21:0445(61)AR - Air Force, Flight Test Center, Edwards AFB, Calif. and Interdept'l Local 3854, AFGE -- 1986 FLRAdec AR



[ v21 p445 ]
21:0445(61)AR
The decision of the Authority follows:


 21 FLRA No. 61
 
 DEPARTMENT OF THE AIR FORCE, 
 FLIGHT TEST CENTER, 
 EDWARDS AIR FORCE BASE, 
 CALIFORNIA
 Activity
 
 and
 
 INTERDEPARTMENTAL LOCAL 3854, 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-887
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the interest
 arbitration award of Arbitrator and Chairman of the Federal Service
 Impasses Panel Roy M. Brewer filed by the Department of the Air Force
 (the Agency) under section 7122(a) of the Federal Service
 Labor-Management Relations Statute /1/ and part 2425 of the Authority's
 Rules and Regulations.  The Union filed an opposition to the Agency's
 exceptions.  The Federal Service Impasses Panel filed a submission on a
 jurisdictional issue raised by the Union in the case and the Agency
 filed a response to the Panel's submission.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The dispute before Mr. Brewer involved an impasse in negotiations
 between the parties concerning a Union proposal that a "class A
 (AUTOVON) telephone line be provided in the union office at the
 employer's expense (installation and monthly charge)." The impasse was
 referred to the Federal Service Impasses Panel under section 7119 of the
 Statute.  /2/ The parties subsequently accepted the recommendation of
 the Panel that they submit the dispute to Mr. Brewer for "med-arb"
 (mediation-arbitration) procedures, under which procedures he would
 first attempt to resolve the matter through mediation.  The Panel
 advised the parties:  "Should the issue concerning the Union's use of a
 telephone not be resolved in this manner, he (Mr. Brewer) will dispose
 of it by issuing a final decision." The dispute persisted after
 mediation and Mr. Brewer proceeded through arbitration to decide the
 matter.  In an "Arbitrator's Opinion and Decision," Mr. Brewer found
 that he was not persuaded that an AUTOVON (an acronym for the Department
 of Defense's "Automatic Voice Network") phone line should be installed
 in the Union's office as proposed.  However, the Arbitrator also found
 that the Union's president, who was located at another Air Force base in
 California, had an AUTOVON phone in his office and that the Activity's
 labor relations officer used AUTOVON to communicate with him.  The
 Arbitrator concluded that the Union's chief representative at the
 Activity should have access to the system for reasonable periods of time
 for the same limited purpose, i.e., to discuss issues arusing under the
 parties' collective bargaining agreement affecting bargaining unit
 employees at the Activity which must be decided by the Union president.
 Therefore, as his award, the Arbitrator directed that the Union's
 proposal be withdrawn and that the parties adopt wording in their
 agreement to the effect the Union's chief representative at the Activity
 be permitted to use the AUTOVON system for a reasonable amount of time
 for the purpose of communicating with the Union's president about
 matters arising under the parties' agreement which affect Activity
 employees represented by the Union.  Mr. Brewer issued his decision as
 "Arbitrator and Chairman, Federal Service Impasses Panel."
 
    The Agency then filed its exceptions and a request for a stay of the
 Arbitrator's decision with the Authority.  In its opposition, the Union
 raises a threshold issue concerning the jurisdiction of the Authority in
 this matter.  As indicated above, the Federal Service Impasses Panel
 filed a submission on that issue and the Agency filed a response to the
 Panel's submission.
 
                        III.  JURISDICTIONAL ISSUE
 
                          A.  Positions Presented
 
    1.  Union Position.  The Union's position is that the Arbitrator's
 decision is an action of the Panel under section 7119 and, therefore,
 not reviewable by the Authority on exceptions filed under section 7122
 of the Statute.  The Union further maintains that such actions are
 reviewable only through unfair labor procedures on an alleged violation
 of section 7116 of the Statute /3/ for non-compliance with the Panel
 action.
 
    2.  FSIP Position.  The Panel's position is that the Arbitrator's
 decision is not a final action of the Panel.  In the Panel's view, since
 the Air Force rejected the Arbitrator's decision, the impasse remains
 unresolved and the next appropriate step is for the Panel to take
 whatever action is necessary to end the impasse.  The Panel contends
 that any review of Mr. Brewer's decision can be achieved only through
 unfair labor practice procedures after the Panel takes such final
 action.  The Panel further expresses its opinion that Congress did not
 intend the arbitration award review procedures of section 7122 of the
 Statute to encompass decisions issued by Panel members or Panel staff
 employees pursuant to recommendations or directions of the Panel.  The
 Panel concludes that filing exceptions to Mr. Brewer's decision is
 inappropriate and the Authority should decline jurisdiction over the
 matter.
 
    3.  Air Force Position.  The Agency's position is that exceptions to
 awards which result from Panel-directed interest arbitration proceedings
 may properly be filed with the Authority under section 7122 of the
 Statute.  The Agency contends that Panel Members who conduct such
 proceedings are not acting as Members of the Panel but, rather, as
 interest arbitrators the same as interest arbitrators who have been
 mutually selected by the parties and whose awards are subject to appeal
 under section 7122 of the Statute.
 
                       B.  Analysis and Conclusions
 
    Upon careful consideration of the positions presented, the relevant
 provisions of the Statute and related legislative history, the Authority
 concludes that it has jurisdiction to review the Arbitrator's Opinion
 and Decision under section 7122 of the Statute.  In reaching this
 conclusion, the Authority determines as follows:
 
    First, the Arbitrator's Opinion and Decision excepted to by the
 Agency in this case was final and not an intermediate or interlocutory
 ruling.  In that regard, the Panel expressly advised the parties, in
 acknowledging their acceptance of the Panel's "med-arb" recommendation,
 that if Mr. Brewer's mediation efforts failed to resolve the impasse,
 "he will dispose of it by issuing a final decision." (Emphasis added.)
 There is no mention in the Panel's letter or in Mr. Brewer's decision
 that his decision was subject to further review or any action by the
 full Panel.  Thus, it is clear that the Arbitrator's decision was a
 final disposition of the matter.
 
    Second, the Authority finds that the Arbitrator's Opinion and
 Decision is an interest arbitration award by an individual arbitrator
 and not a final action of the Panel under section 7119 of the Statute.
 In that regard, there is no showing in the record before the Authority
 that the Panel as a body or institution decided the merits of the
 impasse nor does the decision itself expressly purport to be a Decision
 and Order or other final action of the Panel.
 
    Third, and finally, the Authority finds that the Arbitrator's Opinion
 and Decision is directly reviewable by the Authority on the exceptions
 filed by the Agency under section 7122 of the Statute.  As set forth in
 footnote 1 above, section 7122(a) of the Statute provides that "(e)ither
 party to arbitration under this chapter may file with the Authority an
 exception to any arbitrator's award pursuant to the arbitration (other
 than an award relating to a matter described in section 7121(f) of this
 title)." (Emphasis added.) The legislative history of this provision
 reflects that Congress clearly intended that the Authority's review
 procedures set forth in section 7122 apply to interest arbitration
 awards resulting from impasse proceedings before the Panel under section
 7119(b) of the Statute.  The House Committee on Post Office and Civil
 Service, in reporting on the language that ultimately was enacted into
 law as section 7122 of the Statute, reported as follows:
 
          Section 7122 sets forth the procedures under which a party may
       obtain review by the Authority of an arbitrator's award.  The
       procedures apply in the case of . . . an award in an arbitration
       resulting from an impasse proceeding under section 7119(b) . . . .
 
    H. Rep. No. 95-1403, 95th Cong., 2d Sess. 54-55 (1978), reprinted in
 Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978 at 702
 (1979).
 
    The Authority has recognized the intent of Congress concerning
 interest arbitration awards resulting from Panel proceedings in a number
 of decisions.  It is now well established that in impasses where the
 Panel grants the request of the parties for permission to refer their
 dispute to arbitration, any resulting interest arbitration award is
 reviewable by the Authority on exceptions filed under section 7122(a) of
 the Statute.  United States Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio and Council 214, American
 Federation of Government Employees, AFL-CIO, 15 FLRA 151, 153-154
 (1984);  Patent and Trademark Office and Patent Office Professional
 Association, 15 FLRA 990 (1984).  Additionally, it is now clear that in
 impasses where the Panel directs the parties to submit their dispute to
 mediation-arbitration, any resulting interest arbitration award by an
 arbitrator who is not also a Panel member is reviewable by the Authority
 on exceptions filed under section 7122(a) of the Statute.  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), request for clarification denied
 March 11, 1986;  Department of Housing and Urban Development and
 American Federation of Government Employees, Local 476, AFL-CIO, 18 FLRA
 No. 95 (1985).
 
    Neither the Statute nor the legislative history distinguishes between
 interest arbitration awards of individual Panel members and awards of
 other interest arbitrators.  Nor do they provide any basis for excluding
 interest arbitration awards of individual Panel members from direct
 review by the Authority under section 7122(a) of the Statute.
 
    Accordingly, the Authority concludes from the plain language of
 section 7122(a) of the Statute and the intent of Congress as expressed
 in the related legislative history that a party to an interest
 arbitration proceeding directed by the Panel may file exceptions to any
 final award of the arbitrator with the Authority, including an award of
 a Member of the Panel serving as the Arbitrator.  The Authority
 therefore confirms its jurisdiction to review the Arbitrator's Opinion
 and Decision excepted to by the Agency in this case and will proceed to
 resolve the exceptions on the merits.
 
                           IV.  FIRST EXCEPTION
 
                              A.  Contention
 
    In its first exception, the Agency contends that the Arbitrator's
 award is contrary to section 7106(b)(1) of the Statute in that the
 provision ordered by the Arbitrator to be adopted by the parties
 involves the technology of performing the work of the Agency which is
 negotiable solely at the election of the Agency.
 
                       B.  Analysis and Conclusions
 
    In American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604,
 610 (1980), enforced as to other matters sub nom. Department of Defense
 v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
 cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), the Authority
 held that a proposal, which would allow the Union access to the Air
 Force telephone system for purposes of administering the parties'
 agreement did not involve the technology of performing the work of the
 agency because it did not determine whether the agency would adopt a
 particular technology of work, e.g., utilize telephones as opposed to
 some other communications technology.  The Authority found that the
 proposal merely provided the union access to the system which the agency
 had selected and was in existence for use in connection with contract
 administration and other labor-management relations matters.  The
 Authority therefore concluded that the provision did not concern a
 matter negotiable solely at the election of the agency.  Accordingly,
 for the reasons set forth in Wright-Patterson, the Authority finds that
 the provision awarded by the Arbitrator in this case, which is
 materially the same as the pertinent proposal in Wright-Patterson, does
 not involve the technology of performing the work of the Agency and does
 not conern a matter negotiable solely at the election of the Agency.
 The Authority therefore concludes that the Agency has failed to
 establish that the award is contrary to section 7106(b) of the Statute
 as alleged.
 
                           V.  SECOND EXCEPTION
 
                              A.  Contention
 
    In its second exception, the Agency argues that the award violates
 section 7114 of the Statute in that it deals entirely with matters
 pertaining to internal union business and does not deal with conditions
 of employment of bargaining unit employees.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that the provision awarded clearly pertains to
 labor-management relations issues affecting bargaining unit employees
 arising under the parties' agreement and not to internal union business.
  Moreover, in American Federation of Government Employees, AFL-CIO,
 Local 3748 and Department of Agriculture, Science and Education
 Administration, Personnel Division, Hyattsville, Maryland, 11 FLRA 122
 (1983), the Authority held that a proposal which would have permitted
 union use of the Federal Telecommunications System for labor-management
 relations purposes concerned a matter directly related to conditions of
 employment of bargaining unit employees and was within the duty to
 bargain under the Statute.  In this case, the award specifies that use
 of the AUTOVON by the Union's chief representative at the Activity is
 limited to communications concerning matters arising under the contract
 which affect bargaining unit employees at the Activity.  Thus, for the
 reasons set forth in Department of Agriculture, Science and Education
 Administration, the provision awarded by the Arbitrator in this case,
 which is materially the same as the proposal involved in the cited case,
 concerns a matter directly related to conditions of employment of
 bargaining unit employees.  The Authority therefore concludes that the
 Agency has failed to establish that the award is contrary to section
 7114 of the Statute as alleged.
 
                           VI.  THIRD EXCEPTION
 
                              A.  Contention
 
    In its third exception, the Agency contends that the award is
 contrary to section 7117(a)(2) of the Statute.  In support of its
 contention, the Agency argues that the provision imposed by the
 Arbitrator is inconsistent with a Department of Defense policy for which
 a compelling need exists.  The Agency argues that the policy, which
 limits access to the AUTOVON system to military operational needs with
 certain exceptions, is essential to the accomplishment of the mission of
 the Agency and to the execution of Agency functions.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that the Agency has not demonstrated that the
 strictly limited provision awarded by the Arbitrator would interfere
 with any of the stated purposes of the policy, particularly in view of
 the Arbitrator's finding that the Union's president had access to the
 AUTOVON system for labor-management relations purposes and that the
 system was otherwise used for such purposes.  Therefore, without
 deciding whether the agency policy is a "rule, or regulation" within the
 meaning of section 7122(a)(1) of the Statute, the Authority concludes
 that the Agency has failed to establish that the award is contrary to
 section 7117(a)(2) of the Statute as alleged.
 
                              VII.  DECISION
 
    Accordingly, for the above reasons, the Agency's exceptions are
 denied.  The Agency's request for a stay of the award is likewise
 denied.
 
    Issued, Washington, D.C. April 24, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                                 FOOTNOTES
 
    (1) Section 7122 of the Statute provides:
 
          (a) Either party to arbitration under this chapter may file
       with the Authority an exception to any arbitrator's award pursuant
       to the arbitration (other than an award relating to a matter
       described in section 7122(f) of this title).  If upon review the
       Authority finds that the award is deficient --
 
          (1) because it is contrary to any law, rule or regulation;  or
 
          (2) on other grounds similar to those applied by Federal courts
       in private sector labor-management relations;  the Authority may
       take such action and make such recommendations concerning the
       award as it considers necessary, consistent with applicable laws,
       rules, or regulations.
 
    (2) Section 7119 of the Statute provides, in pertinent part:
 
          Section 7119.  Negotiation impasses;  Federal Service Impasses
       Panel
 
                       .   .   .   .   .   .
 
 
          (b) If voluntary arrangements, including the services of the
       Federal Mediation and Conciliation Service or any other
       third-party mediation, fail to resolve a negotiation impasse --
 
          (1) either party may request the Federal Service Impasses Panel
       to consider the matter;  or
 
          (2) the parties may agree to adopt a procedure for binding
       arbitration of the negotiation impasse, but only if the procedure
       is approved by the Panel.
 
                       .   .   .   .   .   .
 
 
          (c)(5)(A) The Panel or its designee shall promptly investigate
       any impasse presented to it under subsection (b) of this section.
       The Panel shall consider the impasse and shall either --
 
          (i) recommend to the parties procedures for the resolution of
       the impasse;  or
 
          (ii) assist the parties in resolving the impasse through
       whatever methods and procedures, including factfinding and
       recommendations, it may consider appropriate to accomplish the
       purpose of this section.
 
          (B) If the parties do not arrive at a settlement after
       assistance by the Panel under subparagraph (A) of this paragraph,
       the Panel may --
 
          (i) hold hearings;
 
          (ii) administer oaths, take the testimony or deposition of any
       person under oath, and issue subpoenas as provided in section 7132
       of this title;  and
 
          (iii) take whatever action is necessary and not inconsistent
       with this chapter to resolve the impasse.
 
          (C) Notice of any final action of the Panel under this section
       shall be promptly served upon the parties, and the action shall be
       binding on such parties during the term of the agreement, unless
       the parties agree otherwise.
 
    (3) Section 7116(a)(6) and (8) of the Statute provide:
 
          (a) . . . it shall be an unfair labor practice for an agency --
 
          (6) to fail or refuse to cooperate in impasse decisions as
       required by this chapter;
 
                       .   .   .   .   .   .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    Section 7116(b)(6) and (8) cover unfair labor practices of the same
 type by unions. 
 
 
 


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