21:0445(61)AR - Air Force, Flight Test Center, Edwards AFB, Calif. and Interdept'l Local 3854, AFGE -- 1986 FLRAdec AR
[ v21 p445 ]
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.