30:1092(118)AR - DODDS and Overseas Education Association -- 1988 FLRAdec AR
[ v30 p1092 ]
The decision of the Authority follows:
30 FLRA NO. 118 30 FLRA 1092 28 JAN 1988 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Agency and OVERSEAS EDUCATION ASSOCIATION Union Case No. O-AR-1349 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Robert E. Mullin. The Arbitrator interpreted the parties' collective bargaining agreement concerning the bargaining obligations of the parties at the local, regional and national levels. Exceptions to the award were 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. We conclude that the Agency has not established that the Arbitrator's award is contrary to law. Therefore, we deny the exceptions. II. Background The Union filed a grievance concerning the Agency's alleged misinterpretation of Article 7 of the parties' agreement. Article 7, entitled "Negotiations over Proposed Changes in Working Conditions or Policies," identifies matters that are appropriate for negotiation at the national and regional levels, matters that are appropriate for discussion at the local level, and the manner in which management-proposed changes may be implemented. The Union argued that changes may not be implemented by the Agency while bargaining proposals are outstanding until the proposals are either agreed upon or until the proposals are submitted to the national level for resolution, for a negotiability appeal, or for invocation of impasse proceedings. The record in this case indicates that the national level is the level of exclusive recognition between the parties. III. Arbitrator's Award The Arbitrator first determined, contrary to the Agency's assertion, that the Union had filed a "grievance" within the meaning of section 7103(a)(9) of the Statute. He noted that the definition of grievance includes any complaint by any labor organization concerning the interpretation of a collective bargaining agreement. As to the merits of the dispute the Arbitrator noted testimony that in negotiating Article 7 of the collective bargaining agreement, the Union sought to ensure its right to negotiate before implementation of changes in conditions of employment by management. Award at 9. The Arbitrator found that Article 7 provides for negotiations at the national level, in addition to negotiations at lower levels, and that only representatives at the national level "formally" may declare an impasse or a proposal nonnegotiable. Award at 11. He further found that nothing in the record before him indicated that by agreeing to Article 7, the Union waived its right to completed negotiations before implementation of management-proposed changes. Award at 11-12. The Arbitrator noted that management may implement a particular change at its own risk. However, he concluded that because of the limited experience of representatives of both the Union and the Agency at the local and regional levels, the parties agreed to forward negotiability disputes to the national level for an attempt to resolve lower level differences. Award at 13. The Arbitrator sustained the Union's grievance and set forth the circumstances under which management at the various levels could implement changes in personnel policies and practices or other general conditions of employment. The Arbitrator further determined that management at the local and regional levels could not declare matters or proposals to be "nonnegotiable." Rather, the Arbitrator concluded that only management at the national level, the level of exclusive recognition, could make such declarations. IV. Exceptions The Agency contends that the award is contrary to law. More specifically, the Agency claims that the award would prevent managers at the local and regional levels from declaring matters nonnegotiable and would require them to hold proposed changes in abeyance until the national level has made a declaration of nonnegotiability. The Agency asserts that this result would conflict with its right to implement changes in various circumstances, specifically, when the Union submits nonnegotiable proposals, when bargaining is limited to impact and implementation and the Union has submitted only substantive bargaining proposals, and when changes have only a "de minimis" impact. In support of its position, the Agency noted a decision of the Authority's Regional Director, subsequently upheld by the General Counsel, in which the Regional Director determined that no violation of the Statute had occurred when changes were implemented at the school level and the regional level refused to bargain over the Union's nonnegotiable proposals. The Agency also alleges that the award is inconsistent with management's right to assign work under section 7106(a) of the Statute. The Agency claims that by allegedly requiring officials at various levels to perform the task of declaring matters to be nonnegotiable and preventing officials at other levels from so doing, the award interferes with management's right to assign work. The Union argues that: (1) the award does not conflict with the Agency's rights as alleged; (2) the award does not violate the Statute by requiring that allegations of nonnegotiability be made only at the level of recognition; and (3) the Agency's reliance on the General Counsel's dismissal of the unfair labor practice charge is misplaced. V. Analysis and Conclusions We conclude that the Agency has failed to establish that the Arbitrator's award is deficient. The Agency's arguments constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement. it is well established that such disagreement provides no basis for finding an award deficient. See, for example, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater, Virginia Federal Employees Metal Trades Council, 26 FLRA 799 (1987). In reaching that conclusion, we find, contrary to the Agency's assertion, that the award does not conflict with the law regarding the implementation of changes in conditions of employment. With regard to changes that have only a "de minimis" impact on conditions of employment of bargaining unit employees, the Arbitrator specifically stated that there is no obligation to bargain over such changes. Award at 14. Therefore, the award does not prevent implementation of such changes. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (in which the Authority set forth the standard used to determine whether changes in conditions of employment affecting bargaining unit employees give rise to a bargaining obligation). With regard to changes in conditions of employment in other circumstances, the Arbitrator simply determined that the parties had agreed that management at the national level would declare proposals or matters nonnegotiable before changes could be implemented. The Arbitrator also noted that management could implement changes at its own risk. Therefore, we reject the Agency's assertion that the award would prevent management from implementing proposed changes. Furthermore, the award does not preclude local and regional officials from alleging that proposals are nonnegotiable. We find that the Arbitrator merely interpreted the parties' agreement as providing that negotiability disputes within the meaning of the Statute are to be referred to the national level for an attempt to resolve lower-level differences. This interpretation does not suggest that officials at the local and regional levels may not allege that matters or proposals are outside the duty to bargain. If that were the case, there would be no disputes to refer to the national level. Rather, under the Arbitrator's interpretation of the agreement, managers at the local and regional levels do not make formal declarations of nonnegotiability. Their allegations would be subject to review, further negotiations, and final determination at the national level, the level of exclusive recognition. Nothing in the Statute precludes the negotiation or enforcement of such a process for making and reviewing negotiability allegations. See Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA 52 (1983) (in which the arbitrator interpreted the parties' agreement as authorizing negotiations at the national level and the Authority, noting that the union's exclusive recognition was at that level, held that the Statute did not require negotiations at other than the national level). For the same reasons, we likewise reject the Agency's assertion that the award interferes with management's right to assign work. Finally, we find that the Agency's reliance on the dismissal of an unfair labor practice charge in support of its position is misplaced. The dismissal letter does not address the level of Agency management at which declarations of nonnegotiability may be made. Rather, the letter concludes only that since the proposals presented were nonnegotiable, implementation of various changes in conditions of employment did not violate the Statute. Further, the decision not to issue a complaint is a nonreviewable, nonprecedential exercise of the General Counsel's prosecutorial responsibility. Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982). Therefore, the dismissal of the charge is not binding on the Arbitrator or the Authority. VI. Decision For the reasons set forth above, the Agency's exceptions are denied. 1 Issued, Washington, D.C., January 28- 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 The Agency also requested a stay of the award when it filed its exceptions with the Authority on April 20, 1987. However, effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.