32:1131(151)MC - - NTEU and FDIC, Chicago, IL and NTEU and FDIC - - 1988 FLRAdec RP - - v32 p1131



[ v32 p1131 ]
32:1131(151)MC
The decision of the Authority follows:


32 FLRA No. 151

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

NATIONAL TREASURY EMPLOYEES UNION
Union

and 

FEDERAL DEPOSIT INSURANCE CORPORATION
CHICAGO, ILLINOIS
Agency

NATIONAL TREASURY EMPLOYEES UNION
Union

and 

FEDERAL DEPOSIT INSURANCE CORPORATION
Agency

Case No. 0-MC-13
Case No. 0-MC-14

ORDER

I. Statement of the Case

On June 8, 1988, the Agency filed motions for stays of orders issued by the Federal Service Impasses Panel (Panel) in Case Nos. 88 FSIP 89 and 88 FSIP 92. On July 15, 1988, the Union filed its response opposing the Agency's motions. The Panel was invited to submit its views on the Agency's motions but declined to do so. Because the motions involve the same parties and present the same issues for the Authority's consideration, they have been consolidated for decision.

The Panel's orders direct the parties to "submit the issues in dispute to an arbitrator [of] their choice for a binding decision[.]" The underlying issues in dispute concern the Agency's obligation to bargain over proposals submitted by the Union relating to wages and money-related fringe benefits for bargaining unit employees. The issue of the Agency's obligation to bargain over the proposals has been the subject of extensive and continuing litigation.

The Panel's order in 88 FSIP 92 involves the exact proposal which was addressed by the Authority in National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 625 (1987) (Chairman Calhoun dissenting) and which is now on review before the U.S. Court of Appeals for the District of Columbia Circuit. The Panel's order in 88 FSIP 89 involves proposals which, apart from insignificant wording differences, are identical to the proposals addressed by the Authority in 28 FLRA 625 and National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 738 (1987) (Chairman Calhoun dissenting) and which are now on review before the same court.

In the unique circumstances of this case and for the reasons discussed below, we grant the Agency's motions for stays of the Panel's orders in Case Nos. 88 FSIP 89 and 88 FSIP 92.

II. Background

The parties' dispute as to the Union's wage proposal involved in 88 FSIP 92 is longstanding. The Agency has asserted since at least 1981 that it has no obligation to bargain over the Union's proposal. In March 1981, the Union filed a negotiability appeal of the Agency's allegation that the Union's wage proposal, regarding employee salary structure and a productivity committee, was outside the duty to bargain. In National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 14 FLRA 598 (1984) (Member Haughton dissenting), the Authority found that the proposal was outside the duty to bargain. The Authority based its finding on a compelling need demonstrated by the Agency for its regulation which maintained pay equity by means of a uniform salary structure throughout the Agency.

In July 1984, the Union filed a petition for review of the Authority's decision in the U.S. Court of Appeals for the District of Columbia Circuit. National Treasury Employees Union v. FLRA, No. 84-1286 (D.C. Cir. July 6, 1984). On August 20, 1984, while the Union's petition for review was pending, the Agency issued a document announcing the establishment of an Agency cost-of-living adjustment to the salaries of all Agency employees. In light of that issuance by the Agency, the Authority filed a motion with the court requesting remand of the record in that case in order to consider the relevance, if any, of that issuance to the Authority's decision on the negotiability of the proposal. On April 26, 1985, the court granted the Authority's motion.

The Authority reconsidered its decision in light of the Agency's issuance. In National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 21 FLRA 282 (1986), the Authority determined that the proposal was outside the duty to bargain. The Authority found that the cost-of-living adjustment to employee salaries did not change the compelling need for a uniform formula for calculating employee salaries.

The Union again sought review of the Authority's decision in the U.S. Court of Appeals for the D.C. Circuit. On review, the court reversed the Authority's decision as to the compelling need determination and remanded the case. The court also noted that in further proceedings the Authority should be mindful of the bearing which the question of the negotiability of pay and fringe benefits had on the case. National Treasury Employees Union v. FLRA, 813 F.2d 472 (D.C. Cir. 1987) (mem.).

On remand, the Authority accepted as the law of the case the court's holding that the Agency's regulation does not bar negotiation of the proposal and found the proposal to be within the duty to bargain. National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 625 (1987) (Chairman Calhoun dissenting).

While the Authority was considering the wage proposal on remand from the court, the Authority also had before it another negotiability case involving the Agency and the Union. That case concerned a proposal regarding money-related fringe benefits which the Agency provides unit employees at its discretion, rather than benefits which are specifically provided by law. In National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 738 (1987) (Chairman Calhoun dissenting), the Authority found the money-related fringe benefits proposal to be within the duty to bargain.

The Agency then requested the Authority to reconsider and stay the Authority's decisions on both the wage and money-related fringe benefits proposals. The Union opposed the request. The Authority denied the Agency's request. National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 29 FLRA 1465 (1987) (Chairman Calhoun dissenting).

Thereafter, the Agency sought review, and the Authority sought enforcement, of the Authority's decisions and orders on both the wage and money-related fringe benefits proposals. FLRA v. FDIC, Nos. 87-1716 and 87-1717 (D.C. Cir.) (applications for enforcement filed November 25, 1987); FDIC v. FLRA, Nos. 88-1005 and 88-1006 (D.C. Cir.) (petitions for review filed January 4, 1988). The Union filed motions for summary enforcement of the Authority's orders, and the court denied the motions. These cases are pending before the court and are scheduled for oral argument on January 6, 1989.

As noted above, the Panel's order in 88 FSIP 92 involves the exact proposal which was addressed by the Authority in 28 FLRA 625 and which is now before the court; the Panel's order in 88 FSIP 89 involves proposals which are substantively the same as the proposals addressed by the Authority in 28 FLRA 625 and 28 FLRA 738, and which are now before the court.

In addition, other related cases are pending at various stages of the Authority's administrative proceedings. For example, four pending unfair labor practice cases, Case Nos. 1-CA-80086, 2-CA-80092, 3-CA-80010, and 5-CA-70447, involve allegations that the Agency improperly refused to bargain over changes to the Agency's own health insurance plan. Among other things, the Agency contends that it is not required to bargain over this subject matter for reasons asserted in the cases now pending before the court. Further, in addition to the recent court decisions involving wage and money-related fringe benefit proposals referenced by the Agency in its brief and noted below, numerous other cases involving these issues are pending in the courts of appeals.

III. Positions of the Parties

The Agency argues that its motions should be granted because interest arbitration of disputes involving negotiability matters is inappropriate when the negotiability of the subjects involved in the dispute is not settled. The Agency further contends that the Authority's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) dictates that the Panel's choice of interest arbitration to attempt to resolve this matter is inappropriate. The Agency asserts that in Carswell, the Authority determined that interest arbitration was appropriate for resolution of collective bargaining impasses involving the negotiability of issues in which the subject matter precedent was well settled. The Agency contends that the negotiability of the subject matter here involved is "in flux," given the recent decisions on the negotiability of proposals concerning wages and money-related fringe benefits in Department of the Treasury, Bureau of Engraving and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988) and Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988). Agency Motions at 7 (0-MC-13), 15 (0-MC-14).(*)

The Agency also argues that interest arbitration should not be ordered at this time because the issue of the negotiability of substantively identical proposals is pending before the U.S. Court of Appeals for the District of Columbia Circuit. In its motion in 0-MC-14, the Agency maintains that the court has "exclusive jurisdiction" over the subject matters involved in those cases under 5 U.S.C. § 7123(c). Finally, the Agency asserts that the parties are not at impasse because the parties have not bargained over the Union's proposals.

The Union contends that the Authority has no jurisdiction to grant the Agency's motions. The Union argues that the Panel is empowered to direct the parties to interest arbitration under 5 U.S.C. § 7119(c)(1) and that the Authority is not authorized to directly review Panel actions. The Union maintains that the Authority's enumerated responsibilities under 5 U.S.C. § 7105 do not include the power to stay Panel proceedings. The Union asserts that any stay of the Panel's proceedings must be sought from the U.S. Court of Appeals for the D.C. Circuit. Finally, the Union argues that even if the Authority has the power to grant the Agency's motions, the Authority should not do so because (1) there are no extraordinary circumstances in this case, (2) granting the motions would interfere with the statutory scheme for impasse resolution, and (3) the parties are at impasse and implementation of the Panel's orders is appropriate.

IV. Discussion

We first consider whether, as a general matter, the Authority is empowered to stay its orders. As to this question, 5 U.S.C. § 705 states in relevant part that "[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review." The authority given to an administrative agency to stay its orders under 5 U.S.C. § 705 when "justice so requires" is less restricted than that of a reviewing court to postpone the effective date of an agency's order or otherwise maintain the status quo; the reviewing court may take such action only "to the extent necessary to prevent irreparable injury." See 9 Moore's Federal Practice 218.02[2]. See also Federal Rules of Appellate Procedure, Rule 18 ("Application for a stay of a decision or order of an agency pending direct review in the court of appeals shall ordinarily be made in the first instance to the agency."); Superior Trucking Co., Inc. v. United States, 614 F.2d 481 (5th Cir. 1980).

The provisions of the Statute are also instructive. Section 7105(a)(2)(I) of the Statute states that the Authority shall take actions which are necessary and appropriate to effectively administer the Statute. Section 7101(b) of the Statute states that its provisions should be interpreted in a manner consistent with the requirement of an effective and efficient Government. Therefore, in addition to assigning the Authority with specific enumerated responsibilities in other subsections of section 7105, the Statute provides the Authority with the flexibility to take actions consistent with the effective administration of the Statute.

In the case before us, we are asked to stay two orders of the Panel, which is an entity within the Authority. 5 U.S.C. § 7119(c)(1). The Panel's orders were issued in proceedings which resulted directly from Authority negotiability decisions involving the same parties and the same proposals and which are now before the court of appeals. The underlying dispute--the Agency's obligation to bargain over the proposals--has been and continues to be the subject of extensive litigation. The Panel's orders did not resolve the negotiation impasses presented to it, but rather directed the parties to submit their disputes to interest arbitration for a binding decision.

In Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), we discussed the authority of the Panel and interest arbitrators to address duty to bargain issues. We noted that there is now a substantial body of Authority precedent resolving numerous duty to bargain issues, and that that precedent was to be considered and applied by third parties like the Panel and interest arbitrators in resolving impasses. We also stated that if an interest arbitrator is presented with a duty to bargain question and determines that he or she can resolve that question and does so, we would consider a number of factors in determining the correctness of the arbitrator's action:

(1) was the proposal raising the duty to bargain issue substantively identical to one which was previously addressed by the Authority? (2) were the parties' contentions before the arbitrator similar to ones addressed by the Authority in previous cases? (3) did the arbitrator cite and discuss applicable Authority case law and other relevant precedent? and (4) are there any other considerations which lead to a conclusion that the arbitrator correctly or incorrectly considered the duty to bargain issue?

Id. at 623.

Our discussion in Carswell, therefore, indicates that consideration of duty to bargain questions by third parties like the Panel and interest arbitrators is appropriate only where the duty to bargain questions have been resolved by precedent and the answers to those questions are well settled. Before directing a matter to interest arbitration, the Panel should itself determine whether such an action is appropriate in light of any pending duty to bargain questions. Carswell is not intended to suggest that interest arbitration is appropriate where, as in the unusual case before us, the underlying duty to bargain issue has been brought to the Panel's attention, arises directly from an Authority negotiability determination which is now before the court of appeals, and canno