38:0943(79)AR - - FDIC, Chicago Region, Chicago, IL and NTEU - - 1990 FLRAdec AR - - v38 p943
[ v38 p943 ]
The decision of the Authority follows:
38 FLRA No. 79
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL DEPOSIT INSURANCE CORPORATION
NATIONAL TREASURY EMPLOYEES UNION
December 14, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the interest arbitration award of Arbitrator Roger P. Kaplan 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 to the Agency's exceptions.
As relevant here, the Arbitrator directed the parties to adopt a provision requiring the Agency to reimburse unit employees for certain travel expenses. The Agency asserts that the portion of the Arbitrator's award encompassing this provision is deficient because the Arbitrator exceeded his authority by resolving a duty to bargain dispute and because the provision is contrary to law.
For the following reasons, we conclude that the Arbitrator's award does not constitute an arbitration award to which exceptions may be filed under section 7122(a) of the Statute. Accordingly, the exceptions must be dismissed.
During negotiations for a basic collective bargaining agreement, the parties reached impasse. The Union requested assistance from the Federal Service Impasses Panel (the Panel), which directed the parties to submit the issue in dispute to an arbitrator of their choice for a binding decision. After successfully mediating a number of disputed issues, the Arbitrator issued an arbitration award as to the remaining issues in dispute.
As noted, the Agency filed exceptions to one portion of an article pertaining to travel expenses. The Agency contends that the imposed provision is contrary to law and that the Arbitrator exceeded his authority by resolving a duty to bargain issue. The Union filed an opposition to the exceptions arguing that the award is consistent with law, rule, and regulation.(*)
III. Analysis and Conclusions
Subsequent to the filing of the Agency's exceptions and the Union's opposition in this case, the Authority issued its decision in U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346 (1990) (Department of Justice). For the reasons discussed fully in Department of Justice, we held, as relevant here, that when an interest arbitration award results from Panel-directed interest arbitration under section 7119(b)(1) of the Statute, the agency head retains the right to review the imposed provisions in accordance with section 7114(c).
We held further that interest arbitration directed pursuant to section 7119(b)(1) does not constitute binding arbitration to which exceptions can be filed under section 7122(a). Instead, provisions imposed as a result of Panel-directed interest arbitration are subject to challenge on the same basis as Panel decisions rendered pursuant to section 7119 of the Statute. That is, following agency head review, a union may challenge the agency head's determination by seeking review under the negotiability procedures of section 7117 of the Statute or the unfair labor practice procedures of section 7118.
Here, it is undisputed that the interest arbitration was directed pursuant to the Panel's authority under section 7119(b)(1) of the Statute. Based on our decision in Department of Justice, therefore, and noting that the disapproved provision is pending before the Authority in a negotiability appeal, we find that the Arbitrator's award is not an arbitration award to which exceptions may be filed under section 7122(a) of the Statute. Consequently, the Agency's exceptions must be dismissed.
The Agency's exceptions are dismissed.
(If blank, the decision does not have footnotes.)
*/ Subsequent to the filing of the submissions in this case, the Union filed a petition for review with the Authority, under section 7117 of the Statute, of the Agency head's disapproval of the provision that had been excepted to in this case, as well as of other matters. The petition for review, Case No. 0-NG-1762, is pending before the Authority.