26:0563(66)AR - Energy, Washington, DC, and NTEU -- 1987 FLRAdec AR



[ v26 p563 ]
26:0563(66)AR
The decision of the Authority follows:


 26 FLRA No. 66
 
 U.S. DEPARTMENT OF ENERGY 
 WASHINGTON, D.C.
 Agency
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
                                            Case No. 0-AR-1189
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on the exceptions to the interest
 arbitration award of Arbitrator Howard W. Solomon filed by the Agency
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute (the Statute) and part 2425 of the Authority's Rules and
 Regulations.  The Union filed an opposition.
 
                  II.  Background and Arbitrator's Award
 
    The National Treasury Employees Union requested the assistance of the
 Federal Service Impasses Panel (the Panel) in a bargaining impasse with
 the Agency concerning ground rules for negotiation of a new collective
 bargaining agreement.  The Panel recommended that the dispute be
 referred to Mr. Solomon, Executive Director of the Panel, for
 mediation-arbitration.  Mr. Solomon was authorized by the Panel to
 mediate with respect to all issues and to render a decision as an
 arbitrator on any that remained unresolved.  During the course of
 mediation, the parties reached agreement on several issues.  However,
 the dispute persisted as to a number of other issues, including an issue
 concerning the submission of Union proposals on alternative work
 schedules for employees.  Mr. Solomon proceeded to resolve all of the
 remaining issues through arbitration.
 
    The dispute before us concerns the ground rules for negotiating
 alternative work schedules (AWS).  The Union argued for a rule to the
 effect that if the Agency alleged that an AWS proposal would have an
 adverse impact on the Agency, the Union would be permitted to submit
 another AWS proposal.  The Union contended that such a ground rule was
 necessary because of the difficulty it encountered in bargaining with
 the Agency over alternative work schedules during the term of the
 parties' then current agreement.
 
    The Agency opposed the proposed rule.  According to the Arbitrator,
 although the agency did not dispute its duty to bargain concerning the
 proposal, the Agency claimed that it had some "questions" about the
 legality of the proposed rule.  Moreover, the Agency asserted that
 unfair labor practice procedures were the best way to resolve any
 dispute over Agency unwillingness to consider a second AWS proposal from
 the Union if the Agency claimed that a previous proposal would have an
 adverse impact.
 
    The Arbitrator found that it was unlikely that the subject of
 alternative work schedules could be successfully negotiated without an
 exchange of proposals and counter-proposals.  The Arbitrator determined
 that the Agency's position would frustrate the bargaining process.  He
 concluded that the Union's proposed ground rule, which affords it an
 opportunity to make a second proposal, clearly provided a more
 reasonable basis for resolving the issue.  Therefore, in his decision of
 June 27, 1986, the Arbitrator directed the parties to adopt the ground
 rule proposed by the Union.  The Arbitrator also established a time
 limit for the Agency to declare whether a particular AWS proposal of the
 Union had any adverse impact.
 
    The ground rule provided as follows:
 
          No counter proposals shall extend the scope of that party's
       original proposal.  Except, however, that any AWS proposal found
       to have adverse agency impact may be replaced by another AWS
       proposal.  Any declaration of adverse impact on the Union's May
       23, 1986, AWS proposal shall be submitted to the Union in writing
       no later than July 11, 1986.
 
    The Agency filed exceptions to the underlined portion of the
 provision.
 
                             III.  Exceptions
 
    In its exceptions, the Agency contends that the disputed portion of
 the ground rule violates the Federal Employees Flexible and Compressed
 Work Schedules Act of 1982, 5 U.S.C. Sections 3401, 6101 and note, 6106,
 6120-6133, which was made permanent under the Federal Employees Flexible
 and Compressed Work Schedules Act of 1982, Permanent Authority (the 1986
 Act), Pub. L. No. 99-196, 99 Stat. 1350.  More specifically, the Agency
 argues that the award is contrary to 5 U.S.C. Sections 6131(a) and
 6131(c)(3)(A), because it would preclude management, after July 11,
 1986, from declaring that the Union's AWS proposal has an adverse Agency
 impact.
 
    Second, the Agency contends that the award violates section 2472.2(j)
 of the Panel's Rules and Regulations, which defines "impasse" in AWS
 disputes.  The Agency argues that the regulatory provision contemplates
 that the parties should meet to discuss any proposal before the Agency
 declares an adverse impact and that the disputed ground rule would
 require a declaration of adverse impact before the parties discuss the
 proposal.  The Agency further argues that under the regulation, the
 decision as to when to declare an adverse impact is up to the Agency and
 not the Arbitrator.  Third and finally, the Agency contends that the
 Arbitrator improperly resolved an issue relating to the duty to bargain
 which, under section 7105(a)(2)(E) of the Statute, must be resolved only
 by the Authority.
 
                       IV.  Analysis and Conclusions
 
    We find that the Agency has misconstrued the Arbitrator's award and
 has failed to establish that the award is deficient as alleged.
 
    First, the ground rule established by the Arbitrator does not
 preclude the Agency from declaring that the particular alternative work
 schedule proposed by the Union would have an adverse impact.  Rather,
 the ground rule merely established a due date for the Agency to make a
 declaration regarding the Union's May 23, 1986 proposal.  The Agency had
 approximately two weeks from the date of the Arbitrator's June 27, 1986
 award to evaluate the proposal and make such a declaration if it wished
 to do so.  Moreover, the Agency had an ample opportunity to consider the
 proposal prior to the award.  The ground rule therefore clearly does
 nothing more than facilitate bargaining on the Union's AWS prposal.
 
    We have determined that Congress intended that the use of alternative
 work schedules was to be fully negotiable, subject only to the
 provisions of the Federal Employees Flexible and Compressed Work
 Schedules Act of 1982 itself.  American Federation of Government
 Employees Local 1934 and Department of the Air Force, 3415 ABG, Lowry
 AFB, Colorado, 23 FLRA No. 107 (1986), slip op. at 2.  We further held
 in that decision that under 5 U.S.C. Section 6131(a)-(c), an agency may
 object to the negotiation of an AWS proposed by a labor organization
 only when the agency can establish that the proposed schedule will have
 an adverse agency impact;  and that if the parties need assistance in
 resolving a dispute concerning an alleged adverse impact they must
 present their dispute to the Federal Service Impasses Panel in
 accordance with 5 U.S.C. Section 6131(c)(2) and part 2472 of the Panel's
 Rules and Regulations.  Id. at 3.  Of course, as we held in National
 Treasury Employees Union, Chapter 27, and Department of the Treasury,
 Internal Revenue Service, 25 FLRA No. 27 (1987), issues as to whether a
 proposed alternative work schedule conflicts with the 1982 Act are
 appealable to the Authority under section 7117 of the Statute.  Slip.
 op. at 3.
 
    We find that the ground rule established by the Arbitrator in this
 case is consistent with the pertinent provisions and legislative history
 of the 1982 Act.  The rule expressly provided for the Agency to exercise
 its right to declare that the AWS proposal of the Union would have an
 adverse impact and the rule also facilitates bargaining on the proposal.
  Moreover, the ground rule would cease to have any effect after
 negotiations are completed.  If the Union's AWS proposal became part of
 the parties' new collective bargaining agreement through the negotiation
 process, the rule would not operate to prevent the Agency from
 subsequently seeking to terminate the provision on the basis that the
 provision had an adverse impact and the Panel would not be prevented
 from resolving any dispute concerning such an allegation.  We conclude
 that the Arbitrator's award is not contrary to 5 U.S.C. Section 6131 as
 the Agency alleges.
 
    We likewise conclude that the Agency has failed to demonstrate that
 the ground rule established by the Arbitrator is contrary to the Panel's
 Rules and Regulations.  As stated above, the rule expressly provided for
 the Agency to declare an adverse impact regarding the Union's AWS
 proposal if it wished to do so and further provided ample opportunity
 for the Agency to make such an allegation.  Nothing in the Arbitrator's
 award prohibited the parties from discussing both the proposal and any
 Agency allegation or from referring any related dispute to the Panel for
 resolution in accordance with Panel procedures.
 
    Finally, we conclude that the Agency has failed to establish that the
 Arbitrator's award is contrary to section 7105(a)(2)(E) of the Statute
 because the Arbitrator assertedly resolved a negotiability issue.  The
 Agency fails to provide any support for its allegation.  Moreover, it
 does not appear from the Arbitrator's award that the Arbitrator
 addressed any negotiability issue whatsoever in resolving the dispute
 before him.  On the contrary