19:0238(26)AR - Federal Correctional Institution, Texarcana, TX, Federal Prison System and AFGE Local 2459, Texarcana, TX -- 1985 FLRAdec AR



[ v19 p238 ]
19:0238(26)AR
The decision of the Authority follows:


 19 FLRA No. 26
 
 FEDERAL CORRECTIONAL INSTITUTION,
 TEXARCANA, TEXAS, FEDERAL
 PRISON SYSTEM
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2459, TEXARCANA, TEXAS
 Union
 
                                            Case No. O-AR-788
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Francis X. Quinn 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 Union filed an opposition.
 /1/
 
    The parties submitted to arbitration the issue of whether the
 Agency's disapproval of certain provisions of the parties' supplemental
 agreement was in accordance with the master agreement.  The Agency
 disapproved the provisions for a variety of reasons, including as to
 Article 2, Section c;  Article 6, Section c and Sections i(6) and (8);
 and Article 18, Sections b, c, d, and e that such provisions interfered
 with management rights under section 7106(a) of the Statute and
 therefore were not within the duty to bargain.  The Arbitrator as his
 award, in relevant part, directed that the following provisions be
 included in the parties' supplemental agreement:  Article 2, Section c
 and Article 6, Section c and Sections i(6) and (8) (which the Arbitrator
 erroneously identified as h(6) and (8)).  As to Article 6, Section b the
 Arbitrator directed the parties to draft language in accordance with his
 instructions.  As to Article 18 the Arbitrator noted that the parties
 are in basic agreement.  As to Article 19, Section g (erroneously
 identified as (8)), the Arbitrator noted that the parties had agreed to
 redraft the language.  As to Article 21, Section c the Arbitrator noted
 that the parties had agreed to amended language.  The Arbitrator also
 retained jurisdiction for purposes of implementation of the award.
 
    In its first exception the Agency contends that the award is contrary
 to section 7119(b)(2) of the Statute because the Arbitrator engaged in
 binding arbitration of a negotiation impasse without the approval of the
 Federal Service Impasses Panel.  The Authority, however, concludes that
 this exception provides no basis for finding the award deficient.
 Contrary to the Agency's argument, the Authority finds that the
 Arbitrator appropriately resolved grievance dispute submitted to
 arbitration under the master agreement of whether under the controlling
 provisions of that agreement, the Agency's disapproval of provisions of
 the supplemental agreement was proper.  See, e.g., Congressional
 Research Employees Association and Library of Congress, 18 FLRA No. 5
 (1985), slip op. at 4 n.2.  Thus, the Agency fails to establish in its
 exception that the Arbitrator resolved a negotiation impasse, and this
 exception is accordingly denied.
 
    With respect to the Arbitrator's award as it relates to Article 6,
 Section b;  Article 19, Section g;  and Article 21, Section c, the
 Agency contends in its exceptions that by directing the parties to draft
 new language, the award does not draw its essence from the master
 collective bargaining agreement;  the Arbitrator exceeded his authority;
  and the award is incomplete.  The Authority, however, concludes that
 these exceptions provide no basis for finding the award deficient.  With
 respect to the first and second of these exceptions, the Agency
 essentially maintains that the master agreement does not authorize
 drafting of new language as a resolution of a dispute over provisions of
 a supplemental agreement.  The master agreement in relevant part
 provides:  "Disputes as to whether a matter is improper for inclusion in
 a supplemental agreement shall be resolved by arbitration in accordance
 with Article 32 (the arbitration provision of the grievance procedure)."
 The Authority finds that it has not been shown, as alleged by the
 Agency, that the award in any manner evidences an infidelity to the
 master agreement or is in disregard of a plain and specific limitation
 of that agreement.  Similarly, with the Arbitrator directing the
 redrafting in accordance with his instructions or the prior agreement of
 the parties, the Agency has in no manner established that the award is
 incomplete.  Accordingly, these exceptions are denied.
 
    With respect to the Arbitrator's award as it further relates to
 Article 19, Section g and Article 21, Section c, the Agency contends
 that the award is based on a nonfact because the Arbitrator erroneously
 found that the parties had agreed to renegotiate this language.  The
 Authority, however, concludes that this exception provides no basis for
 finding the award deficient.  It has in no manner been established that
 the Arbitrator's finding in this respect is "concededly erroneous." To
 the contrary, the Agency's allegation is nothing more than disagreement
 with the Arbitrator's findings of fact and in no manner establishes that
 the central fact underlying the award is concededly erroneous and in
 effect is a gross mistake of fact but for which the result would have
 been different.  See, e.g., International Brotherhood of Electrical
 Workers and United States Army Support Command, Hawaii, 14 FLRA 680
 (1984).  Accordingly, this exception is denied.
 
    With respect to the Arbitrator's award as it relates to Article 2,
 Section c;  Article 6, Section c and Sections i(6) and (8);  and Article
 18, Sections b, c, d, and e, the Agency in its exception essentially
 contends that the award is contrary to the Statute because the
 Arbitrator resolved issues relating to the duty to bargain under the
 Statute.  The Authority agrees.
 
    The Authority in Department of the Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio and American Federation
 of Government Employees, Council of Locals, No. 214, 18 FLRA No. 81
 (1985), found an interest arbitration award deficient as contrary to
 section 7105(a)(2)(E) of the Statute /2/ when the arbitrator ordered
 that the parties' agreement contain a provision despite the agency's
 allegation that the matter was negotiable only at the election of the
 agency under section 7106(b)(1) of the Statute.  The Authority held the
 agency's allegation presented an issue relating to the duty to bargain
 in good faith under the Statute and must have been resolved only by an
 appeal to the Authority as set out in section 7117(c).  Similarly, the
 Authority held in Louis A. Johnson Veterans Administration Medical
 Center, Clarksburg, West Virginia and American Federation of Government
 Employees, Local 2384, 15 FLRA No. 74 (1984), that issues relating to
 the duty to bargain in good faith under section 7117(c) cannot be
 resolved by an arbitrator in the guise of a grievance under the
 negotiated grievance procedure of the collective bargaining agreement
 between the exclusive representative and the agency.  Thus, in terms of
 this case, although the Arbitrator could properly resolve whether the
 Agency's disapproval of provisions of the supplemental agreement was
 proper under the terms of the master agreement, see Congressional
 Research Employees Association, 18 FLRA No. 5, the Arbitrator could not
 properly resolve any issues relating to the duty to bargain in good
 faith under the Statute.  However, by effectively rejecting the Agency's
 disapproval of the enumerated provisions, which disapproval was based on
 section 7106(a), the Arbitrator necessarily decided that the Agency had
 an obligation to bargain over the disputed provisions.  However, the
 Agency's disapproval of these provisions as not negotiable by reason of
 section 7106(a) of the Statute presents an issue relating to the duty to
 bargain in good faith under the Statute and must be resolved only by an
 appeal to the Authority as set forth in section 7117(c).  Accordingly,
 that portion of the Arbitrator's award pertaining to Article 2, Section
 c;  Article 6, Section c and Sections i(6) and (8);  and Article 18,
 Sections b, c, d, and e is deficient as contrary to section
 7105(a)(2)(E) of the Statute and is struck from the award.  /3/ Issued,
 Washington, D.C., July 22, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its opposition, the Union argues that the exceptions must be
 dismissed as premature under the Authority's Rules and Regulations
 because the Arbitrator retained jurisdiction.  However, the retention of
 jurisdiction to resolve possible problems of implementation provides no
 basis for finding premature the Agency's exceptions to the award.  See
 Social Security Administration and American Federation of Government
 Employees, Local 1164, AFL-CIO, 14 FLRA 444 (1984).
 
 
    /2/ Section 7105(a)(2)(E) provides:
 
                                .  .  .  .
 
          (a)(2) The Authority shall, to the extent provided in this
       chapter and in accordance with regulations prescribed by the
       Authority--
 
                                .  .  .  .
 
          (E) resolve issues relating to the duty to bargain in good
       faith under section 7117(c) of this title(.)
 
 
    /3/ In view of this decision, it is unnecessary to address the other
 exceptions relating to this portion of the award.  In addition, in
 determining that the Arbitrator was without authority to decide