35:0026(5)NG - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms - - 1990 FLRAdec NG - - v35 p26



[ v35 p26 ]
35:0026(5)NG
The decision of the Authority follows:


35 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

DEPARTMENT OF THE TREASURY

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

(Agency)

0-NG-1637

DECISION AND ORDER ON NEGOTIABILITY ISSUE

March 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a ground rules provision entered into by the Union and the Bureau of Alcohol, Tobacco and Firearms (BATF) and disapproved by the Department of the Treasury pursuant to section 7114(c) of the Statute.

We find that the provision is inconsistent with section 7119(b)(2) of the Statute. Therefore, the petition for review will be dismissed.

II. The Provision

In the event of impasse, the parties shall request assistance from the Federal Mediation and Conciliation Service. The parties will have arranged for a mediator from the FMCS to be available on mutually agreeable dates. Should the parties fail to reach agreement, the parties agree to submit the dispute to a mediator/arbitrator who will be selected within two weeks of the signing of these groundrules [sic]. The mediator/arbitrator has the authority to issue a recommendation. The parties agree to accept fully this recommendation,subjecto agency head review as defined in 5 U.S.C. 7114, and bargaining unit ratification. The parties will meet with the selected mediator/arbitrator on two days in January, 1989,or at a time mutually convenient to the parties.

III. Positions of the Parties

A. The Union

The Union states that the provision is part of a ground rules agreement governing contract negotiations and that it describes a procedure to be used if an impasse is reached in negotiations. The Union claims that the provision complies with both section 7119 and section 7114(c) of the Statute. More specifically, the Union asserts that the provision does not establish that a binding award will be issued and does not preclude agency head review of the mediator/arbitrator's recommendations. Rather, according to the Union, the language and intent of the provision is "that the parties agree to abide by a legally non-binding recommendation." Reply Brief at 2. The Union claims that the provision "reaches the same result as a bilateral agreement without the binding assistance of any third party, and specifically allows for agency head review." Id. at 3.

The Union asserts that since the mediator/arbitrator does not issue a binding award, it is not clear that the Federal Service Impasses Panel (the Panel) must be notified of the procedure under section 7119. However, the Union adds that "if the Authority finds that it is necessary to provide notice and receive the approval of the Panel in this situation, NTEU does not object to our agreement being administered pursuant to that case law." Id. at 4.

Finally, the Union argues that any assertion by the Agency that BATF cannot waive the Agency's right to conduct a review under section 7114(c) of the Statute because BATF itself has not been delegated review authority under section 7114(c) must fail. The Union states that the provision explicitly preserves the Agency's right to conduct a review of the mediator/arbitrator's recommendation pursuant to section 7114(c).

B. The Agency

The Agency argues that the provision establishes a binding arbitration procedure for impasse resolution. The Agency claims that section 7119(b)(2) requires prior approval of the Panel for binding arbitration procedures. Because the provision does not provide for prior Panel approval, the Agency argues that the provision conflicts with section 7119(b)(2).

The Agency also argues that the provision conflicts with section 7114(c) of the Statute because it would eliminate agency head review of the recommendations of the mediator/arbitrator. The Agency claims that once the parties have invoked binding arbitration under section 7119(b)(2), the Agency has waived its right to conduct a review under section 7114(c). The Agency also argues that since BATF has not been delegated the authority to conduct reviews of agreement provisions under section 7114(c), it cannot enter into an agreement that would cause the Agency to waive its statutory right to conduct reviews under section 7114(c).

IV. Analysis and Conclusions

In agreement with the Agency, we find that the provision is inconsistent with section 7119(b)(2) of the Statute because it constitutes a procedure for binding arbitration, but does not provide for prior Panel approval of the procedure.

We reject the Union's assertion that the provision is consistent with section 7119(b)(2). The Union asserts that the "the mediator/arbitrator in the disputed clause does not issue a binding award[.]" Reply Brief at 4. This assertion is inconsistent with the wording of the provision. Where a union's statement of intent is inconsistent with the wording of a proposal or provision, we will base our decision on the interpretation of the proposal or provision which is consistent with the plain wording. American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 79 (1987).

The provision states that the parties agree "to accept fully" the recommendations of the mediator/arbitrator, subject to agency head review under section 7114(c) of the Statute and ratification by the bargaining unit. Section 7114(c) applies to an "agreement between any agency and an exclusive representative," however, not to recommendations. Further, under section 7114(c), the Agency head may disapprove only those provisions which are inconsistent with law, rule, or regulation. Provisions which are not inconsistent with law, rule, or regulation may not be disapproved. Accordingly, if the Agency head reviewed a recommendation that complied with applicable law but, in the view of the Agency head, was objectionable on another basis, the recommendations of the mediator/arbitrator as to those provisions would nevertheless be binding on the Agency. In fact, the Union appears to acknowledge both the binding nature of the recommendations and the limited nature of Agency head review under section 7114(c) of the Statute. The Union states as follows:

Both the actual language of the clause and the statement of meaning proffered by NTEU explicitly state that no binding award will be issued, but rather that the parties agree to abide by a legally non-binding recommendation. (This assumes any language he offers that is "illegal" need not be followed.)

Reply Brief at 2.

Under these circumstances, we find that the provision establishes a procedure for binding arbitration as to every recommendation that is not inconsistent with law, rule, or regulation. There is no statutory prohibition against agreements to establish procedures for binding arbitration of negotiation impasses. In fact, we encourage the parties to agree on procedures to resolve negotiation impasses. Section 7119(b)(2) of the Statute provides, however, that the parties may agree to adopt a procedure for binding arbitration of a negotiation impasse "only if the procedure is approved by the Panel." (Emphasis added.) As the provision constitutes a procedure for binding arbitration, it must provide for prior Panel approval to comply with the requirement of section 7119(b)(2).

The provision does not provide for prior Panel approval. Although the Union states that it does not object to providing notice to and receiving the Panel's approval for the impasse resolution procedure, in our view, the Union's statement does not satisfy the requirement that the Panel approve all agreements establishing procedures for binding arbitration. Compare Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987) ("It is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate."). Consequently, we conclude that the provision is inconsistent with section 7119(b)(2) of the Statute and, therefore, is nonnegotiable. See National Treasury Employees Union and Department of Treasury, Internal Revenue Service, 35 FLRA No. 2 (1990), holding that a similar impasse resolution procedure was inconsistent with section 7119(b)(2).

Because the provision is inconsistent with section 7119(b)(2) of the Statute, the Agency properly disapproved it. Accordingly, the Union's petition for review must be dismissed. In view of this conclusion, we do not address the Agency's additional arguments concerning the mandatory nature of agency head review and the absence of delegated review authority to subordinate activities.

V. Order