31:1151(96)PS - Decision on Request for Cease and Desist Order and Request for General Statement of Policy or Guidance -- 1988 FLRAdec PS



[ v31 p1151 ]
31:1151(96)PS
The decision of the Authority follows:


  31 FLRA NO. 96

                                          Case No. 0-PS-31

DECISION ON REQUEST FOR CEASE AND DESIST ORDER AND REQUEST FOR
GENERAL STATEMENT OF POLICY OR GUIDANCE

     I. Statement of the Case

     On March 11, 1988, the Department of the Navy (Agency), on
behalf of the Marine Corps Development and Education Command,
Quantico, Virginia, requested the Authority to direct the Federal
Service Impasses Panel (Panel) to cease and desist from directing
the Agency and Local 1786, American Federation of Government
Employees (Union) to engage in interest arbitration to resolve a
bargaining dispute. In the alternative, the Agency requests us to
issue a policy statement that the Panel is without authority to
direct parties to engage in interest arbitration. No  submissions
have been filed by other parties. For the reasons that follow, we
deny the Agency's requests.

     II. Background

     While renegotiating their basic collective bargaining
agreement, the Agency and the Union reached impasse over
proposals concerning annual and sick leave for temporary and
intermittent nonappropriated fund employees. The Union requested
the Panel's assistance in settling the impasse, and the Panel
accepted the Union's request. The Panel denied the Agency's
motion to dismiss the case on the ground that there was a dispute
over negotiability of the proposals.

     The Panel held a 2-day factfinding hearing on September 9
and 10, 1987. Following the hearing, the Panel factfinder issued
a report dated December 17, 1987, recommending that the parties
adopt the Agency's proposals.

     The Union rejected the factfinder's report and
recommendation. Subsequently, the Panel, by letter dated February
22, 1988, directed the parties to submit the disputed issues to
Panel Member Daniel M. Kruger, acting as arbitrator, for a
binding decision.

     III. Position of the Agency

     A.   Request for Order to Cease and Desist from Directing
          Interest Arbitration

     The Agency maintains that we have the power under the
Federal Service Labor - Management Relations Statute (the
Statute) to order the Panel, a component of the Authority, to
cease and desist from acting beyond its statutory authority. The
Agency contends that the Panel does not have authority to direct
parties to engage in interest arbitration unless that arbitration
is voluntarily agreed upon by the parties. The Agency argues that
nothing in the Statute or its legislative history provides for
other than voluntary interest arbitration and maintains that
Congress intended to withhold the power to direct that form of
arbitration from the Panel.

     The Agency states that its request is supported by the
following extraordinary circumstances:

     (1) The Agency may be subject to an unfair labor practice
charge if it refuses to participate in the interest arbitration
in the belief that it is an illegal proceeding.

     (2) The Agency will forfeit its opportunity to have the
Arbitrator consider its views on jurisdiction and on the
merits.

     (3) The Agency will be deprived of judicial review if the
dispute is decided by interest arbitration because the only
method of obtaining review of an interest arbitration award is by
filing exceptions with the Authority under section 7122 of the
Statute.

     (4)  The Agency head will forfeit the right under section 7114
(c) of the Statute to review the provisions resulting from
interest arbitration for consistency with law, rule, and
regulation.

     (5) If the interest arbitration results in the imposition of
illegal agreement provisions, the Agency will be bound by those
provisions for the life of the agreement.

     B. Request for Statement of Policy

     The Agency requests that if we do not grant a cease and
desist order, we issue a policy statement on the following
question:

       Is the Federal Service Impasses Panel authorized
       under the terms of 5 U.S.C. 7119(c)(5)(B)(iii)
       to direct parties to engage in interest
       arbitration where the parties have not "agree(d)
       to adopt a procedure for binding arbitration of
       the(ir) negotiation impasse" in accordance with
       5 U.S.C. 7119(b)(2)?

The Agency asks that we find that the Panel lacks the authority
to direct parties to engage in interest arbitration. In support
of its request, the Agency reiterates its arguments relating to
its request for a cease and desist order.

     The Agency contends that its request for a statement of
policy meets the requirements contained in Part 2427 of the
Authority's Rules and Regulations. The Agency notes that it is
aware that under section 2427.2(b) of the Rules and Regulations,
the Authority ordinarily will not consider a request for a
statement of policy related to any matter which is pending before
the Panel. However, the Agency asserts that the extraordinary
circumstances present in this case support its request, even
though the case involves a procedure employed by the Panel in a
current case.

     IV. Discussion

     We have considered the Agency's requests and have determined
that there is no  basis to order the Panel to cease and desist
from directing the parties to engage in interest arbitration to
settle their dispute. Further, the request for a statement of
policy does not satisfy the standards governing the issuance of
general statements of policy contained in Part 2427 of the
Authority's Rules and Regulations.

     First, as the Agency acknowledges, its requests concern a
procedure used by the Panel in resolving a current case before
it. Therefore, it is a "matter" before the panel under section
2427.2(b) of our Rules and Regulations and, therefore, not
subject to our consideration. Second, the question raised in the
Agency's requests can be and has been resolved by other means. */


     The question presented by the Agency in its requests was
resolved in United States Department of Justice, Immigration and
Naturalization Service and American Federation of Government
Employees, National Border Patrol Council, 31  FLRA  No.  94
(1988), slip op. at 4-6. That case concerned an interest
arbitrator's award to which both parties filed exceptions. As one
of its exceptions, the agency asserted that the award was
deficient in its entirety because the Panel exceeded its
authority under section 7119 of the Statute when it directed the
parties to use binding arbitration to resolve their impasse. We
denied that exception and held that section 7119 authorizes the
Panel to direct parties to use binding interest arbitration to
resolve their impasses. We found that nothing in the Statute or
its legislative history indicates a congressional intent to deny
the Panel that authority. Further, we found that authorizing the
Panel to direct parties to binding arbitration to resolve an
impasse effectuates the purposes and policy of the Statute. Slip
op. at 6.

     V. Decision

     The guidance sought by the