43:0974(79)CA - - Army, Defense Language Institute, Presidio of Monterey, CA and NFFE, Local 1263 - - 1992 FLRAdec CA - - v43 p974
[ v43 p974 ]
The decision of the Authority follows:
43 FLRA No. 79
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
DEFENSE LANGUAGE INSTITUTE
PRESIDIO OF MONTEREY, CALIFORNIA
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1263, INDEPENDENT
DECISION AND ORDER
January 10, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel filed a brief with the Authority. The Respondent filed exceptions to the Chief Administrative Law Judge's denial of the Respondent's motion to dismiss, and a request to consolidate this case with a companion arbitration case. The Union did not file a brief.
The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to maintain the status quo that existed prior to its decision to contract out work performed by unit employees pending arbitration of a grievance contending that the decision was not made in accordance with applicable laws and regulations.
For the following reasons, we find that the Respondent did not commit the unfair labor practices alleged.
The Respondent made a decision to phase out the instruction of ten specific languages taught at its facility located at the Presidio of Monterey and determined that any future instruction of those languages would be contracted out. At a meeting held between management and Union representatives on January 27, 1989, the Respondent informed the Union of its decision to eliminate the in-house training in the ten languages. This notice was followed by a written notice dated February 3, 1989.
On March 23, 1989, the Union filed a grievance under the parties' negotiated grievance procedure asserting that the Respondent had not followed the procedures of Office of Management and Budget (OMB) Circular A-76 in contracting out the language instruction. By letter dated April 4, 1989, the Union requested negotiations on the implementation of management's decision to contract out the teaching of the languages.
On April 14, 1989, the Respondent denied the grievance, and on April 18, 1989, the Union invoked arbitration. On July 6, 1989, the Respondent and the Union negotiated an agreement pertaining to the impact and implementation of the reduction-in-force (RIF) caused by the Respondent's decision to contract out the teaching of the languages.
By letter dated July 17, 1989, the Union requested that the RIF action be held in abeyance until the arbitrator decided the issue regarding the contracting out of the language instruction. The Union did not receive a response to its request. On August 2, 1989, the Union filed the unfair labor practice charge in this proceeding, which alleged that the Respondent violated the Statute by unilaterally implementing plans to contract out the teaching of the languages pending the resolution of arbitration regarding the propriety of the Respondent's action.
Between February 24 and December 14, 1989, a RIF was implemented that affected 31 unit employees.
On April 7, 1990, the Arbitrator issued his decision on the Union's grievance, finding that the Respondent had failed to follow the procedures set forth in OMB Circular A-76. On May 9, 1990, the Respondent filed exceptions to the award with the Authority.(1)
III. Positions of the Parties
A. Respondent's Exceptions to the Chief Judge's Denial of Its Motion to Dismiss the Complaint and Motion to Consolidate Proceedings
The Respondent takes exception to the May 22, 1990, order of the Chief Judge denying the Respondent's motion to dismiss the complaint in this case. In its motion the Respondent had argued that in Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir. 1985) (DLI), the United States Court of Appeals for the Ninth Circuit determined that a grievance challenging actions taken pursuant to OMB Circular A-76 is not cognizable under a negotiated grievance procedure. The Respondent contended that because under the law of the Circuit where it is located it was not required to process the grievance, it was not required to maintain the status quo pending arbitration. Further, the Respondent argued that the U.S. Supreme Court's recent decision in IRS v. FLRA, 110 S. Ct. 1623 (1990), precludes a grievance alleging noncompliance with OMB Circular A-76. Finally, the Respondent argues that it has a right to continue its essential operations pending the processing of a grievance unless the Authority obtains a temporary stay pursuant to section 7123 of the Statute, and, as the Authority has not done so, it had no duty to maintain the status quo.
In denying the Respondent's motion to dismiss, the Chief Judge noted that the Authority has not accepted the decision of the Ninth Circuit as governing. Further, the Chief Judge found that the U.S. Supreme Court in IRS v. FLRA "left open the question whether OMB Circular A-76 is an 'applicable law' entitling labor organizations to challenge violations thereof." Stipulation Exhibit 1(m). The Chief Judge noted that the United States Court of Appeals for the District of Columbia remanded that issue to the Authority.
In its exceptions to the Chief Judge's denial of its motion to dismiss, the Respondent reiterates the arguments it made before Chief Judge. In addition, the Respondent presents arguments based on the sufficiency of the charge and the merits of its decision to contract out under the Statute, the Circular and the parties' agreement.
The Respondent also requests the consolidation of this case with the exceptions taken by the Respondent in the companion arbitration case.(2)
B. General Counsel's Position
The General Counsel contends that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to maintain the status quo regarding language instruction pending completion of the parties' negotiated arbitration process. The General Counsel notes that the Authority has held that, absent exigent circumstances, there is a duty under the Statute to maintain the status quo when a matter affecting working conditions is being bargained or when matters are pending resolution before the Federal Services Impasses Panel (FSIP). The General Counsel cites the Authority decisions in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985), and U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986), as support for this proposition. Similarly, the General Counsel argues that arbitration is an integral part of the collective bargaining process, and thus, the requirement to maintain the status quo pending the completion of arbitration also effectuates the purposes and policies of the Statute.
The General Counsel further contends that, contrary to the Respondent's position, the Union's grievance raised an issue cognizable under the parties' agreement and relevant case law. The General Counsel argues that whether the grievance has merit is immaterial to the Respondent's failure to maintain the status quo. Instead, the General Counsel asserts that it is the arbitration process that must be protected and that the Respondent has violated the Statute by its failure to recognize the value of the arbitration process and by its refusal to allow the grievance-arbitration process to resolve the issue.
The General Counsel also contends that the negotiations between the parties regarding the impact and implementation of the RIF in no way negate the Respondent's bad faith conduct. The General Counsel maintains that the parties' agreement regarding the impact and implementation of the RIF is not relevant to the issue of whether the Respondent violated the Statute by refusing to maintain the status quo during the pendency of the arbitration process.
IV. Analysis and Conclusions
A. Preliminary Matters
The Respondent contends that the Chief Judge was incorrect in denying its motion to dismiss the complaint. We conclude that the Chief Judge correctly denied the Respondent's motion; therefore, we affirm that ruling.
We agree with the Chief Judge that DLI does not govern this case. As the Chief Judge stated, the U.S. Supreme Court in IRS v. FLRA "left open the question whether OMB Circular A-76 is an 'applicable law' entitling labor organizations to challenge violations thereof." Stipulation Exhibit 1(m). The United States Court of Appeals for the District of Columbia remanded that issue to the Authority. In National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991) petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991) (Treasury), we examined the scope of the term "applicable laws" in section 7106(a)(2) of the Statute and whether the term encompasses Circular A-76. For the reasons fully set forth in Treasury, we concluded that OMB Circular A-76 constitutes an applicable law within the meaning of section 7106(a)(2) of the Statute. 42 FLRA at 391. We also concluded that the Circular's provision for an agency-established administrative appeal procedure does not preclude grievances over compliance with Circular A-76. In so finding, we concluded that in DLI the court did not set forth a construction of the term "applicable laws" and, therefore, that DLI was not dispositive of this issue. Id. at 402. Finally, we held that OMB cannot preclude grievances enforcing the Circular by issuing regulations that limit the scope of the statutory grievance procedure. Id. at 404. See also NFFE, Local 1263.
We also will not consider the Respondent's arguments that raise issues concerning the validity of the grievance and of the Arbitrator's award, which are not properly before the Authority in this unfair labor practice proceeding. Finally, insofar as the Respondent argues that it did not violate the Statute because the parties had negotiated procedures for implementing the RIF and the parties' agreement does not provide for a stay of RIF actions, those arguments go to the merits of the complaint and do not address the issues raised in its motion to dismiss, which were jurisdictional and procedural in nature. Therefore, we will not consider them in the context of our review of the Chief Judge's denial of the Respondent's motion.
Accordingly, we conclude that the Respondent fails to establish that the Chief Judge's order denying its motion to dismiss was in error.
B. The Respondent Did Not Violate the Statute
The Authority has consistently found that the duty to bargain under the Statute requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment, absent a clear and unmistakable waiver of that bargaining right. Further, to the extent consistent with its necessary functioning, an agency must maintain the status quo while a negotiation dispute is pending before the Federal Services Impasses Panel. See, for example, Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120, 131 (1991), aff'd sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. Dec. 26, 1991); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985).(3) However, the Authority has not addressed the issue presented here of whether management is obligated under the Statute to stay a management action during the pendency of an arbitration proceeding in which the action is being contested. We now conclude that there is no such obligation under the Statute.
Section 7106(a)(2) of the Statute provides that "nothing in this chapter shall affect the authority of any management official" to effect certain management rights, including the implementation of a decision to contract out, except that such management actions must be in accordance with applicable laws and are subject to the provisions of section 7106(b). Section 7106(b) provides, in relevant part, that an agency and a labor organization may negotiate procedures and appropriate arrangements concerning the management rights set forth in section 7106(a). As noted above, an agency is obligated to stay any management actions pending negotiations on that matter to the extent consistent with its necessary functioning.
We find nothing in the Statute or any applicable law that requires a stay of actions taken pursuant to section 7106(a)(2)(B), pending resolution of the propriety of thos