40:1048(94)MC - - NTEU and FDIC, Chicago, IL - - 1991 FLRAdec MC - - v40 p1048



[ v40 p1048 ]
40:1048(94)MC
The decision of the Authority follows:


40 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

FEDERAL DEPOSIT INSURANCE CORPORATION

CHICAGO, ILLINOIS

(Agency)

0-MC-13-002

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

FEDERAL DEPOSIT INSURANCE CORPORATION

(Agency)

0-MC-14-002

DECISION AND ORDER VACATING STAYS

May 29, 1991

Before Chairman McKee and Members Talkin and Armendariz.

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. Because the motions involved the same parties and presented the same issues for the Authority's consideration, they were consolidated for decision. In the unique circumstances of the consolidated cases, the Authority granted the motions for stays of the Panel's orders. National Treasury Employees Union and Federal Deposit Insurance Corporation, Chicago, Illinois, 32 FLRA 1131 (1988) (NTEU and FDIC, Chicago).

For the following reasons, the stays of the Panel's orders are vacated.

II. Background

The underlying dispute between the parties related to the Union's bargaining proposals regarding wages and money-related fringe benefits for bargaining unit employees. The Panel's orders directed the parties to "submit the issues in dispute to an [interest] arbitrator [of] their choice for a binding decision[.]" Federal Deposit Insurance Corporation, Chicago, IL and NTEU, Case No. 88 FSIP 89 (May 24, 1988); Federal Deposit Insurance Corporation, Washington, DC and NTEU, Case No. 88 FSIP 92 (May 24, 1988).

The Agency requested the Authority to stay the Panel's orders because the Union's proposals that were the subject of the Panel's orders were similar to the proposals that were at issue in cases then awaiting decision by the U.S. Court of Appeals for the District of Columbia Circuit. For the reasons set forth in NTEU and FDIC, Chicago, the Authority granted the Agency's motions for stays of the Panel's orders in Case Nos. 88 FSIP 89 and 88 FSIP 92 until such time as the court ruled in the pending cases.

On February 25, 1991, the court issued orders in those cases. In FLRA v. Federal Deposit Insurance Corporation, Nos. 87-1716 and 88-1005 (D.C. Cir. Feb. 25, 1991) (per curiam) (FLRA v. FDIC 1), the court vacated the Authority's decision in National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 625 (1987) (Chairman Calhoun dissenting), reconsideration denied, 29 FLRA 1465 (1987) (Chairman Calhoun dissenting) (NTEU 1) and remanded the case to the Authority with instructions to dismiss the case as moot. On remand, the Authority vacated its decision in NTEU 1 as moot. National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 40 FLRA No. 81 (1991). In dismissing the case, the Authority noted that the proposal required employee salary increases to be based upon the recommendation of the Federal Employees Pay Council, an entity abolished by the Federal Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, sec. 529 (1990).

In FLRA v. Federal Deposit Insurance Corporation, Nos. 87-1717 and 88-1006 (D.C. Cir. Feb. 25, 1991) (per curiam) (FLRA v. FDIC 2), the court granted the Authority's motion for summary enforcement of the Authority's decision in National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 738 (1987) (Chairman Calhoun dissenting), reconsideration denied, 29 FLRA 1465 (1987) (Chairman Calhoun dissenting) (the Authority found a proposal on money-related fringe benefits for bargaining unit employees, such as dental care, to be negotiable). The court granted the Authority's motion based on the Supreme Court's decision in Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990). In that decision, the Supreme Court, affirming the Authority's underlying order, held that money-related fringe benefits were conditions of employment over which management was required to bargain.

III. Positions of the Parties

A. The Agency

Following the issuance of the court's decisions in FLRA v. FDIC 1 and FLRA v. FDIC 2, the Agency filed a motion for the Authority to direct the Panel to withdraw its orders in Case Nos. 88 FSIP 89 and 88 FSIP 92 directing the parties to binding arbitration. The Agency contends that the Authority should direct the Panel to withdraw its orders regarding the Union's salary proposal because the court found that the proposal was moot and directed the Authority to vacate its underlying order of negotiability.

As to the proposal over money-related fringe benefits at issue in 88 FSIP 89, the Agency notes that both the Authority and the court have now found the proposal to be negotiable. The Agency argues that because the parties have never negotiated over the proposal, the Agency should be provided an opportunity to "engage in collective bargaining with the [Union] over this proposal prior to assertion of Panel jurisdiction." Agency's Motion at 4. The Agency asserts that Panel jurisdiction is only appropriate once the parties have failed to reach an agreement and an impasse is declared by the Federal Mediation and Conciliation Service. The Agency maintains that because no bargaining has occurred over this proposal, the matter is not ripe for Panel jurisdiction.

B. The Union

The Union submitted a response to the Agency's motion. The Union states that the Authority's order staying the Panel's orders should be vacated because the cases that were then pending before the court are no longer pending.

The Union contends that once the stays of the Panel's orders are vacated, the Authority is no longer involved in the matter. Absent the unusual circumstances described in the Authority's order staying the Panel's orders, the Union argues that the Authority does not have the power to review Panel orders. The Union states that once the stays of the Panel's orders are vacated, the Agency can ask the Panel to reconsider its orders and can submit its arguments directly to the Panel.

IV. Analysis and Conclusion

In the Authority's decision to grant the motions to stay the Panel's orders in Case Nos. 88 FSIP 89 and 88 FSIP 92, the Authority "stay[ed] the Panel's orders until such time as the U.S. Court of Appeals for the District of Columbia Circuit rule[d] in the pending cases referenced above." NTEU and FDIC Chicago, 32 FLRA at 1140. The Authority stated that "the Panel's orders directing the parties to interest arbitration on the same matters that are before the court should not be effectuated at this time because to do so could frustrate the statutory procedures, including the role of the judicial review process, for the resolution of negotiability disputes." Id. at 1139. The court has now ruled in