S NEGOTIABILITY APPEAL, THE COUNCIL
 OBSERVED THAT WHILE SECTION 11(C)(4) /2/ OF THE ORDER PERMITS AN APPEAL
 TO THE COUNCIL BASED ON A UNION'S DISAGREEMENT WITH AN AGENCY HEAD'S
 DETERMINATION THAT PROPOSALS VIOLATE THE ORDER, IT DOES NOT PROVIDE FOR
 AN APPEAL TO THE COUNCIL TO RESOLVE AN ISSUE WHICH INVOLVES
 INTERPRETATION OF A CONTROLLING NATIONAL AGREEMENT.  MOREOVER, THE
 COUNCIL STATED THAT WHEN A NEGOTIABILITY DISPUTE INVOLVES BOTH SECTION
 11(C)(1) MATTERS, PERTAINING TO THE INTERPRETATION OF A CONTROLLING
 AGREEMENT AT A HIGHER AGENCY LEVEL, AND 11(C)(4) MATTERS, THE PARTIES
 MUST FIRST RESOLVE THE ISSUE AS TO THE CONTROLLING AGREEMENT.
 THEREFORE, THE COUNCIL RULED THAT THE UNION'S APPEAL UNDER SECTION
 11(C)(4) WAS PREMATURE.  ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
 NEGOTIABILITY APPEAL BUT WITHOUT PREJUDICE TO ITS RENEWAL SHOULD IT BE
 APPROPRIATELY DETERMINED THAT ANY OF THE DISAPPROVED ARTICLES WERE
 CONSISTENT WITH THE NATIONAL AGREEMENT.  /3/ THEREAFTER, PURSUANT TO THE
 PROCEDURES OF THE NATIONAL AGREEMENT AND IN ACCORDANCE WITH THE
 DIRECTIONS OF THE COUNCIL, THE PARTIES PROCEEDED TO ARBITRATION.  AS
 STATED BY THE ARBITRATOR, THE ISSUE BEFORE HIM WAS:
 
    DOES THE REFUSAL OF THE GENERAL COUNSEL TO APPROVE CERTAIN PROVISIONS
 OF THE SUPPLEMENTARY
 
    AGREEMENTS COVERING FIELD OFFICE PROFESSIONAL AND CLERICAL EMPLOYEES
 IN REGION SIX CONSTITUTES
 
    A VIOLATION OF ARTICLE XVIII OF THE NATIONAL AGREEMENTS?
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR DISCUSSED THE
 DISAPPROVED ARTICLES BY SUBJECT MATTER.  THE ARBITRATOR FIRST CONSIDERED
 THE SUBJECT OF EMPLOYEE COUNSELING.  THE AGENCY HAD DISAPPROVED THE
 EMPLOYEE COUNSELING ARTICLE OF BOTH LOCAL SUPPLEMENTARY AGREEMENTS.  THE
 BASIS OF THE AGENCY'S REJECTION HAD BEEN THAT THE COUNSELING INTERVIEWS
 WERE A GUISE FOR AN APPRAISAL SYSTEM WHICH MODIFIED AND CONFLICTED WITH
 THE COMPREHENSIVE APPRAISAL SYSTEM PRESCRIBED BY THE NATIONAL
 AGREEMENTS.  HOWEVER, THE ARBITRATOR FOUND THAT THE ARTICLES DID NOT
 CONFLICT WITH ANY PROVISION OF THE APPLICABLE NATIONAL AGREEMENT.
 THEREFORE, IN SEC. 1 OF HIS AWARD, THE ARBITRATOR HELD THAT THE GENERAL
 COUNSEL'S REFUSAL TO APPROVE THE EMPLOYEE COUNSELING ARTICLES VIOLATED
 THE APPLICABLE NATIONAL AGREEMENT.
 
    THE ARBITRATOR NEXT CONSIDERED THE CLERICAL ARTICLE OF THE LOCAL
 SUPPLEMENTARY AGREEMENT COVERING CLERICAL EMPLOYEES.  /4/ THE ARBITRATOR
 IN CERTAIN RESPECTS AGREED WITH THE AGENCY THAT PROVISIONS OF THE
 ARTICLE MODIFIED OR CONFLICTED WITH THE NATIONAL AGREEMENT.
 ACCORDINGLY, HE ORDERED THE "PROVIDED FURTHER" CLAUSE OF SECTION 2
 DELETED.  HE ALSO ORDERED THE DELETION OF THE WORDS "EQUAL OR
 HIGHER-GRADED" FROM SECTION 6.  HOWEVER, WITH THESE DELETIONS, HE HELD
 THAT NO PROVISION OF THE ARTICLE CONFLICTED WITH THE NATIONAL AGREEMENT
 AND THAT ALL REQUIREMENTS OF THE NATIONAL AGREEMENT FOR LOCAL
 SUPPLEMENTARY AGREEMENTS WERE FULLY SATISFIED.  THUS, IN SEC. 2 OF HIS
 AWARD, HE DIRECTED THAT THE GENERAL COUNSEL APPROVE THE ARTICLE AS
 AMENDED.
 
    THE AGENCY REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF SEC. 1 AND SEC. 2 OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS FOUR
 EXCEPTIONS WHICH ARE DISCUSSED BELOW.  /5/ THE UNION FILED AN
 OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS.
 
    IN ITS FIRST EXCEPTION TO THE ARBITRATOR'S AWARD, THE AGENCY ASSERTS
 THAT SEC. 1 OF THE AWARD, FINDING THAT THE DISAPPROVAL OF THE EMPLOYEE
 COUNSELING ARTICLES VIOLATED THE RESPECTIVE NATIONAL AGREEMENTS, IS
 ARBITRARY AND UNREASONABLE.  IN ITS SECOND EXCEPTION TO THE AWARD, THE
 AGENCY ASSERTS THAT SEC. 2 OF THE AWARD, FINDING THAT THE CLERICAL
 BACKUP ARTICLE WITH SPECIFIED DELETIONS WAS FULLY CONSISTENT WITH THE
 NATIONAL AGREEMENT AND DIRECTING ITS APPROVAL AS AMENDED, IS ARBITRARY,
 UNREASONABLE, AND CONTRARY TO LAW.  HOWEVER, THE AGENCY CITES NO
 SPECIFIC LAW IN SUPPORT OF THIS EXCEPTION.  IN SUPPORT OF BOTH
 EXCEPTIONS, THE AGENCY ARGUES THAT THE ARBITRATOR ACTED ARBITRARILY AND
 UNREASONABLY IN CONCLUDING THAT THESE ARTICLES WERE WITHIN THE
 RESTRICTIONS OF THE APPLICABLE NATIONAL AGREEMENT AND SHOULD THEREFORE
 BE APPROVED.
 
    AS TO THE AGENCY'S FIRST AND SECOND EXCEPTIONS, THE AGENCY'S
 ASSERTIONS THAT SEC. 1 AND SEC. 2 OF THE ARBITRATOR'S AWARD ARE
 ARBITRARY AND UNREASONABLE CONSTITUTE NOTHING MORE THAN DISAGREEMENT
 WITH THE ARBITRATOR'S INTERPRETATION OF THE VARIOUS NEGOTIATED
 AGREEMENTS.  AS IS WELL ESTABLISHED UNDER THE ORDER, A CHALLENGE TO AN
 ARBITRATOR'S INTERPRETATION OF A NEGOTIATED AGREEMENT FAILS TO STATE A
 GROUND ON WHICH A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD MAY BE
 GRANTED.  /6/ LIKEWISE, AN ASSERTION THAT AN ARBITRATOR'S AWARD VIOLATES
 LAW BUT WITHOUT CITING ANY LAW TO SUPPORT THAT ASSERTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.
 /7/ ACCORDINGLY, NEITHER THE AGENCY'S FIRST EXCEPTION NOR THE AGENCY'S
 SECOND EXCEPTION TO THE ARBITRATOR'S AWARD PROVIDES A BASIS FOR
 ACCEPTANCE OF ITS PETITION FOR REVIEW UNDER SECTION 2411.32 OF THE RULES
 OF PROCEDURE AS AMENDED.
 
    IN ITS THIRD EXCEPTION TO THE AWARD, THE AGENCY ASSERTS THAT SEC. 2
 OF THE AWARD, FINDING THAT THE CLERICAL BACKUP ARTICLE WITH SPECIFIED
 DELETIONS WAS FULLY CONSISTENT WITH THE NATIONAL AGREEMENT AND DIRECTING
 ITS APPROVAL AS AMENDED, VIOLATES SECTION 12(B) OF THE ORDER.  IN
 SUPPORT THE AGENCY ARGUES THAT IN FINDING THAT THE CLERICAL BACKUP
 ARTICLE WAS IMPROPERLY DISAPPROVED BY THE GENERAL COUNSEL, THE
 ARBITRATOR FAILED TO ADEQUATELY CONSIDER WHETHER THE PROVISIONS WERE IN
 CONFLICT WITH SECTION 12(B) OF THE ORDER.  IN THIS RESPECT THE AGENCY
 CLAIMS THAT THE ARTICLE PERTAINS TO PROHIBITED SUBJECTS OF BARGAINING
 UNDER SECTION 12(B)(1), 12 (B)(2), AND 12(B)(5) OF THE ORDER /8/ AND
 COULD NOT HAVE BEEN PROPERLY APPROVED.
 
    IN ITS FOURTH EXCEPTION TO THE AWARD, THE AGENCY ASSERTS THAT SEC.  2
 OF THE AWARD VIOLATES SECTION 11(B) OF THE ORDER.  /9/ IN SUPPORT THE
 AGENCY ARGUES THAT IN FINDING THAT THE CLERICAL BACKUP ARTICLE WAS
 IMPROPERLY DISAPPROVED BY THE GENERAL COUNSEL, THE ARBITRATOR FAILED TO
 ADEQUATELY CONSIDER WHETHER THE PROVISIONS WERE IN CONFLICT WITH SECTION
 11(B) OF THE ORDER.  IN THIS RESPECT THE AGENCY CLAIMS THAT THE ARTICLE
 PERTAINS TO MATTERS ENUMERATED IN SECTION 11(B) AND COULD NOT HAVE BEEN
 PROPERLY APPROVED.
 
    ALTHOUGH THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD VIOLATES THE
 ORDER, THE AGENCY'S PETITION FAILS TO DESCRIBE THE FACTS AND
 CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTIONS THAT SEC. 2 OF THE
 AWARD VIOLATES SECTION 12(B) OR SECTION 11(B) OF THE ORDER.  IN THIS
 REGARD, THE AUTHORITY NOTES THAT THE PARTIES WENT TO ARBITRATION IN THIS
 CASE IN ACCORDANCE WITH THE DECISION OF THE FEDERAL LABOR RELATIONS
 COUNCIL IN THE NATIONAL LABOR RELATIONS BOARD UNION CASE, FLRC NO.
 77A-109, TO RESOLVE THE QUESTION OF WHETHER THE DISPUTED CLERICAL BACKUP
 ARTICLE IN THE SUPPLEMENTARY AGREEMENT CONFLICTED WITH THE CONTROLLING
 NATIONAL AGREEMENT.  IN THAT CASE THE COUNCIL POINTED OUT THAT THE
 QUESTION OF THE NEGOTIABILITY OF THE DISPUTED PROVISIONS COULD BE RAISED
 "IN A PETITION DULY FILED WITH THE COUNCIL AFTER IT IS RESOLVED . . .
 THAT (THE) PROVISIONS DO NOT CONFLICT WITH (THE) CONTROLLING AGREEMENT."
 THUS, THE ISSUE BEFORE THE ARBITRATOR IN THIS CASE WAS:
 
    DOES THE REFUSAL OF THE GENERAL COUNSEL TO APPROVE CERTAIN PROVISIONS
 OF THE SUPPLEMENTARY
 
    AGREEMENTS . . . CONSTITUTE A VIOLATION OF ARTICLE XVIII OF THE
 NATIONAL AGREEMENTS?
 
    IT APPEARS THAT IT WAS PRECISELY THIS ISSUE ALONE THAT THE ARBITRATOR
 RESOLVED WHEN, IN SEC. 2 OF HIS AWARD, HE FOUND THAT THE CLERICAL BACKUP
 ARTICLE WITH SPECIFIED DELETIONS DID NOT CONFLICT WITH THE NATIONAL
 AGREEMENT.  NOTHING IN THE AGENCY'S PETITION FOR REVIEW INDICATES THAT
 THE ISSUE BEFORE THE ARBITRATOR OR THE ARBITRATOR'S AWARD CONCERNED
 WHETHER THE CLERICAL BACKUP ARTICLE PERTAINED TO ANY MATTERS ENUMERATED
 IN EITHER SECTION 12(B) OR SECTION 11(B) OF THE ORDER.  FURTHER, IN HIS
 AWARD, APPARENTLY RESPONDING TO THE AGENCY'S ARGUMENTS THAT CERTAIN
 PROVISIONS OF THE CLERICAL BACKUP ARTICLE WERE NONNEGOTIABLE UNDER THE
 ORDER, THE ARBITRATOR RESPONDED:
 
    (T)HE FEDERAL LABOR RELATIONS COUNCIL IS THE PROPER FORUM TO
 DETERMINE THAT QUESTION.  OUR
 
    DECISION WILL BE DIRECTED PRIMARILY TO THE ISSUE WHETHER THE NATIONAL
 AGREEMENTS HAVE BEEN
 
    VIOLATED.
 
    IN VIEW OF THESE CIRCUMSTANCES, THE AGENCY HAS FAILED TO DEMONSTRATE
 IN WHAT MANNER THE AWARD VIOLATES EITHER SECTION 12(B) OR SECTION 11(B)
 OF THE ORDER.  IT APPEARS THAT IN SEC. 2 OF HIS AWARD, THE ARBITRATOR
 ONLY DETERMINED, ON THE BASIS OF HIS INTERPRETATION OF THE NEGOTIATED
 AGREEMENTS, THAT THE CLERICAL BACKUP ARTICLE WAS CONSISTENT WITH THE
 NATIONAL AGREEMENT.  THE AGENCY DOES NOT DEMONSTRATE THAT THE ARBITRATOR
 MEANT ANY MORE THAN THAT WHEN IN SEC. 2 OF HIS AWARD, HE DIRECTED THE
 ARTICLE APPROVED.
 
    FOR THESE REASONS THE AGENCY'S PETITION FAILS TO PRESENT THE FACTS
 AND CIRCUMSTANCES NECESSARY TO DEMONSTRATE THAT IN FINDING THE CLERICAL
 BACKUP ARTICLE CONSISTENT WITH THE NATIONAL AGREEMENT, THE ARBITRATOR
 RENDERED AN AWARD VIOLATIVE OF EITHER SECTION 12(B) OR SECTION 11(B) OF
 THE ORDER.  THEREFORE, NEITHER THE AGENCY'S THIRD EXCEPTION NOR ITS
 FOURTH EXCEPTION PROVIDES A BASIS FOR ACCEPTANCE OF ITS PETITION FOR
 REVIEW UNDER SECTION 2411.2 OF THE RULES OF PROCEDURE AS AMENDED.  /10/
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  /11/ LIKEWISE, THE AGENCY'S REQUEST
 FOR A STAY IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF
 SECTION 2411.47(F) OF THE OPERATIVE RULES.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    CC:  W. G. KOCOL
 
    NLRBU
 
    /1/ ARTICLES XVIII, SUPPLEMENTAL AND LOCAL SUPPLEMENTARY AGREEMENTS,
 SECTION 2 OF EACH NATIONAL AGREEMENT PROVIDES:
 
    SECTION 2.  LOCAL SUPPLEMENTARY AGREEMENTS MAY BE NEGOTIATED BETWEEN
 LOCAL UNIONS AND
 
    REGIONAL DIRECTORS AND THE OFFICER-IN-CHARGE IN SUBREGION 38 (PEORIA,
 ILLINOIS).  ANY SUCH
 
    AGREEMENT SHALL BE SUBJECT TO THE APPROVAL OF THE GENERAL COUNSEL AND
 THE EXECUTIVE COMMITTEE
 
    OF THE UNION AND SHALL BE SUBJECT TO THE RESTRICTIONS LISTED BELOW:
 
    (A) ALL MATTERS COVERED MUST BE WITHIN THE ADMINISTRATIVE AUTHORITY
 OF THE REGIONAL
 
    DIRECTOR;
 
    (B) ONLY LOCAL CONDITIONS AFFECTING THE EMPLOYEES OF THAT REGION WILL
 BE COVERED;
 
    (C) PROVISIONS NEGOTIATED MAY NOT MODIFY OR BE IN CONFLICT WITH ANY
 PROVISION OF THIS
 
    AGREEMENT OR ANY SUPPLEMENT HERETO;  NOR MAY SUCH PROVISIONS BE IN
 CONFLICT WITH APPLICABLE
 
    LAW /1A/ AND
 
    (D) PROVISIONS MUST BE CONSISTENT WITH THE CERTIFICATION OF THE
 UNION.
 
    /1A/ ANY DETERMINATION BY A PARTY TO THIS AGREEMENT THAT A PROVISION
 SHOULD BE REJECTED PURSUANT TO THIS SUBSECTION WILL NOT BE MADE UNTIL
 THE OTHER PARTY HAS BEEN NOTIFIED AND BEEN GIVEN AN OPPORTUNITY TO
 CONSULT ON THE MATTER.
 
    /2/ SECTION 11 OF THE ORDER PROVIDES IN PERTINENT PART:
 
    SEC. 11.  NEGOTIATION OF AGREEMENTS.
 
   .          .          .          .
 
 
    (C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
 WHETHER A PROPOSAL IS
 
    CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
 THEREFORE NOT
 
    NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
 
    (1) AN ISSUE WHICH INVOLVES INTERPRETATION OF A CONTROLLING AGREEMENT
 AT A HIGHER AGENCY
 
    LEVEL IS RESOLVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT,
 OR, IF NONE, UNDER AGENCY
 
    REGULATIONS;
 
   .          .          .          .
 
 
    (4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
 WHEN--
 
    (I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
 WOULD VIOLATE
 
    APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
 AGENCY, OR THIS ORDER, OR
 
    (II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
 AGENCY HEAD, VIOLATE
 
    APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
 AGENCY, OR THIS ORDER, OR ARE
 
    NOT OTHERWISE APPLICABLE TO BAR NEGOTIATIONS UNDER PARAGRAPH (A) OF
 THIS SECTION.
 
    /3/ NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 6 AND NATIONAL LABOR
 RELATIONS BOARD, REGION 6, PITTSBURGH, PENNSYLVANIA, FLRC NO.
 77A-109(APR. 12, 1978), REPORT NO.  149.
 
    /4/ ARTICLE VI, THE CLERICAL BACKUP ARTICLE, PROVIDES:
 
    SECTION 1.  AS DESCRIBED FURTHER IN THIS ARTICLE, THE FOLLOWING
 CLERICAL POSITIONS SHALL
 
    HAVE CLERICAL BACKUPS:
 
    SECRETARY TO REGIONAL ATTORNEY
 
    SECRETARY TO ASSISTANT TO THE REGIONAL DIRECTOR
 
    SECRETARY RESPONSIBLE FOR PREPARATION OF R CASE DECISIONS
 
    COMPLIANCE CLERK
 
    ELECTION CLERK
 
    SECTION 2.  THERE WILL BE TWO (2) CLERICAL BACKUPS FOR EACH POSITION
 REFERRED TO IN SECTION
 
    1 ABOVE, PROVIDED THAT:
 
    A) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT AT ITS DISCRETION FROM
 ASSIGNING BACKUPS TO ANY
 
    CLERICAL POSITION NOT DESCRIBED IN SECTION 1 ABOVE,
 
    B) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT IN ITS DISCRETION FROM
 ASSIGNING MORE THAN TWO
 
    CLERICALS TO SERVE AS BACKUPS,
 
    C) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT IN ITS DISCRETION FROM
 ASSIGNING A CLERICAL
 
    EMPLOYEE TO ACT AS A BACKUP ON MORE THAN ONE POSITION REQUIRING
 BACKUPS, AND
 
    D) NOTHING HEREIN SHALL REQUIRE MANAGEMENT TO ASSIGN TEN SEPARATE
 CLERICAL EMPLOYEES TO
 
    SERVE AS BACKUPS FOR THOSE POSITIONS REFERRED TO IN SECTION 1 ABOVE:
 
    PROVIDED FURTHER, THAT NO CLERICAL EMPLOYEE OCCUPYING ANY OF THE
 POSITIONS DESCRIBED IN SECTION 1 ABOVE SHALL BE ASSIGNED TO ACT AS A
 BACKUP FOR ANY OF THE POSITIONS DESCRIBED IN SECTION 1 ABOVE, UNLESS AND
 UNTIL TWO OTHER CLERICAL EMPLOYEES ARE ASSIGNED AS BACKUPS FOR THAT
 POSITION.
 
    SECTION 3.  THE SELECTION, RETENTION, ASSIGNMENT AND UTILIZATION OF
 THOSE INDIVIDUALS SELECTED AS BACKUPS SHALL BE SOLELY DETERMINED BY
 MANAGEMENT.
 
    SECTION 4.  CLERICAL EMPLOYEES IN THE REGIONAL OFFICE, WHO HAVE
 SATISFACTORILY COMPLETED THEIR PROBATIONARY PERIOD, MAY APPLY FOR
 TRAINING IN ANY CLERICAL POSITION UTILIZING BACKUPS.  CONSISTENT WITH
 AND SUBJECT TO THE OPERATING NEEDS AND THE EFFICIENCY OF THE REGIONAL
 OFFICE, APPLICATIONS FOR TRAINING AS A BACKUP, AS DEFINED ABOVE, MAY BE
 APPROVED BY MANAGEMENT.
 
    SECTION 5.  CONSISTENT WITH AND SUBJECT TO THE OPERATING NEEDS AND
 THE EFFICIENCY OF THE REGIONAL OFFICE, CLERICAL EMPLOYEES, IF THEY SO
 REQUEST, WILL BE GIVEN ASSISTANCE IN THEIR OWN JOBS WHILE TRAINING IN OR
 PERFORMING THE DUTIES OF ANOTHER POSITION.
 
    SECTION 6.  NO EMPLOYEE CAN REJECT MANAGEMENT ASSIGNMENT AS A BACKUP
 TO ANY EQUAL OR HIGHER-GRADED POSITION.
 
    /5/ IN SEC. 3 OF HIS AWARD, THE ARBITRATOR HELD THAT THE GENERAL
 COUNSEL'S DISAPPROVAL OF THE BRIDGE PROGRAM ARTICLE OF THE LOCAL
 SUPPLEMENTARY AGREEMENT COVERING CLERICAL EMPLOYEES WAS CONTRARY TO
 THE
 NATIONAL AGREEMENT.  HOWEVER, THE AGENCY DOES NOT SEEK REVIEW OF SEC. 3
 OF THE ARBITRATOR'S AWARD.  ACCORDINGLY, THAT PORTION OF THE AWARD IS
 NOT BEFORE THE AUTHORITY IN THIS CASE.
 
    /6/ E.G., COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AND
 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION FIELD OPERATIONS (MARSHALL, ARBITRATOR), FLRC NO.
 78A-15(MAY 25, 1978), REPORT NO. 150.
 
    /7/ DEPARTMENT OF THE AIR FORCE, 4392D AEROSPACE SUPPORT GROUP (SAC)
 AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 1001
 (VANDENBERG AIR FORCE BASE, CALIFORNIA) (POLLARD, ARBITRATOR), 5 FLRC
 327 (FLRC NO. 77A-24(MAY 4, 1977), REPORT NO. 125).
 
    /8/ SECTION 12(B) OF THE ORDER PROVIDES IN PERTINENT PART:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENT.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
    (1) TO DIRECT EMPLOYEES OF THE AGENCY;
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE AGENCY
 
    . . . ;
 
   .          .          .          .
 
 
    (5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH (AGENCY)
 OPERATIONS ARE TO BE
 
    CONDUCTED(.)
 
    /9/ SECTION 11(B) OF THE ORDER PROVIDES IN PERTINENT PART:
 
    (T)HE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
 RESPECT TO THE MISSION OF
 
    AN AGENCY;  ITS BUDGET;  ITS ORGANIZATION;  THE NUMBER OF EMPLOYEES;
 AND THE NUMBERS, TYPES, AND
 
    GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
 WORK PROJECT OR TOUR OF
 
    DUTY . . .
 
    /10/ THE AUTHORITY'S DECISION HEREIN IS LIMITED TO THE QUESTION OF
 WHETHER THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PROVIDES A BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF
 THE RULES OF PROCEDURE.  AS TO THE QUESTION OF THE NEGOTIABILITY
 DETERMINATION WAS MADE UNDER THE PROVISIONS OF E.O. 11491, AS AMENDED,
 AND THAT NEITHER THE UNION NOR THE AGENCY HAS APPARENTLY CONSIDERED THE
 APPLICABILITY