20:0385(40)AR - The Columbia Basin Trades Council, Grand Coulee, WA And The Grand Coulee Project Office, Bureau of Reclamation, DOI, Grand Coulee, WA -- 1985 FLRAdec AR



[ v20 p385 ]
20:0385(40)AR
The decision of the Authority follows:


 20 FLRA No. 40
 
 THE COLUMBIA BASIN TRADES COUNCIL, 
 GRAND COULEE, WASHINGTON  
 Union
 
 and 
 
 THE GRAND COULEE PROJECT OFFICE, 
 BUREAU OF RECLAMATION, 
 U.S.DEPARTMENT OF THE INTERIOR, 
 GRAND COULEE, WASHINGTON  
 Activity
 
                                       Case No. O-AR-672
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award and
 supplemental award of Arbitrator William H. Dorsey filed by the
 Department of the Interior (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 oppositions to the
 exceptions and the Department of Energy filed a brief as an amicus
 curiae.
 
    The grievance arose when the Activity established a new position or
 classification of Plant Mechanic and informed the Union that it intended
 to transfer the work of a number of existing craft classifications of
 employees in the bargaining unit /1/ to the new position.  By submission
 agreement, the parties submitted the following two issues to
 arbitration:  /2/
 
          Issue 1:  Is the right of the Project to establish a new
       classification per se arbitrable?
 
          Issue 2:  . . . In establishing its new classification of Plant
       Mechanic and in so notifying the Council of its express intentions
       concerning the above described transfer of work and elimination or
       non-utilization of the above described current classifications,
       has the Project violated any provision of the current contract of
       the parties . . . ?
 
    As to Issue 1, the Activity argued that the grievance was
 nonarbitrable because it involved classification and negotiability
 issues and the Arbitrator did not have authority to rule on such
 matters.  Contrary to the Activity's arguments, however, the Arbitrator
 found that the dispute was not whether the Activity had a right to
 establish a new classification nor whether the Activity had an
 obligation to negotiate with the Union before it established the Plant
 Mechanic classification.  The Arbitrator stated that the Activity
 clearly had a right to establish the classification without negotiating
 with the Union and noted that the Union had so conceded.  The Arbitrator
 found that the crucial issue in the case was Issue 2, as set forth by
 the parties in their submission agreement, which, he concluded, was a
 grievable and arbitrable question concerning the application of the
 parties' agreement to the specific actions taken by the Activity.
 Accordingly, the Arbitrator ruled as to Issue 1:
 
          Answer to Issue 1:  Because the right of the Project to
       establish a new classification, per se, is conceded by the
       Council, and because the crucial issue in this case (as framed in
       Issue 2, above) clearly concerns alleged improper actions on the
       part of the Project in the exercise of its admitted right to
       establish a new classification, Issue 1, above, is a moot
       question. . . .
 
    With regard to Issue 2, the Arbitrator determined that this case,
 like a previous dispute between the parties, /3/ was one in which the
 Activity in effect simply eliminated a number of craft classifications
 and their rates of pay, which had been negotiated by the parties and
 expressly set forth in their agreement, by establishing the new
 classification and then unilaterally transferring to it the work of the
 existing classifications.  The Arbitrator further found, among other
 things, that in this case the bargained-for classifications in the
 parties' agreement were effectively eliminated by the Activity's
 unilateral action without any new or changed conditions that would
 warrant such action.  Accordingly, with regard to Issue 2, i.e., whether
 the Activity had violated the parties' collective bargaining agreement,
 the Arbitrator ruled:
 
          Answer to Issue 2:  YES, in establishing its new classification
       of Plant Mechanic and in so notifying the Council of its express
       intentions concerning the above-utilization of the above-described
       current classifications of Rigger, Machinist, Boilermaker and
       Pipefitter, and also, in part, the work of the existing
       classification of Operator General, the Project violated the
       express language of (the parties' agreements).
 
    As his award on the merits of the dispute, the Arbitrator directed
 the Activity to cease and desist from its efforts to transfer to the new
 Plant Mechanic positions all of the duties and personnel of the existing
 craft classifications involved in the case.  The Arbitrator further
 directed the Activity to maintain each of those existing
 classifications, with their personnel and duties intact, until such time
 as the Union and the Activity mutually agree to the abolishment of the
 craft classifications and the transfer of personnel and duties to the
 Plant Mechanic classification.
 
    Subsequently, upon a request for clarification related to the
 Activity's filling of mechanic foreman positions, the Arbitrator issued
 a supplemental award.  In that subsequent award, the Arbitrator found
 that the dispute initially before him involved the Plant Mechanic
 classification and all related foreman classifications, as reflected in
 the rates of pay he set for such positions in his initial award on the
 third issue presented by the parties;  that the foreman classifications
 are in the bargaining unit represented by the Union;  and that the
 Activity had violated the spirit and intent of his initial award by its
 post-award actions with respect to the foreman positions.  Accordingly,
 the Arbitrator directed the Activity to cease and desist from its use of
 employees in the foreman classifications to supervise composite crews of
 employees in the existing craft classifications involved in the case
 until such time as the Union and the Activity mutually agree to the use
 of such classifications for that purpose.
 
    In its exceptions to the Arbitrator's initial award, the Agency first
 argues that the Arbitrator erred in concluding with regard to Issue 1
 that the underlying issue in dispute in the case was arbitrable insofar
 as it did not involve a negotiability question.  However, as indicated
 above, the underlying issue which the parties submitted for arbitration
 was whether the Activity had violated the parties' collective bargaining
 agreement by its actions related to the establishment of the new Plant
 Mechanic classification.  The Authority therefore finds that the Agency
 has failed to establish how the Arbitrator erred in finding the
 submitted issue to be the crucial issue in the case rather than a
 negotiability issue as argued by the Agency.  The Authority concludes
 that the Agency's exception constitutes nothing more than disagreement
 with the Arbitrator's reasoning and conclusions in resolving the dispute
 before him.  It is well-established that such disagreement provides no
 basis for finding an award deficient under the Statute.  See, e.g.,
 Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee and
 American Federation of Government Employees, Local 2501, 13 FLRA
 5(1983).
 
    In other exceptions, the Agency contends that the Arbitrator exceeded
 his authority by requiring management to negotiate with the Union on
 nonnegotiable subject matter and that the Arbitrator's award and
 supplemental award are contrary to the Statute.  More specifically, in
 that latter regard, the Agency reiterates the argument made before the
 Arbitrator that the dispute concerns the classification of positions and
 asserts that by finding the matter arbitrable the award is contrary to
 section 7121(c)(5) of the Statute, which precludes grievances concerning
 the classification of any position that does not result in the reduction
 in grade or pay of an employee.  The Agency further contends that the
 Arbitrator's initial award on the merits of the dispute and his
 supplemental award violate management's rights under section 7106(a) of
 the Statute.
 
    Upon careful consideration of the record in this case, the Authority
 concludes that the Agency has failed to establish that the Arbitrator's
 award and supplemental award are deficient as alleged.  As noted above,
 the employees in the bargaining unit here involved have collective
 bargaining rights which have been expressly preserved and recognized by
 section 9(b) of the Prevailing Rate Systems Act of 1972 and section 704
 of the Civil Service Reform Act of 1978 (CSRA).  Section 704(a) of the
 CSRA provides:
 
          Those terms and conditions of employment and other employment
       benefits with respect to Government prevailing rate employees to
       whom section 9(b) of Public Law 92-392 applies which were the
       subject of negotiation in accordance with prevailing rates and
       practices prior to August 19, 1972, shall be negotiated on and
       after the date of the enactment of this Act in accordance with the
       provisions of section 9(b) of Public Law 92-392 without regard to
       any provision of chapter 71 of title 5, United States Code (as
       amended by this title), to the extent that any such provision is
       inconsistent with this paragraph.
 
 The legislative history of section 704 demonstrates that the provision
 was designed to preserve the scope of bargaining enjoyed by certain
 employees (principally employees of the Department of the Interior and
 Department of Energy) prior to enactment of the CSRA by authorizing
 those employees to continue to negotiate their terms and conditions of
 employment in accordance with prevailing practices in the private
 sector.  /4/ Thus, section 704 clearly authorizes and requires agencies
 to negotiate on any terms and conditions of employment which were the
 subject of negotiations prior to August 19, 1972, without regard to
 inconsistent provisions of the Statue.  /5/
 
    In terms of this case, the Arbitrator found that the parties
 bargained, agreed upon, and expressly set forth in their collective
 bargaining agreement the craft line classifications affected by the
 Activity's actions.  In that regard, the Union contends, and the Agency
 does not refute the contention, that the parties have negotiated over
 such matters since before 1972.  /6/ Furthermore, with regard to the
 Arbitrator's supplemental award, the Arbitrator found that mechanic
 foremen are part of the unit represented by the Union and are also among
 the craft classifications which were the subject of the grievance.
 
    Thus, the terms and conditions of employment of the employees in the
 positions affected by the Activity's actions, which the Arbitrator found
 were embodied in the parties' agreement, were preserved and protected
 pursuant to section 704 of the CSRA.  In these circumstances, it was
 impermissible for the Activity to unilaterally change those terms and
 conditions of employment, notwithstanding its purported reliance on
 management's rights under the Statute.  Rather, collective bargaining is
 the appropriate means by which the Activity may obtain the assertedly
 necessary changes in any terms and conditions of employment set forth in
 the parties' agreement.  The Authority therefore concludes that the
 Agency has failed to establish either that the Arbitrator exceeded his
 authority or that his initial award or supplemental award are contrary
 to the Statute as alleged.
 
    In its remaining exceptions, the Agency argues that the Arbitrator's
 initial award on the merits as well as his supplemental award are
 deficient because they are based on nonfacts and that the initial award
 is further deficient because it is based on speculation rather than
 evidence and because the Arbitrator disregarded the management rights
 provisions in the parties' agreement and misinterpreted other provisions
 of the agreement.  However, the Authority concludes that the Agency's
 arguments constitute nothing more than disagreement with the
 Arbitrator's findings of fact, with his reasoning and conclusions based
 on the evidence before him, and with his interpretation and application
 of the parties' agreement.  It is well established that such
 disagreement does not provide any basis for finding an award deficient.
 E.g., Federal Correctional Institution, Petersburg, Virginia, and
 American Federation of Government Employees, Local 2052, Petersburg,
 Virginia, 13 FLRA 108(1983).
 
    Accordingly, since the Agency has failed to establish that the
 Arbitrator's award and supplemental award are deficient as alleged, the
 exceptions are denied.
 
    Issued, Washington, D.C., September 27, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The employees in the bargaining unit have collective bargaining
 rights which have been preserved and recognized by section 9(b) of the
 Prevailing Rate Systems Act of 1972, Pub. L. No. 92-932, 5 U.S.C. 5343
 note, and section 704 of the Civil Service Reform Act of 1978, Pub. L.
 No. 95-454, 5 U.S.C. 5343 note, to negotiate wages and other terms and
 conditions of employment in accordance with prevailing rates and
 practices in the private sector.
 
 
    /2/ The parties submitted and the Arbitrator resolved a third
 question concerning the appropriate rate of pay for the new
 classification of Plant Mechanic.  That aspect of the Arbitrator's award
 is not disputed by the Agency and is not before the Authority.
 
 
    /3/ Columbia Basin Trades Council and All of Its Constituent Unions,
 Spokane, Washington and The Grand Coulee Project Office, Bureau of
 Reclamation, U.S. Department of the Interior, Grand Coulee, Washington,
 9 FLRA 164(1982).
 
 
    /4/ 124 Cong.Rec.H 8468-69 (daily ed. Aug. 11, 1978) (statement of
 Rep. Ford), reprinted in H.R. Subcomm. on Postal Personnel and
 Modernization of the Comm. on Post Office and Civil Service, 96th Cong.,
 1st Sess., Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978
 (Comm. Print No. 7, 1979), at 857.
 
 
    /5/ H.R. Conf. Rep. No. 1717, 95th Cong., 2d Sess. 159(1978)
 reprinted in Legislative History, at 827.  See The Grand Coulee Project
 Office, 9 FLRA at 167.  See also International Brotherhood of Electrical
 Workers, Local 640 and U.S. Department of the Interior, Bureau of
 Reclamation, 18 FLRA No. 102(1985).
 
 
    /6/ The Union's contention was raised in its opposition to the
 Ag