15:0347(74)AR - Louis A. Johnson V.A. Medical Center, Clarksburg, WV and AFGE Local 2384 -- 1984 FLRAdec AR



[ v15 p347 ]
15:0347(74)AR
The decision of the Authority follows:


 15 FLRA No. 74
 
 LOUIS A. JOHNSON VETERANS
 ADMINISTRATION MEDICAL CENTER,
 CLARKSBURG, WEST VIRGINIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2384
 Union
 
                                            Case No. O-AR-555
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Dennis R. Nolan filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The dispute in this matter concerns the adoption by the Activity of
 new criteria governing the eligibility for incentive awards.  The Union
 filed a grievance that was submitted to arbitration claiming that the
 Activity violated provisions of the master and local collective
 bargaining agreements by failing to negotiate with the Union before
 modifying the criteria for the awards.  Thus, the Arbitrator framed the
 issues as follows:  "A. Is the dispute arbitrable?  B. If the dispute is
 arbitrable, did the Employer violate the collective bargaining agreement
 by adopting new criteria governing eligibility for incentive awards
 without bargaining with the Union?  If so, what shall the remedy be?"
 After determining the dispute to be arbitrable, the Arbitrator
 determined that the new criteria had been adopted without notification
 to or bargaining with the Union.  After considering the relevant
 provisions of the master and local agreements, /1/ as well as the
 Statute, the FPM and an FPM Bulletin, the Arbitrator determined that the
 adoption and modification of policies governing the incentive awards
 program are negotiable matters.  Consequently, the Arbitrator ruled that
 the Activity had violated its obligations under the master and local
 agreements and ordered as follows:
 
          The grievance is sustained insofar as it alleges that the
       Employer adopted new criteria governing incentive awards in August
       1982 without notifying or bargaining with the Union.
 
          The Employer is ordered to give reasonable notice to the Union
       if it proposes to use any criteria governing incentive awards
       other than those applied prior to August 1982, or if it proposes
       to modify those criteria.
 
          The Employer is further ordered, upon request by the Union, to
       bargain with the Union in good faith concerning any modification
       or substitution of criteria governing incentive awards.
 
    In its exception the Agency contends that the award is contrary to
 the Statute.  Specifically, the Agency maintains on the basis of
 Interpretation and Guidance, 11 FLRA No. 107 (1983), that the award is
 contrary to section 7105(a)(2)(E) of the Statute which provides:  "The
 Authority shall, to the extent provided in this chapter and in
 accordance with regulations prescribed by the Authority-- resolve issues
 relating to the duty to bargain in good faith under section 7117(c) of
 this title(.)" The Authority in the Interpretation and Guidance
 addressed the question of whether the Federal Service Impasses Panel has
 the authority to resolve questions concerning the obligation to bargain
 which arise after the Panel has asserted jurisdiction over an impasse in
 negotiations pursuant to section 7119 of the Statute.  The Authority
 concluded that section 7119 does not authorize the Panel to resolve
 issues as to whether there is an obligation to bargain.  Rather, section
 7105(a)(2)(E) requires that the Authority resolve such issues.  The
 Agency's position in support of this exception is essentially that
 because the Authority concluded that the Panel was precluded by the
 Statute from resolving issues concerning the obligation to bargain, the
 Arbitrator was likewise precluded from resolving whether the criteria
 governing incentive awards are within the duty to bargain.
 
    The Authority concludes with respect to this contention of the Agency
 that the award is not contrary to section 7105(a)(2)(E) of the Statute.
 In the Interpretation and Guidance upon which the Agency relies the
 Authority said, in pertinent part:
 
          Specific provisions of the Statute provide for the resolution
       by the Authority of disputes relating to the parties' obligation
       to bargain.  Thus, section 7105(a)(2)(E) of the Statute makes it
       clear that the Authority is required to resolve issues relating to
       the duty to bargain in good faith under section 7117(c) which
       specifically contemplates an appeal "to the Authority." In order
       to implement this statutory imperative, Part 2424 of the
       Authority's Rules and Regulations sets forth the procedures for
       union appeals to the Authority from agency allegations that the
       duty to bargain in good faith does not extend to matters proposed
       to be bargained.  Therefore, it is clear that, based on the plain
       language of the Statute as implemented in the Authority's Rules
       and Regulations, negotiability issues which arise during the
       collective bargaining process must be resolved through appeal to
       the Authority.  (Footnote omitted.)
 
    Clearly, therefore, negotiability disputes which arise between an
 agency and an exclusive representative under section 7117(c)(1) /2/ must
 be resolved by the Authority as required by section 7105(a)(2)(E).  /3/
 Consequently, such disputes may not be resolved by an arbitrator in the
 guise of a grievance under the negotiated grievance procedure contained
 in the collective bargaining agreement between the exclusive
 representative and the agency.
 
    Of course, disputes relating to the meaning and application of
 provisions of the parties' collective bargaining agreement, including
 provisions therein dealing with the obligation to bargain, are subject
 to resolution under the negotiated grievance procedure and a
 negotiability appeal is not the proper forum in which to resolve such
 disputes.  See, e.g., National Federation of Federal Employees, Local
 1430 and Department of the Navy, Northern Division, U.S. Naval Base,
 Philadelphia, Pennsylvania, 9 FLRA 1086, 1087 (1982);  American
 Federation of Government Employees, AFL-CIO, Local 1931 and Department
 of the Navy, Naval Weapons Station, Concord, California, 2 FLRA 182, 183
 (1979).  Therefore, the dispute concerning the meaning and application
 of the collective bargaining agreement in this case was raised under the
 negotiated grievance procedure and the parties quite properly did not
 submit the matter to the Authority under the negotiability appeals
 procedures.
 
    Further, nothing prevents an arbitrator from considering the meaning
 and applicability of relevant Federal law and regulations when resolving
 a grievance under the negotiated grievance procedure.  Indeed, where
 exceptions to an arbitration award are filed with the Authority, section
 7122 authorizes the Authority to take such action as it considers
 necessary with respect to an arbitration award which it finds deficient
 because the award is contrary to any law, rule or regulation.  To avoid
 such findings of deficiency by the Authority, an arbitrator must
 perforce consider any relevant law, rule or regulation when fashioning a
 grievance arbitration award in the Federal sector.
 
    In this case, the Arbitrator was asked to resolve a grievance
 properly before him of whether the Activity's actions violated
 negotiated provisions of the collective bargaining agreements.  In the
 course of doing so, he considered whether the criteria governing
 incentive awards were within the duty to bargain under the provisions of
 the master and local agreements and collaterally, under relevant
 provisions of law and regulation.  Contrary to the Agency's contention,
 the Authority finds that the Statute in no manner precluded the
 Arbitrator from considering the collateral issue of whether, under
 relevant statute and regulations, the obligation to bargain extends to
 criteria governing incentive awards.  Thus, the Arbitrator properly
 considered the relevant laws, rules and regulations relating to the
 obligation to bargain in the course of resolving the grievance before
 him of whether the Activity's actions violated a negotiated clause of
 the collective bargaining agreement.  See National Archives and Records
 Service, General Services Administration and Local 2578, American
 Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982).
 
    Although the Arbitrator was not prohibited by the Statute from
 considering the collateral issue of the obligation to bargain in the
 course of resolving the grievance, his conclusion in that regard, of
 course, must be consistent with the Statute and relevant decisions of
 the Authority and the determination is subject to review by the
 Authority on the filing of an exception contending that the award is
 deficient under section 7122(a) of the Statute.  See id. at 383.  In
 this respect the Authority has expressly held that an integral aspect of
 management's exercise of its right to direct employees under section
 7106(a)(2)(A) and its right to assign work under section 7106(a)(2)(B)
 is to prescribe the standards which an employee must attain in order to
 be eligible for a reward for superior performance.  National Treasury
 Employees Union and Internal Revenue Service, 14 FLRA No. 77 (1984)
 (proposals 1-2).  Thus, in terms of this case, the Arbitrator could not
 properly order the Activity to negotiate with the Union concerning the
 decision of the Activity to modify the criteria governing incentive
 awards.  Consequently, the Authority finds that the award is deficient
 as contrary to section 7106(a) of the Statute to the extent that it
 subjects the Activity's decision to modify the criteria governing
 incentive awards to negotiation.  See Commander, 554th Combat Support
 Group (TAC), Nellis Air Force Base, Las Vegas, Nevada and American
 Federation of Government Employees, Local 1199, AFL-CIO, Nellis Air
 Force Base, 14 FLRA No. 14 (1984).  Accordingly, the award is modified
 to provide as follows:
 
          The grievance is sustained insofar as it alleges that the
       Employer adopted new criteria governing incentive awards in August
       1982 without notifying the Union and affording it an opportunity
       to bargain on impact and implementation.
 
          The Employer is ordered to give reasonable notice to the Union
       if it proposes to use any criteria governing incentive awards
       other than those applied prior to August 1982 or if it proposes to
       modify those criteria.
 
          The Employer is further ordered, upon request by the Union, to
       bargain with the Union in good faith concerning the impact and
       implementation of any modification or substitution of criteria
       governing incentive awards.
 
    Issued, Washington, D.C., July 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ As the Arbitrator said in his award:
 
          . . . More pertinently, the parties themselves agreed to
       negotiate about such changes.  Article 4, Section 5 of the Master
       Agreement is the clearest statement of the duty to negotiate:
       "Proposed changes affecting personnel policies, practices or
       conditions of employment which are initiated by local management
       at a single facility will be forwarded to the designated local
       union official.  Upon request, the parties will negotiate as
       appropriate." At least two other provisions of that Agreement
       state the same obligation in different language (Preamble, Section
       2 and Article 6, Section 6), as do two provisions of the Local
       Agreement (Articles II and XXXII).
 
 
    /2/ Section 7117(c)(1) reads as follows:
 
          Except in any case to which subsection (b) of this section
       applies, if an agency