35:0026(5)NG - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms - - 1990 FLRAdec NG - - v35 p26
[ v35 p26 ]
The decision of the Authority follows:
35 FLRA No. 5
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
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 pri