13:0074(18)AR - Action and AFSCME Local 2023 -- 1983 FLRAdec AR



[ v13 p74 ]
13:0074(18)AR
The decision of the Authority follows:


 13 FLRA No. 18
 
 ACTION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 STATE, COUNTY AND
 MUNICIPAL EMPLOYEES,
 LOCAL 2023
 Union
 
                                            Case No. O-AR-345
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Joseph M. Sharnoff filed by the Union under section 7122(a)
 of the Federal Service Labor-Management Relations Statute (the Statute)
 and part 2425 of the Authority's Rules and Regulations.  The Agency
 filed an opposition.
 
    The dispute in this matter concerns the Agency's refusal to bargain
 over a Union proposal pertaining to a general reduction-in-force (RIF)
 notice.  On September 4, 1981, the parties agreed to revisions to the
 Agency regulation respecting RIF procedures.  Among the agreed upon
 revisions was that no proposed action would be taken until the affected
 employee had a minimum of 21 days specific notice of what the action is
 to be.  On September 21, 1981, the Agency issued a general RIF notice
 which stated that any affected employee would be given a specific notice
 at lease 21 days prior to the effective date of any action.  The Union
 presented proposals for bargaining over the impact and implementation of
 the notice including a proposal that no RIF action may be taken until
 the affected employee has received a minimum of 90 days of specific
 notice.  The Agency refused to bargain over a specific notice period
 contending that the agreement on a specific notice period of 21 days
 obviated any further obligation to bargain on this point.  A grievance
 was filed and submitted to arbitration claiming that the Agency's
 refusal to bargain violated the parties' collective bargaining
 agreement.
 
    The Arbitrator noted that the Union had not presented any evidence or
 argument as to why a greater minimum specific notice period was required
 as to the RIF action in dispute.  Thus, he determined that the minimum
 specific notice period which already had been negotiated and on which
 agreement had been reached in revising the Agency regulation was not
 subject to renegotiation in this case.  Accordingly, the Arbitrator
 ruled the Agency had not violated the agreement by refusing to bargain
 over the specific notice period, and as the award the Arbitrator denied
 the grievance.
 
    In its exception the Union contends that the Arbitrator denied it a
 fair hearing.  Specifically, the Union maintains that the Arbitrator
 decided the case on the basis of whether a greater specific notice
 period in the agency regulations was merited, and the Union claims that
 it failed to present evidence on the merits of its proposal because
 assertedly the Arbitrator acquiesced in its statement that such evidence
 would be irrelevant.  The Union contends that once the Arbitrator
 determined that the merits of the Union's proposal were at issue, he was
 obligated to have given the parties an opportunity to introduce evidence
 on this point.  The Union therefore argues that by relying instead on
 the lack of evidence, the Arbitrator denied it a fair hearing.
 
    The Authority concludes that the exception provides no basis for
 finding the award deficient.  As noted, the Agency denied the grievance
 on the basis that the agreement on a minimum specific notice period in
 the agency regulations obviated any further bargaining obligation in
 this respect, and the issue squarely presented to the Arbitrator
 concerned whether there was nevertheless an obligation under the
 parties' collective bargaining agreement to bargain over a greater
 minimum specific notice period.  Finding that the Union had not
 presented evidence or argument as to why the already agreed upon
 specific notice period should not be applicable, the Arbitrator ruled
 that the Agency had not violated the agreement by refusing to
 renegotiate a subject which had already been negotiated and on which
 agreement had already been reached.  The Union's contention pertaining
 to evidence of the "merits of the Union proposal" fails to establish
 that the Arbitrator denied the Union a fair hearing.  In this regard, it
 has not been substantiated that the Arbitrator made representations to
 the Union on which it justifiably relied that evidence and argument as
 to the applicability of the agreed upon specific notice period were not
 pertinent, relevant, or material to resolving the grievance.
 Furthermore, the Authority takes notice of the Arbitrator's denial of
 the Union's motion to reopen the arbitration hearing in which the
 Arbitrator unequivocally states:
 
          The issue concerning the extent of the parties' bargaining
       obligation over the specific notice period was squarely presented
       to the Arbitrator for resolution.  The Union was not denied the
       opportunity to present such evidence or argument which it felt was
       relevant to that issue;  for whatever reason, the Union did not
       present evidence or argue that the 21-day specific notice period
       provided was not applicable to the particular RIF in question.
       Further, there has been no showing that such evidence was
       unavailable to the Union at the time of the hearing.
 
 For these reasons, the Union's exception is denied.  Issued, Washington,
 D.C., September 22, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Mem