21:0339(45)CO - AFGE, Local 2782 and Dept. of Commerce, Bureau of the Census -- 1986 FLRAdec CO



[ v21 p339 ]
21:0339(45)CO
The decision of the Authority follows:


 21 FLRA No. 45
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2782, AFL-CIO
 Respondent
 
 and
 
 DEPARTMENT OF COMMERCE 
 BUREAU OF THE CENSUS
 Charging Party
 
                                            Case No. 3-CO-50002
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision finding
 that the Respondent had engaged in the unfair labor practices alleged in
 the complaint, and recommending that it be ordered to cease and desist
 therefrom and take certain affirmative action.  The Respondent filed
 exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority has reviewed the rulings of the Judge made at the
 hearing and finds that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's Decision and the
 entire record, the Authority hereby adopts the Judge's findings,
 conclusions and recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, it is hereby ordered that the American Federation of Government
 Employees, Local 2782, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally refusing or failing to proceed to arbitration
 regarding three grievances filed by the Department of Commerce, Bureau
 of the Census, on March 8, 1984, contrary to the requirements of section
 7121 of the Federal Service Labor-Management Relations Statute, after
 receiving timely notice of the Department of Commerce, Bureau of the
 Census' desire to invoke arbitration.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing unit employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, proceed to arbitration regarding the three
 grievances filed by the Department of Commerce, Bureau of the Census, on
 March 8, 1984.
 
    (b) Post at its business offices and its normal meeting places,
 including all places where notices to members and employees of the
 Department of Commerce, Bureau of the Census, are customarily posted,
 copies of the attached Notice, on forms to be furnished by the Federal
 Labor Relations Authority.  Upon receipt of such forms, they shall be
 signed by the President of the American Federation of Government
 Employees, Local 2782, AFL-CIO, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to members
 and other employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Submit appropriate signed copies of such Notices to the Director,
 Bureau of the Census, for posting in conspicuous places where the unit
 employees are located, where they shall be maintained for a period of 60
 consecutive days from the date of posting.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., April 18, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                 NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT unilaterally refuse or fail to proceed to arbitration
 regarding the three grievances filed by the Department of Commerce,
 Bureau of the Census, on March 8, 1984, contrary to the requirements of
 section 7121 of the Federal Service Labor-Management Relations Statute,
 after receiving timely notice of the Department of Commerce, Bureau of
 the Census desire to invoke arbitration.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce unit employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, proceed to arbitration regarding the three
 grievances filed by the Department of Commerce, Bureau of the Census, on
 March 8, 1984.
                                       (Labor Organization)
 
    Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region III, whose address
 is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
 number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 3-CO-50002
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782,
 AFL-CIO
    Respondent
 
                                    and
 
    DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS
    Charging Party/Agency
 
    Erica F. Cooper, Esquire
    Bruce D. Rosenstein, Esquire
    For the General Counsel
 
    Ruth A. Sanders
    Russ Davis
    For the Respondent
 
    Paul A. Bath
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq., and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on October 3, 1984, by the
 Department of Commerce, Bureau of Census, (hereinafter called the
 Charging Party or Bureau), a Complaint and Notice of Hearing was issued
 on December 31, 1984, by the Regional Director for Region III, Federal
 Labor Relations Authority, Washington, D.C.  The Complaint, which was
 amended at the hearing, alleges in substance that the American
 Federation of Government Employees, Local 2782, AFL-CIO, (hereinafter
 called the Union) violated Sections 7116(b)(1) and (8) of the Federal
 Service Labor-Management Relations Statute, (hereinafter called the
 Statute), by virtue of its actions in failing and refusing to proceed to
 arbitration on three grievances filed by the Bureau.
 
    A hearing was held in Washington, D.C. on February 20, 1985.  All
 parties were afforded the full opportunity to be heard, to examine and
 cross-examine witnesses, and to introduce evidence bearing on the issues
 involved herein.  The General Counsel submitted a post hearing brief on
 March 20, 1985, which has been duly considered.  /1/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The Union is and has been the exclusive collective bargaining
 representative of two units of the Bureau's employees stationed in the
 Washington, D.C. Metropolitan Area.  On June 23, 1977, the Union and the
 Bureau executed a collective bargaining agreement covering the above
 mentioned employees.  The agreement was to be effective for a period of
 three years and from year to year thereafter absent appropriate notice
 by either party to the contrary.  /2/ Article 7 of the collective
 bargaining agreement sets forth a grievance procedure, the last step of
 which is binding arbitration.  If the parties can not mutually agree on
 the selection of an arbitrator, then, in accordance with the grievance
 procedure, a list of seven arbitrators is to be secured from Federal
 Mediation and Conciliation Service (FMCS).  Upon the receipt of the list
 from FMCS, the parties will alternately take turns striking single names
 from the list until only one arbitrator's name remains on the list.  The
 grievance procedure further provides that either party to the collective
 bargaining agreement may "as the final step in the grievance procedure"
 invoke arbitration following the receipt of the opposing parties
 decision pursuant to Section 7.10 of the grievance procedure which is
 entitled "Formal Grievance".
 
    On or about October 28, 1983, after approximately six months of
 bargaining by Mr. David Warner on behalf of the Bureau and Mr. Edward
 Hanlon, then Chief Steward and Chief Negotiator for the Union, Mr.
 Hanlon and Mr. Warner initialed off on a new collective bargaining
 contract.  /3/ The collective bargaining contract was subject to
 ratification by the Union membership, and a 30 day period thereafter for
 final approval by higher representatives of the Bureau.
 
    Also on October 28, 1983, Mr. Hanlon and Mr. Warner entered into a
 Memorandum of Understanding (MOU) wherein the Union agreed to withdraw
 "all unfair labor practices which have been filed and are currently
 pending, including those being investigated and those already scheduled
 for hearings".  The Union also agreed to abide by Article 30 of the
 "proposed new agreement" pending ratification of the Agreement.  Article
 30 of the new Agreement provides, among other things, that the Union
 will give the Bureau 30 days notice prior to filing any unfair labor
 practice charge.
 
    According to the credited testimony of Mr. Warner, the Union ratified
 the new October 28, 1983 collective bargaining agreement between the
 parties on or about November 9 or 10, 1983.  On or about December 10,
 1983, approximately 30 days following ratification, the Bureau began to
 implement the contract.  Thus, the Bureau established an alternate work
 schedule, provided Union access to the mails, prepared a survey
 concerning employee interest in a day care center, effected changes in
 employees' work space, etc.
 
    However, despite the fact that the Bureau had been implementing the
 terms of the new collective bargaining agreement, the Union, due to a
 controversy surrounding Article 19.2 of the new collective bargaining
 agreement which pertained to alternate work schedules for unit employees
 in the Bureau's Computer Services Division, refused to formally sign the
 new collective bargaining agreement.
 
    By separate Memorandums date March 8, 1984, the Bureau filed three
 separate "Formal" grievances against the Union.  Two of the grievances
 concerned alleged violations of the October 28, 1983 MOU and the third
 grievance concerned an alleged "intentionally false, inflammatory
 letter" from the Union to unit employees in connection with a pending
 representation matter before the Federal Labor Relations Authority.  /4/
 When the Union failed to respond to the grievances, the Bureau by three
 separate letters dated April 14, 1984, consistent with applicable
 provisions of both the 1977 and 1983 collective bargaining contracts,
 invoked arbitration on each of the grievances.  Attached to each of the
 three April 14, letters invoking arbitration was a copy of the original
 grievance, a proposed settlement and a Form R-43 which was utilized
 under the 1977 contract to obtain a list of arbitrators from the FMC.
 Neither the March 8, 1984 grievances nor the April 13, 1984, letters
 invoking arbitration specifically mentioned which contract the Bureau
 was proceeding under.
 
    On April 23, 1984, the Union responded to the Bureau's request for
 arbitration taking the position that the November, 1983 collective
 bargaining contract was "void, null, and without any legal meaning
 whatsoever" due to pending litigation thereon before the Federal Labor
 Relations Authority, and that in such circumstances the matters raised
 in the grievances were "not grievable or arbitrable at this time".  The
 Union closed its letter stating as follows:
 
          However, if the Agency wishes to seek enforcement of any
       provision of the 1977 agreement currently in legal effect, it may
       do so pursuant to the negotiated grievance procedure of that
       contract.  The Union will, of course process any management
       grievance pursuant to the 1977 contract.
 
    By memorandum dated May 4, 1984, the Bureau notified Mr. Hanlon, then
 president of the Union, that it was unaware of any authority for the
 Union's position that it could make a unilateral determination
 concerning the arbitrability and/or grievability of any matter.  The
 memorandum further advised the Union that the Bureau intended to proceed
 "independently to arbitration" and give serious thought to filing an
 unfair labor practice predicated upon the Union's refusal to process
 grievances.  Four days later, on May 8, 1984, the Bureau filed a
 completed FMCS Form R-43, entitled "Request For Arbitration Panel".  On
 May 14, 1984, the FMCS forwarded a panel of arbitrators to both the
 Union and the Bureau.
 
    On July 19, 1984, the Bureau and the Union entered into a Memorandum
 of Agreement covering the disputed language appearing in Article 19.2 of
 the new collective bargaining agreement which pertained to alternative
 work schedules for unit employees in the Bureau's Computer Division.
 Paragraphs (a), (b) and (c) dealt solely with Article 19.2.  Paragraphs
 (d), (e) and (f) read as follows:
 
          (d) Immediately sign the current (November 9, 1983) contract
       without the article 19.2.
 
          (e) The contract is effective as of the date of signature of
       this memorandum.  However, any agency actions taken under the
       November 9 contract must be considered as if the contract had
       taken effect when implemented by the agency.  The agency will not
       raise the defense of timeliness with respect to grievances
       concerning the issues of physical relocation, or the impact of
       reorganization under article 23 and 24, respectively, occurring
       between December 10, 1983 and July 19, 1984.
 
          (f) The Agency will withdraw the unfair labor practice charge
       filed in Case No. 3-CO-40019 now pending.
 
    On July 23, the Bureau sent a memorandum to the Union wherein it
 requested the Union's position on the Bureau's March 8, 1984 grievances.
 
    By Memorandum dated August 13, 1984, the Union requested that the
 parties take immediate steps to form a five member arbitration panel
 pursuant to Sections 9.3 and 10.3 of the new contract.  The Union
 proposed September 10, 1984, as the date the parties would each submit a
 list of 10 arbitrators.  /5/
 
    By Memorandum dated August 14, 1984, the Bureau reiterated its
 request for the Union's position on the Bureau's three pending
 grievances and asked for a response by August 17, 1984.
 
    On August 17, 1984, the Union replied to the Bureau's July 3, 1984
 memorandum stating in pertinent part as follows:
 
          Obviously, the confusion over which contract was in effect from
       December 10, 1983, to July 19, 1984, made the processing of any
       grievance very difficult -- Union, Agency, or employee.  That
       confusion has now, hopefully, been cleared up.
 
          I have not made a final determination of arbitrability or
       grievability on your grievance.  However, to provide an answer to
       your July, 1984, letter and consider your grievances, I require
       reasonable official time.  Article 5 did not contemplate the right
       of management to file a grievance.  No such management right is
       required by law.
 
          I am willing to consider a final response to your March, April,
       and July correspondence and forward it to you within 10 workdays
       if in return you recognize that the Union president or designees
       are entitled to reasonable amounts of official time over and above
       that contained in Article 5 to process management grievances.
 
    By Memorandum dated August 15, 1984, the Bureau replied to the
 Union's August 13, 1984, letter concerning its request that the parties
 take immediate steps to form a permanent arbitration panel by September
 1, 1984.  The Bureau, pointing out that there would not be sufficient
 time to review the qualifications of the arbitrators, suggested October
 31, 1984, as the date to select a panel of arbitrators.  On August 17,
 1984, the Union answered the Bureau's August 15, 1984, memorandum.  The
 Union accused the Bureau of stalling on the matter and suggested
 September 17, 1984 as an alternate date for exchanging lists of
 arbitrators.
 
    On August 20, 1984, the Union again wrote the Bureau concerning its
 pending grievances.  Thus, the Union agreed to process the pending
 grievances filed by the Bureau through Articles 8, 9 and 10 of the new
 1983 contract provided it was allowed additional official time to
 perform such activities.  Articles 8, 9 and 10 of the new contract are
 the grievances and arbitration provisions of the new contract.
 
    On September 7, 1984, the Bureau sent a memorandum to the Union
 wherein it set forth its position on the official time provisions of the
 contract.  By a separate memorandum, also dated September 7, 1984, the
 Bureau informed the Union that while it expected to have its list of
 arbitrators ready for exchange by the end of October, it was of the
 opinion that the establishment of a panel should not prevent the parties
 from proceeding immediately to arbitration on the unresolved grievances.
 
    On October 26, 1984, the Bureau notified the Union that it was
 prepared to meet for purposes of establishing the arbitration panel
 called for in the new contract.
 
    As of the date of the hearing, the Union had not agreed to proceed to
 arbitration on the Bureau's three grievances.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the record supports a
 conclusion that the Union failed and/or refused to participate in the
 submission of the Bureau's three grievances to arbitration and thereby
 violated Sections 7116(b)(1) and (8) of the Statute.  In support of this
 position the General Counsel points out that none of the three
 grievances were predicated solely upon provisions of the 1983 contract
 and as such were actionable under the grievances and arbitration
 provisions of either the 1979 or 1983 contract.  In such circumstances
 according to the General Counsel, even if it be concluded as contended
 by the Union that the 1983 contract was not in effect at the time of the
 initial request for arbitration of the three grievances, then the Union
 was under an obligation to process the grievances under the 1979
 contract, which by its terms remained in effect until superseded by a
 new collective bargaining contract.  In this latter context the General
 Counsel points out, and I so find, that both the form and procedures
 utilized in the processing of such grievances comported in all respects
 with the grievance and arbitration provisions of the 1979 collective
 bargaining contract.
 
    The Union's sole defense to the instant complaint appears to be that
 due to various disagreements concerning the wording of various
 provisions of the 1983 contract, including the provisions dealing with
 grievances and arbitration, the 1983 contract was not in effect at the
 time the Bureau requested arbitration of its grievances.  In such
 circumstances, since the Bureau was in fact requesting arbitration under
 the provisions of the 1983 contract, it, the Union, was under no
 obligation to process the grievances.  According to the Union it was
 always willing to process the grievances under the 1979 collective
 bargaining agreement.
 
    The Authority has held that an agency has a right under the Statute
 to process grievances through the negotiated grievance and arbitration
 procedures.  Laborer's International Union of North America,
 AFL-CIO-CLC, Local 1267, and Defense Logistics Agency, Defense Depot
 Tracy, Tracy, California, 14 FLRA 686.  The Authority has further held
 that once arbitration is invoked by one party to a collective bargaining
 agreement, the other party is obligated to proceed to, and participate
 in, the requested arbitration proceedings.  A failure of a party to so
 participate, is violative of Section 7121 of the Statute and constitutes
 an unfair labor practice.  Department of Labor, Employment Standards
 Administration/Wage and Hour Division, Washington, D.C. and AFGE, Local
 12, AFL-CIO, 10 FLRA 316.  The obligation to participate in arbitration
 also applies to threshold questions concerning grievability and
 arbitrability, Department of Labor, Employment Standards, et al, supra.
 
    In view of the foregoing state of the law, it is obvious that
 resolution of the instant complaint turns on whether or not the Union
 did, as alleged in the complaint, refuse to proceed to arbitration on
 the Bureau's three grievances.
 
    A thorough review of the record, particularly the Union's responses
 to the Bureau's request for arbitration, makes it clear that the Union
 had no intention of cooperating in the requested arbitration
 proceedings.  Thus, the Union in its first response dated April 23,
 1984, took the position that the grievances were not arbitrable since
 they concerned issues covered by the November 1983 collective bargaining
 agreement, which, according to the Union, was "null and void, and
 without any legal meaning whatsoever".  In line with such position, the
 Union made it clear that it would only honor grievances predicated on
 the 1979 collective bargaining agreement and then only under the
 grievance and arbitration provisions of such agreement.  Thereafter,
 when the Bureau subsequently, in accordance with the past practice under
 the grievance and arbitration provisions of the 1979 agreement,
 requested and received a list of arbitrators from the Federal Mediation
 and Conciliation Service, the Union, which had been furnished a copy of
 the list of arbitrators supplied by the Federal Mediation and
 Conciliation Service, made no effort whatsoever to participate in the
 selection of an arbitrator.
 
    Even after July 19, 1984, when all the problems with the 1983
 collective bargaining agreement had apparently been worked out by the
 parties, the Union while still contesting the grievability and
 arbitrability of the Bureau's grievances, refused to pursue the matter
 any further unless the Bureau recognized that the Union was entitled to
 a "reasonable amount of official time over and above that contained in
 Article 5 to process management's grievances".
 
    While it is true that in the interim, the Union did propose that
 steps be taken to establish the permanent panel of arbitrators called
 for in the 1983 collective bargaining agreement, at no time did it
 indicate any willingness to participate in the submission of the
 Bureau's grievances to arbitration under either of the two collective
 bargaining contracts.
 
    Based upon the foregoing, I find that the Union has failed and/or
 refused to participate in any arbitration proceedings concerning the
 Bureau's grievances.  Rather, the Union has usurped the powers of an
 arbitrator and unilaterally determined that the grievances are not
 arbitrable.
 
    There is no doubt that as of April 14, 1984, the date the Bureau
 invoked arbitration, one of the two collective bargaining contracts was
 in effect.  If the Union's position that the 1983 contract was "null and
 void" is accepted, then the 1979 collective bargaining contract by its
 terms remained in effect.  In such circumstances the Union was obligated
 to proceed to arbitration pursuant to the grievance and arbitration
 provisions of such collective bargaining contract.  However, despite the
 fact that the Bureau followed the existing past practice and
 successfully secured a list of arbitrators from the FMCS, the Union,
 which was also furnished with a copy of the list of arbitrators, made no
 attempt to meet with the Bureau for purposes of perfecting the Bureau's
 request for arbitration.  In fact, the Union as late as August 17, 1984,
 some two months later, admittedly had made no attempt to even
 investigate the merits of the grievances.  /6/
 
    Accordingly, I find that the record supports the conclusion that the
 Union has failed to comply with Section 7121 of the Statute and by such
 act has violated Sections 7116(b)(1) and (8) of the Statute.
 
    Having found that Respondent violated Sections 7116(b)(1) and (8) of
 the Statute, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Authority's Rules and Regulations
 and Section 7118 of the Statute, the Authority hereby orders that the
 American Federation of Government Employees, Local 2782, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally refusing or failing to proceed to arbitration
       regarding three grievances filed by the Department of Commerce,
       Bureau of the Census on March 8, 1984, contrary to the
       requirements of Section 7121 of the Statute, after receiving
       timely notice of the Department of Commerce, Bureau of the Census'
       desire to invoke arbitration.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request, proceed to arbitration regarding the three
       grievances filed by the Department of Commerce, Bureau of the
       Census on March 8, 1984.
 
          (b) Post at its business offices and its normal meeting places,
       including all places where notices to members and employees of the
       Department of Commerce, Bureau of the Census are customarily
       posted, copies of the attached Notice, on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by the President of the American Federation
       of Government Employees, Local 2782, AFL-CIO, and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including all places where notices to members and to other
       employees are customarily posted.  The President of the American
       Federation of Government Employees, Local 2782, AFL-CIO, shall
       take reasonable steps to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (c) Notify the Regional Director of Region III, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  April 19, 1985
 
    Washington, D.C.
 
 
                 -------------- FOOTNOTES$ ---------------
 
    (1) In the absence of any objection, the General Counsel's Motion to
 Correct Transcript is hereby granted.
 
    (2) The 1977 contract was amended in 1979 to conform to the
 provisions of the Civil Service Reform Act.
 
    (3) The new contract contained a grievance procedure similar to the
 one contained in the old contract.  However, rather than using such
 terms as informal grievance, formal grievance, etc., the new contract
 set forth the progression of the grievances by steps.  Thus, step 5 of
 the new grievance procedure was equivalent to the "formal grievance" in
 the old contract and like the "formal grievance" was the last chance for
 discussion between the parties prior to submission of the matter to
 arbitration.  With respect to arbitration, the new contract called for
 the establishment of a per