46:0247(23)AR - - Interior, Bureau of Reclamation, Upper CO Region, CO River Storage Project, Power Operation Office and Bureau of Reclamation, Great Plains Region and IBEW Locals 2159 and 1759 - - 1992 FLRAdec AR - - v46 p247



[ v46 p247 ]
46:0247(23)AR
The decision of the Authority follows:


46 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

UPPER COLORADO REGION

COLORADO RIVER STORAGE PROJECT

POWER OPERATION OFFICE

AND

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

GREAT PLAINS REGION

(Agency)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCALS 2159 AND 1759

(Union)

0-AR-2177

DECISION

October 23, 1992

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Michael Rappaport filed by the U.S. Department of the Interior, Bureau of Reclamation, Upper Colorado Region, Colorado River Storage Project, Power Operations Office (CRSP) and the U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region (Great Plains) (collectively referred to as the Agency or the Bureau) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Locals 2159 and 1759 of the International Brotherhood of Electrical Workers (IBEW) (collectively referred to as the Union) filed an opposition to the Agency's exceptions. However, the opposition was untimely filed and will not be considered.(2)

The Arbitrator found that the grievances before him were arbitrable and concluded that the Agency violated the collective bargaining agreements with the Union when it unilaterally removed supervisory foremen positions from the bargaining units involved in this case without following procedures in the parties' agreements for making such changes. The Arbitrator ordered the Agency: (1) to advise the employees in the affected foremen positions that they remain in their respective bargaining units; and (2) to make those employees whole for all lost wages and benefits arising from the Agency's violation of the parties' agreements. The Arbitrator also ordered the Agency to make the Union whole for all revenues lost as a result of the Agency's violation of the agreements.

For the following reasons, we conclude that the Agency has not established that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.

II. Background

The Department of the Interior, Bureau of Reclamation employs certain supervisory and nonsupervisory prevailing rate employees. CRSP and Great Plains are subordinate activities of the Bureau of Reclamation. Pursuant to section 9(b) of the Prevailing Rate Systems Act of 1972 (PRSA), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments, note) and section 704 of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. § 5343 (Amendments), CRSP and Great Plains negotiate the wage rates of prevailing rate employees in bargaining units represented by Local 2159 and Local 1759, respectively.(3) Prior to the Agency's action which resulted in the filing of the grievances at issue in this case, the units were mixed units; that is, they included both supervisory and nonsupervisory prevailing rate employees. From at least 1965 until the Agency's action in this case, the Agency had negotiated over the scope of the bargaining units and had agreed to the inclusion of the supervisory employees in mixed bargaining units, recognizing Local 2159 and Local 1759 as the representatives of the supervisory foremen in the units involved in this case.

In 1977, the Bureau of Reclamation transferred certain prevailing rate employees, including supervisory prevailing rate employees classified as Working Foreman (Foreman II) and Foreman (Foreman III), to the Department of Energy, Western Area Power Administration (WAPA).(4) See Department of Energy, Western Area Power Administration, 3 FLRA 77 (1980) (WAPA 1). The instant case involves only employees in Foreman II and III positions who remained in the Bureau of Reclamation, not employees who were transferred to the Department of Energy.

A. CRSP and Local 2159

Since 1965, employees in the Foreman II position employed by CRSP have been included in a mixed bargaining unit and have had their wages and other benefits negotiated by CRSP and Local 2159. The Arbitrator stated that Article II of the agreement between CRSP and Local 2159:

establishes that the [a]greement is automatically renewed each year, unless it is amended or terminated. Under this provision, either party may annually demand negotiations on any specific provision in the [a]greement by serving writte notice on the other party. The [c]ollective [b]argaining [a]greement provides that written notice must state the nature of the revisions sought and the reasons for the proposed change.

Award at 1.(5)

In February 1990, Local 2159 and CRSP notified each other of the issues that they intended to negotiate during their 1990 negotiations. "[N]either party gave any notice of an intent to renegotiate the makeup of the bargaining unit." Id. When bargaining began in April 1990, CRSP's chief negotiator read a prepared statement which indicated that, in accordance with the decision of the U.S. Court of Appeals for the Tenth Circuit in United States Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (D.C. Cir. 1989) (WAPA v. FLRA), "[CRSP] intended to remove the Foreman II position from the bargaining unit . . . ." Id. The CRSP representative also informed Local 2159 that CRSP would not bargain over wages or conditions of employment for employees in the Foreman II position and that all issues on which the parties had reached tentative agreement were contingent on Local 2159 "agreeing that the Foreman II [position] would be removed from the bargaining unit." Id. Local 2159 "responded by indicating it would not accept any agreement that did not include the Foreman II." Id.

By letter dated April 12, 1990, CRSP notified Local 2159 and the Foreman II employees that effective May 6, 1990, "all employees classified as Foreman II were being removed from the bargaining unit in accordance with" WAPA v. FLRA. Id. at 2. Following this notification, Local 2159 filed a grievance "protesting [CRSP's] stated intent to remove Foreman II from the bargaining unit." Id.

B. Great Plains and Local 1759

Since "at least" 1960, the employees in the Foreman II and III positions employed by Great Plains have been included in a mixed bargaining unit and have had their wages and other benefits negotiated by Great Plains and Local 1759. Id. Article II of the collective bargaining agreement between Great Plains and Local 1759 "provides that the [a]greement remains in full force and effect until modified or revoked and that either party may give notice of the intent to terminate the [a]greement or effect changes by joint conference." Id. Under the agreement, "a written notice must state the nature of the revision sought and the reasons for the proposed change." Id.

In February 1990 both Great Plains and Local 1759 gave notice of the contract changes that each would be seeking in the 1990 negotiations. "Neither party gave notice of any intent to renegotiate the makeup of the bargaining unit or any intent to remove Foreman II and III from the bargaining unit." Id.

At the beginning of negotiations on March 20, 1990, Great Plain's representative read a prepared statement in which Great Plains stated that, in accordance with WAPA v. FLRA, "it intended to remove Foreman II and Foreman III from the bargaining unit . . . ." Id. Great Plains then refused to negotiate over the wages and conditions of employment for employees in the Foreman II and III positions. Local 1759 "took the position that it still represented those employees and would not drop them from the wage proposals, and declared an impasse on March 23, 1990." Id.

Great Plains then gave Local 1759 and all affected employees written notice that, effective April 8, 1990, "employees classified as Foreman II and III would be removed from the bargaining unit." Id. On April 12, 1990, Great Plains sent a notice to all employees classified as Foremen II or III which indicated that their positions had been removed from the bargaining unit.

Thereafter, Local 1759 filed a grievance concerning this matter. "[B]y memorandum of understanding, it was agreed to submit this issue to arbitration in conjunction with Local 2159's grievance procedure." Id. By letter to the Union dated May 29, 1990, Great Plains "stated its position that its actions in removing Foreman II and Foreman III from the mixed bargaining units [were] not grievable under the negotiated grievance procedure and that, [based on WAPA v. FLRA, Great Plains] was not required, and has not agreed, to permit supervisors to negotiate as part of a mixed bargaining unit." Id. at 3.

C. Memorandum of Understanding

The parties did not resolve the grievances of Local 2159 and Local 1759. Thereafter, the IBEW and the Agency entered into a Memorandum of Understanding (MOU). The MOU states, among other things, that it constitutes the "agreement of the undersigned parties that an arbitration hearing will be scheduled to deal with the action by the [A]gency to unilaterally remove the Foremen from mixed bargaining units. The parties will individually present the issues, as they view them, to the [A]rbitrator." Exceptions, Attachment identified as Exhibit M (set forth in Appendix C to this decision).

Based on their agreement to submit the issues to arbitration, the parties agreed to place in abeyance a number of grievances filed by Local 1759, Local 2159, and Foremen at CRSP concerning the supervisory foremen positions, including the grievance filed by Local 1759 regarding the removal of the Foreman II and III positions from the bargaining unit that it represented. The parties agreed that the results of the arbitration would be binding on them for all grievances placed in abeyance, subject to any available appeal rights, and that the arbitration would be held in accordance with the arbitration procedures set forth in the agreement between CRSP and Local 2159. The MOU was signed by the President of Local 2159, the Vice President of Local 1759, and by management representatives for CRSP and Great Plains.

III. Arbitrator's Award

The parties were unable to agree upon a statement of the issue before the Arbitrator and allowed the Arbitrator to frame the issue. The Arbitrator stated the issues as follows:

1. Is the case before the Arbitrator arbitrable?

2. If the matter is arbitrable, did the Bureau violate the [c]ollective [b]argaining [a]greements when it unilaterally removed Foreman II and III from the bargaining units and, if so, what is the proper remedy?

Id. at 3.

A. Arbitrability

1. Parties' Positions Before the Arbitrator

The Union disputed the Agency's contention that the matter was not arbitrable. Specifically, the Union disputed the Agency's argument that "the matter was not arbitrable because the Arbitrator has no authority to determine whether a mixed unit is appropriate . . . ." Id. at 6. The Union claimed that the Arbitrator was not required to make an appropriate unit determination "because the parties have already agreed in their written contract that mixed units are appropriate." Id.

The Agency contended that the grievances were not arbitrable "because the Arbitrator has no authority to make a determination or order any remedy involving the unit status of supervisors in a mixed unit." Id. at 7. The Agency stated that section 7112(a)(1) of the Statute provides that the Authority "has the power to determine the appropriateness of any unit." Id. Further, the Agency contended that WAPA v. FLRA "held that an agency cannot be compelled to bargain with supervisors in a mixed unit . . . ." Id. Accordingly, the Agency argued that "the Arbitrator had no authority to order the Bureau to bargain on the unit status of the Foreman II and Foreman III if the Bureau does not consent to do so." Id. Further, the Agency asserted that "it did not agree to arbitrate Local 1759's case" at the instant hearing. Id. at 6.

The Union noted that the parties' MOU specifically stated that "'. . . an arbitration hearing will be scheduled to deal with the action by the [A]gency to unilaterally remove the Foremen from mixed bargaining units' . . . ." Id. (quoting MOU). The Union argued that "absent an express agreement to exclude Local 1759, the Arbitrator should conclude from the language of the MOU that the parties intended for Local 1759 to participate [in the instant arbitration]. This is particularly true since it would be patently unfair to bind Local 1759 to an arbitration in which it was not allowed to participate." Id.

2. Arbitrator's Determination

The Arbitrator concluded that the matter was arbitrable and properly before him. The Arbitrator rejected the Agency's assertion that he would have to make an appropriate unit determination in order to resolve the issue. The Arbitrator stated that the issue of "whether the foremen have a right under the law to remain in the bargaining unit [was] not a matter before [him]." Id. at 9. The Arbitrator determined that he did not have to reach that issue in order to decide the case before him. According to the Arbitrator, he had to resolve only whether the Agency violated the parties' agreements when it unilaterally removed the supervisory foremen from the bargaining units. The Arbitrator found that although he did not have authority to determine what would constitute the appropriate bargaining unit or "to order that the forem[e]n in question be part of that bargaining unit[,]" he did have "the authority to make a determination as to whether[,] by its refusal to bargain over the inclusion of foremen in the bargaining unit, the Bureau violated the existing [c]ollective [b]argaining [a]greement." Id. at 8.

The Arbitrator further rejected the Agency's assertion that "it did not agree to arbitrate Local 1759's case" or "agreed to arbitrate the issue for both local unions at one hearing . . . ." Id. at 6. The Arbitrator stated that his decision that the matter is "clearly arbitrable" was based "[t]o a large extent . . . on the MOU negotiated between the parties[,] which clearly and unambiguously agreed to submit the matter to arbitration and which contained no provision to suggest that the Bureau intended to reserve the right to challenge its arbitrability." Id. at 13. Noting that the MOU was signed not only by the Agency but also by both Local 2159 and Local 1759, the Arbitrator found that the MOU constituted "a clearly stated intent to arbitrate all the issues in the instant case with respect to both Local 2159 and Local 1759." Id. The Arbitrator concluded that "[t]he fact that the parties agreed that the arbitration would be held in accordance with the procedures set forth in the agreement between IBEW, Local 2159 and CRSP does not suggest in any way that the matter is not to be fully arbitrated and fully resolved with respect to both Unions and all the issues relating to this matter." Id.

B. Merits

1. Parties' Positions Before the Arbitrator

The Union contended that each of the collective bargaining agreements involved in this case contained an automatic renewal clause which provided that the basic labor agreement was automatically renewed from year to year and continued in full force "until there was some sort of modification or revocation." Id. at 4. Further, the Union stated that "in order to modify either agreement, the party seeking to do so was required to provide the other party with at least sixty days['] notice and the parties were required to discuss the proposed modification." Id. Accordingly, the Union asserted, "the parties themselves expressly agreed that the [c]ollective [b]argaining [a]greements could only be modified by utilization of these specific procedures." Id.

The Union also contended that the Agency misconstrued the court's decision in WAPA v. FLRA. The Union argued that "nothing in that decision operates to relieve the Bureau from the obligation that it voluntarily assumed when it entered into the [c]ollective [b]argaining [a]greement[s]" with the Union. Id. at 5. The Union noted that the situation presented in WAPA v. FLRA was distinguishable from the situation present in the case before the Arbitrator, because in this case the scope of the bargaining unit had historically been a subject of negotiation, whereas the parties in WAPA v. FLRA had no preexisting contractual obligation to bargain over the scope of their unit. The Union claimed that "under the WAPA[ v. FLRA] decision, as well as statutory law, the right to negotiate over the scope of the bargaining unit [at issue in this case] is preserved." Id. at 6. The Union concluded that because the parties' contracts in this case can only be modified by negotiations, the Agency's unilateral modification of their respective agreements was a violation of the agreement.

The Agency asserted that its decision to remove the supervisory foremen positions from the units was consistent with law, including the court's decision in WAPA v. FLRA. The Agency argued that WAPA v. FLRA held that "the supervisory employees have no vested right to remain in a mixed bargaining unit and that [s]ection 7135(a)(2) allows the Authority to recognize only exclusive units of supervisors and not mixed units." Id. at 7. Further, the Agency argued that the court's decision held that section 704 of the CSRA did not establish any vested right for supervisors to remain in the bargaining unit. The Agency asserted that the court's decision held "at most" that if the bargaining unit is a permissible subject for negotiation, under section 704 mixed units are authorized "only if the Bureau consents." Id. at 7-8.

The Agency also claimed that the same issues involved in this case had been brought by Local 2159 and Local 1759 before the Authority in unfair labor practice cases.(6) The Agency argued that in those cases, the Authority determined, consistent with WAPA v. FLRA, that inasmuch as "the units of prevailing rate employees represented by the Union are not required to include employees in supervisory craftsmen positions, the Bureau had no duty to bargain on wages or conditions of employment for [those] supervisory employees and, as a result, it did not repudiate" the collective bargaining agreement. Id. at 8. The Agency asserted that in light of WAPA v. FLRA, it "properly exercised its right under the law to refuse to recognize supervisory foremen in mixed units at the time the [c]ollective [b]argaining [a]greements came up for renegotiation." Id.

2. Arbitrator's Determination

The Arbitrator noted that "[i]t is clear from the record that if the [Tenth Circuit's decision in WAPA v. FLRA] had not been issued, there would be no question that the Bureau's actions would have violated the [c]ollective [b]argaining [a]greement." Id. at 9. Further, the Arbitrator noted that it was undisputed that the supervisory foremen in both locals were part of the parties' respective bargaining units and that the agreements covering those units provide for automatic renewal of the respective agreements from year to year. The Arbitrator stated that the agreements remain in effect "unless modified or revoked, and further, . . . either party must give notice of an intent to terminate the [a]greement or effect changes by serving specific written notice prior to the beginning of the negotiations." Id.

The Arbitrator found that "given that the [supervisory] foremen were historically part of the bargaining unit, it would clearly appear that but for the court decision in [WAPA v. FLRA], if the Bureau had determined that it desired to have the foremen removed from the bargaining unit, it would first had to have given proper notice of its intent to negotiate their removal and the removal could only have been effected through negotiations." Id. The Arbitrator ruled that "if the Bureau . . . acted unilaterally and simply announced that the foremen were removed from the bargaining unit, such actions would have been a clear violation of the [c]ollective [b]argaining [a]greement." Id.

The Arbitrator concluded that "[t]here is no dispute that the Bureau did act unilaterally in the instant case, basing its right to do so on [WAPA v. FLRA]." Id. The Arbitrator found, therefore, that the question for resolution was whether WAPA v. FLRA "mandated the Bureau to announce the unilateral removal of the foremen." Id. Recognizing that "provisions of a collective bargaining agreement are suspect if they are contrary to public policy and law[,]" the Arbitrator stated that "if [WAPA v. FLRA] mandated the removal of the foremen from the bargaining unit, then [he] would be compelled to find for the Bureau." Id. at 9-10. However, the Arbitrator stated that if WAPA v. FLRA did "not mandate the removal of the foremen in the circumstances of the instant case, then [he] must find that the [c]ollective [b]argaining [a]greement remains controlling and that the Bureau's actions were in violation" of the agreement. Id. at 10. The Arbitrator stated that the standard of review he would use to make this determination was "whether the court['s] decision [in WAPA v. FLRA] was so clear and so compelling, and so closed to any interpretation to the contrary, that the Bureau's actions were not in violation of the [c]ollective [b]argaining [a]greement, because if the Bureau had continued to negotiate the removal or inclusion of the foremen in the [c]ollective [b]argaining [a]greement, it would have been acting contrary to law." Id.

The Arbitrator found that the decision in WAPA v. FLRA "was not so clear on its face [that] it mandates the removal of the forem[e]n from the bargaining unit and, therefore, compelled the Bureau to ignore the existing provisions" of the parties' agreements. Id. The Arbitrator found that the facts presented in WAPA v. FLRA were distinguishable from those in the instant case. Specifically, the Arbitrator stated that the "primary basis" for distinguishing WAPA v. FLRA from the case before him was the fact that in WAPA v. FLRA "there was no existing [c]ollective [b]argaining [a]greement that had been negotiated between the parties which historically placed foremen in the bargaining unit." Id. The Arbitrator stated that the essence of the court's decision in WAPA v. FLRA "was that the FLRA's unit determination was erroneous because the FLRA had no authority to impose upon the parties a mixed unit that had not been established by mutual agreement. . . . Thus, the decision was apparently based to a significant degree on the fact that WAPA had never agreed to a mixed unit." Id. at 11.

The Arbitrator further stated that by contrast, "in the present case the Bureau has consistently, for many years, agreed to a mixed bargaining unit." Id. The Arbitrator went on to state:

On that basis alone, the Arbitrator is persuaded that an argument could be made in an appropriate forum that the instant case could be distinguished from [WAPA v. FLRA] and, therefore, either the Bureau's actions constituted an unfair labor practice, or that [WAPA v. FLRA] did not compel the removal of the forem[e]n from the bargaining unit. In any event, the Arbitrator is persuaded that without such a determination having been made before the Bureau unilaterally removed the foremen, the Bureau acted at its peril and acted in violation of those provisions of the [c]ollective [b]argaining [a]greement relating to notification of an intent to modify the [a]greement.

Id.

The Arbitrator noted that, in WAPA v. FLRA, the court seemed "to be recognizing the significance of WAPA's lack of consent to the inclusion of the foremen in that case." Id. However, the Arbitrator stated that the case before him differed because "there has, in fact, been a long historical consent by the Bureau to the inclusion of the foremen in the bargaining unit[s]." Id. Further, the Arbitrator noted that in WAPA v. FLRA, the court seemed to recognize "that the foremen do not have any vested right to be part of the bargaining unit, but rather they only have the right to be part of the bargaining unit if negotiated by the parties." Id.

In sum, the Arbitrator found that the language in WAPA v. FLRA:

clearly suggests to the Arbitrator that while there is no vested right for the foremen to remain in the bargaining unit, they do have the right to remain in the bargaining unit by mutual agreement between the Union and the Agency in a situation such as in the instant case where historically it has been bargained by the parties, and where the parties have agreed to permit the foremen to remain part of the unit.

Id. at 12.

The Arbitrator concluded that, rather than compelling the removal of the foremen from the bargaining units at issue in this case, the court's decision in WAPA v. FLRA "[a]t most . . . recognizes that the Bureau has the right to negotiate the removal of the foreman from the bargaining unit by proposing that the part of the [c]ollective [b]argaining [a]greement which permits foremen to be part of the bargaining unit be amended or removed." Id. at 12-13. The Arbitrator further stated:

While the Bureau clearly has the right to make such [a] proposal, and while the Bureau is not compelled to permit foremen to remain in the bargaining unit, the [c]ollective [b]argaining [a]greement spells out the mechanism for making such a change. As a result, when the Bureau ignored the [c]ollective [b]argaining [a]greement and unilaterally removed the foremen from the bargaining unit, the Arbitrator finds that such action was a violation of the [c]ollective [b]argaining [a]greement.

Id. at 13.

Accordingly, the Arbitrator found that the Agency violated the parties' respective collective bargaining agreements when it "unilaterally announced the removal of the foremen from the bargaining unit, and announced it would refuse to negotiate any part of the [a]greement[s] unless the Union[s] agreed with its position[.]" Id. at 10.

As his award, the Arbitrator stated the following:

1. The Arbitrator finds that the Agency violated the [c]ollective [b]argaining [a]greements when it unilaterally removed the foremen in question from the bargaining units.

2. The Arbitrator finds that because of the carryover provisions of the [c]ollective [b]argaining [a]greement, the foremen in question have had their inclusion in the bargaining unit automatically renewed and that they remain in the bargaining unit under the provisions of the [c]ollective [b]argaining [a]greement.

3. The Arbitrator orders that employees classified as Foremen II and Foremen III in their respective bargaining units be immediately advised of their status within the bargaining unit and be made whole for all lost wages and benefits arising from the violation of the [c]ollective [b]argaining [a]greement by the Bureau.

4. The Arbitrator orders the Agency to make the Unions involved whole for all revenues lost as a result of the Bureau's violation of the [c]ollective [b]argaining [a]greement.

5. If agreed to by both parties, the Arbitrator will retain jurisdiction over any dispute arising out of the implementation of this award.

Id. at 13-14.

IV. Exceptions

A. Arbitrability

The Agency contends that the Arbitrator's award is contrary to law because the Arbitrator erred in finding the grievances arbitrable. The Agency asserts that the Arbitrator "made a determination as to the bargaining unit status of the supervisory foremen[,]" which is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute. Exceptions at 8. The Agency claims that by finding that "'the foremen in question have had their inclusion in the bargaining unit automatically renewed and that they remain in the bargaining unit under the provisions of the [c]ollective [b]argaining [a]greement[,]'" the Arbitrator "clearly incorporated" this unit determination into his award. Id. (quoting Award at 13-14).

Relying on Authority precedent, the Agency asserts that the Arbitrator has no authority to determine the supervisory foremen's bargaining unit status "'even if the question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement.'" Id. at 7 (quoting U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, Los Angeles Joint Council, 34 FLRA 1161, 1164 (1990) (IRS, Los Angeles)). The Agency notes that the Authority has held that the determination of an employee's unit status is within the exclusive jurisdiction of the Authority.

Further, the Agency asserts that the MOU did not constitute a clear and unmistakable waiver of the Agency's right to contest the arbitrability of the grievances before the Arbitrator. Citing Authority precedent, the Agency argues that it "is required by law to proceed with the arbitration of the grievances and submit any issue of arbitrability to the Arbitrator, at the risk of committing an unfair labor practice." Id. at 10. The Agency asserts that its signing of the MOU did not mean that it "waived its statutory right to raise the issue of arbitrability before the Arbitrator." Id.

The Agency notes that the Arbitrator found the grievances arbitrable "based on the MOU" and that the Arbitrator indicated that the MOU "'contained no provision to suggest that the Bureau intended to reserve the right to challenge its arbitrability.'" Id. at 9 (quoting Award at 13). The Agency asserts that the Arbitrator's finding is contrary to the Authority's precedent because "when an agreement is completely silent on a subject (such as in this case on the subject of arbitrability), such silence does not constitute a waiver of a party's statutory right." Id. at 10-11. Further, the Agency asserts that the evidence supports a finding that the Agency did not waive its right to raise the issue of arbitrability because it "continuously challenged the arbitrability of the grievances in letters to the Union denying the grievances" and "raised the issue of grievability" before the Arbitrator. Id. at 11. The Agency claims that the MOU "was merely to consolidate many grievances into one grievance as requested by the Union." Id.

B. Merits

Relying on the court's decision in WAPA v. FLRA, the Agency contends that the Arbitrator's award is "inconsistent with section 7112 [of the Statute] prohibiting the certification of supervisors in mixed units." Id. at 12. The Agency argues that in WAPA 7, 38 FLRA at 940, the Authority followed the court's ruling and held that "consistent with section 7112, supervisors are prohibited from being included in appropriate units, unless their inclusion is expressly authorized by section 7135(a)(2), allowing exclusive units of supervisors but not mixed units." Id. The Agency claims that there is "no substantive difference between the basic issue before the Authority in this case and that in WAPA[ v. FLRA] as stated by the court." Id. at 13. The Agency further claims that "if the Authority denies [its] exception, the Authority would be, under the guise of an arbitration award, effectively 'certifying' a mixed unit of supervisory and nonsupervisory employees contrary to sections 7112 and 7135(a)(2)." Id.

The Agency further contends that the Arbitrator "erred in determining [that] the Agency must negotiate the removal of the supervisory foremen from the units under the procedures of the collective bargaining agreements." Id. (emphasis deleted). Citing Authority precedent, the Agency asserts that "[t]he bargaining unit status of an employee is not a condition of employment subject to bargaining." Id. (emphasis deleted). The Agency argues that the Authority has consistently held that "if a matter does not concern a condition of employment, it cannot become a condition of employment through past practice or agreement between the parties." Id. at 14. The Agency further argues that the supervisors do not fall within the definition of "employee" under section 7103(a)(2) of the Statute, and, therefore, are not covered by the definitions of "collective bargaining" and "conditions of employment" in section 7103(a)(12) and (14) of the Statute. The Agency claims that the fact that the Agency has "previously agreed to recognize supervisors in the bargaining unit does not convert such recognition, agreement or past practice into a condition of employment." Id. at 15.

Further, the Agency contends that section 704 of the CSRA "does not cover or require negotiations of the unit status of employees, including supervisors." Id. (emphasis deleted). The Agency notes that in WAPA v. FLRA, the court concluded that "neither section 704 nor section 9(b) explicitly authorizes mixed bargaining units." Id. The Agency states that the court found that section 704 was "designed to preserve the right to negotiate about traditional subjects such as wages, pay practices . . . , and similar issues in accordance with the prevailing practice principle; it does not suggest that Congress intended to give employees a right to mixed bargaining units." Id. at 16. The Agency notes that the court found that section 9(b) "allows supervisors to continue to negotiate as part of a mixed unit only if the agency agrees[.]" Id. (emphasis in original).

The Agency asserts that "[e]ven if the agency did negotiate in the past . . . on supervisors in mixed bargaining units, the agency is not required to continue to negotiate on such matter if it no longer agrees." Id. at 17. Further, the Agency asserts that "'nowhere does [section 704] purport to give any party a vested right to preserve an historic benefit once a contract expires if the other party is unwilling to agree to extend the benefit.'" Id. (quoting WAPA v. FLRA, 880 F.2d at 1171) (emphasis deleted).

Finally, the Agency contends that "[c]ollective bargaining procedures do not apply to the Agency's election, during renegotiations, to not recognize supervisors in mixed units." Id. at 18 (emphasis omitted). The Agency asserts that "the procedures and mechanism for notice of intent to modify the agreement[s at issue in this case] do not apply in this case because the Agency had no duty or intention to negotiate with the Union[s] on the exclusion of supervisory foremen from the mixed bargaining units." Id. at 19. The Agency claims that proper interpretation of the notice procedures "required by the contract" for modification were "intended to outline the issues that the Union and management wanted to 'negotiate.'" Id.

In conclusion, the Agency contends that the Authority should apply WAPA v. FLRA to this case and set aside the award as contrary to law.

V. Analysis and Conclusions

For the reasons discussed below, we conclude that the Agency has not shown that the Arbitrator's award is contrary to law, rule, or regulation, or is otherwise deficient. Accordingly, we will deny the Agency's exceptions.

A. WAPA v. FLRA Provides No Basis for Finding the Award Deficient

The Agency contends that its exclusion of the supervisory foremen positions at issue in this case from Local 2159's and Local 1759's respective bargaining units is warranted under the court's decision in WAPA v. FLRA. For the reasons fully set forth in the majority opinion in U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C., 46 FLRA No. 2, slip op. at 12-18 (Bureau of Reclamation) (Member Talkin, dissenting), we reject the Agency's contention. As the Authority stated in Bureau of Reclamation, to the extent that the decision in WAPA v. FLRA holds that section 704 of the CSRA does not permit negotiations over the continuation of mixed units under any circumstances or that such negotiations may occur only if consented to by an agency, we respectfully disagree. Additionally, for the reasons stated in Bureau of Reclamation and for the reasons set forth below, we reject the Agency's contention that it was entitled in the circumstances of this case to unilaterally remove the Foreman II and III positions from their respective units, without regard to the procedures set forth in the parties' respective bargaining agreements.

Consequently, we find that the Agency has failed to establish that the Arbitrator erred in concluding that the Agency is required to continue to include employees in Foreman II and III positions in the collective bargaining unit, until that status is changed in accordance with the procedures set forth in the parties' agreements. We conclude, therefore, that the Agency has failed to establish that the Arbitrator's award is contrary to law.

B. The Statute Does Not Provide a Basis for Finding the Award Deficient

The Agency asserts that section 7105(a)(2)(A) and section 7112(a)(1) of the Statute provide that the Authority has exclusive jurisdiction over a determination of the bargaining unit status of an employee. The Agency argues that because the Arbitrator "made a determination as to the bargaining unit status of the supervisory foremen[,]" the award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) and Authority precedent interpreting those provisions. Exceptions at 8.

In this case, the composition of the collective bargaining units was historically negotiated and agreed to by the parties and, accordingly, is governed by section 704 of the CSRA. See Award at 12 (the parties historically "agree[d] to mixed bargaining units . . . by a negotiated instrument"). The units are not governed by section 7112 of the Statute. Rather, the collective bargaining units existed prior to the enactment of the Statute and were established by the mutual agreement of the parties. Section 704(a) of the CSRA establishes the right of the parties to continue to negotiate in accordance with section 9(b) of the PSRA over provisions in the collective bargaining agreement which had been negotiated prior to August 19, 1972--including provisions concerning an appropriate collective bargaining unit--notwithstanding the fact that such provisions might otherwise conflict with the Statute. Bureau of Reclamation, 46 FLRA No. 2, slip op. at 17-18. See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998, 1005 (1986) (Bonneville Power Administration) ("The plain meaning of [section 704(a)] is that it exempts provisions of specified collective bargaining agreements from the limitations on the scope of bargaining set forth in the Statute[.]").

Because section 704 preserves the parties' right to negotiate on certain matters that might otherwise be in conflict with the Statute, a provision in a collective bargaining agreement that was negotiated consistent with section 704 is enforceable in arbitration despite any inconsistency with the Statute. U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 902, 916 (1991) (Great Plains).

It is undisputed that the parties in this case negotiated over the scope of the bargaining units governed by section 704 prior to August 19, 1972. It also is undisputed that the bargaining units established pursuant to those negotiations included the supervisory foremen positions at issue in this case. The Arbitrator found that the agreement provisions which establish the makeup of the collective bargaining unit are still in effect by virtue of the automatic renewal provisions of the parties' agreements. Based on those provisions and the undisputed facts noted above, the Arbitrator determined that the Agency violated the parties' respective agreements by refusing to recognize the unit status of the supervisory foremen as set forth in the agreements and by unilaterally removing the foremen from the bargaining unit.

By recognizing the parties' agreements concerning the makeup of the collective bargaining units and the Agency's obligation to comply with those agreements, the Arbitrator merely enforced the provisions in the parties' agreements concerning the composition of the collective bargaining unit. The Agency has not demonstrated that the provisions enforced by the Arbitrator concerning the makeup of the bargaining unit were not negotiated consistent with section 704. Consequently, we conclude that the provisions are enforceable notwithstanding any inconsistent provision of the Statute. Bureau of Reclamation, 46 FLRA No. 2, slip op. at 17-18.

Moreover, the Agency's reliance on IRS, Los Angeles District is misplaced. The Agency cites that case for the holding that, under the Statute, arbitrators may not resolve factual disputes between agencies and unions as to whether certain employees are included in the bargaining unit because, under the Statute, those disputes must be resolved by filing a clarification of unit petition with the Authority under the Authority's Rules and Regulations. See also U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988). However, IRS, Los Angeles District interprets and applies sections 7105(a)(2)(A) and 7112(a)(1) of the Statute, which provide that a determination as to the appropriateness of units for labor organization representation under section 7112 of the Statute is a function for the Authority under section 7105(a)(2)(A). To the extent that the provisions in the parties' collective bargaining agreement are inconsistent with those sections of the Statute and Authority cases interpreting those provisions of the Statute, the agreements are nonetheless enforceable under section 704 of the CSRA. See Bureau of Reclamation, 46 FLRA No. 2, slip op. at 18; Great Plains, 42 FLRA at 917; Bonneville Power Administration, 22 FLRA at 1005.

We find that the Arbitrator acted within his authority when he interpreted the provision of the parties' agreement concerning the makeup of the collective bargaining unit because the parties' collective bargaining agreements are governed by section 704 of the CSRA. Inasmuch as the Arbitrator's award concerns the interpretation of collective bargaining agreements governed by section 704, any alleged inconsistency with sections 7105(a)(2)(A) and 7112(a)(1) of the Statute does not render the award deficient. Consequently, we conclude that the Agency has failed to demonstrate that the Arbitrator's determination that the grievances are arbitrable is contrary to law.

C. The Arbitrator's Interpretation of the MOU Is Not Deficient

The Agency contends that the Arbitrator erroneously found that the MOU constituted a clear and unmistakable waiver of its right to contest the arbitrability of the grievances before the Arbitrator. The Agency asserts that the Arbitrator "concluded that the Agency waived its right to challenge the arbitrability of the grievances simply because . . . the parties agreed to submit the grievances to arbitration and the MOU contained no provision reserving the Agency's right to challenge the arbitrability of the grievances." Exceptions at 9. The Agency claims that the Arbitrator's ruling that the grievances are arbitrable is contrary to "the Authority's well-established case precedent." Id.

We find that the Agency has misconstrued the Arbitrator's holding. The record shows that the Agency raised two issues concerning the arbitrability of the grievances before the Arbitrator. The first issue, addressed above, concerned whether the Arbitrator would be required to make an appropriate unit determination to resolve the matter, and, therefore, had no authority to consider the grievances. The second issue concerned whether the Agency "agree[d] to arbitrate Local 1759's case" in the instant proceeding. Award at 6. See Transcript at 8, 27.

To resolve the second issue, the Arbitrator was required to interpret the MOU between the Union and the Agency. The Union argued before the Arbitrator that "the parties agreed [in the MOU] to arbitrate the issue for both local unions at one hearing under the procedures set forth in the agreement with Local 2159." Award at 6. The Arbitrator found, based primarily on the parties' MOU, that Local 1759's grievance was arbitrable and properly before him. The Arbitrator did not find that the MOU constituted a waiver of the Agency's right to challenge the arbitrability of the grievances at arbitration. The Arbitrator merely interpreted the MOU and found that it contained "a clearly stated intent to arbitrate all the issues in the instant case with respect to both Local 2159 and Local 1759." Id. at 13.

We find that the Agency's exceptions do not establish that the Arbitrator's interpretation of the MOU is contrary to law or is otherwise deficient. Rather, the Agency's arguments constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and MOU. Such disagreement does not provide a basis for setting aside the Arbitrator's arbitrability determination. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562, 566 (1987) (disagreement with the arbitrator's interpretation and application of the parties' agreement does not provide a basis for setting aside the arbitrator's arbitrability determination).

Accordingly, we will deny the Agency's exceptions.

VI. Decision

The Agency's exceptions are denied.

Opinion of Member Talkin, Concurring

I concur in the majority decision denying the Agency's exceptions. I agree with the majority decision that the Agency's exceptions do not establish that the Arbitrator's interpretation of the MOU is deficient. I also agree that WAPA v. FLRA, 880 F.2d 1163, and the Statute provide no basis for finding the award deficient, but for reasons different from the majority.

As I indicated in my dissenting opinion in Bureau of Reclamation, 46 FLRA No. 2, slip op. at 37-38, in my view, the court in WAPA v. FLRA has effectively analogized the application of section 704 in relation to mixed units to a permissive subject of bargaining. As the Authority has repeatedly recognized, following the expiration of a collective bargaining agreement either party to that agreement may elect not to be bound by any contract provision relating to a permissive subject of bargaining. For example, U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 37 FLRA 1423, 1431 (1990). Accordingly, in my view, under section 704, agencies that are parties to existing collective bargaining agreements covering mixed units may refuse to negotiate over mixed units upon expiration of the existing collective bargaining agreement. However, if the parties' collective bargaining agreement contains provisions relating to the duration and expiration of the agreement and procedures that govern the renewal of the existing agreement or renegotiation of a successor agreement, it is clear that those provisions would control. See U.S. Department of the Army, Headquarters III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 40 FLRA 636 (1991) (Ft. Hood) (the arbitrator precluded the agency from implementing Government-wide regulations that had been prescribed during the term of the parties' collective bargaining agreement; the Authority denied exceptions to the award because the arbitrator had found that under the provisions and procedures of the agreement, the agreement had not expired).

In this case, the Arbitrator specifically determined that the Agency had acted in violation of the provision of the parties' collective bargaining agreement relating to notification of an intent to modify the agreement. As in Ft. Hood, the collective bargaining agreement remained in effect unless a party followed the specified procedures for terminating the agreement or effecting changes to the agreement. As in Ft. Hood, the Agency was properly precluded from effecting changes without complying with the procedures of the agreement. Thus, the Arbitrator appropriately maintained the terms and conditions of the parties' existing collective bargaining agreement. Certainly, it is well established that provisions of collective bargaining agreements relating to permissive matters are enforceable by arbitrators during the effective term of the collective bargaining agreement. For example, U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816, 824-25 (1990); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577-78 (1990).

Accordingly, I find that WAPA v. FLRA and the Statute provide no basis for finding the award deficient. In short, the Agency fails to establish that the Arbitrator erred in concluding that the Agency is required to continue to include employees in Foreman II and III positions in the unit until that status is changed in accordance with the procedures set forth in the parties' collective bargaining agreement.

Because the Arbitrator found that the Agency had acted in violation of the provision of the parties' collective bargaining agreement relating to notification of an intent to modify the agreement, my determination that WAPA v. FLRA provides no basis for finding the award deficient is consistent with my dissenting opinion in Bureau of Reclamation. In that case, in contrast to the Arbitrator's finding in this case, the Respondents maintained that they had exercised their rights not to agree to mixed units in a manner consistent with applicable collective bargaining agreement provisions and procedures relating to modifications on renewal and renegotiation. In Bureau of Reclamation, although the parties stipulated that the Respondents ceased applying the terms and conditions of the applicable collective bargaining agreements to Foreman II and Foreman III, the stipulation did not address the Respondents' actions in terms of the duration and renewal provisions of the applicable collective bargaining agreements. In addition, the charging parties and the General Counsel did not address the propriety of the Respondents' actions under the applicable provisions regarding duration and renewal. In light of the majority's view of section 704, the majority similarly did not address this issue. Thus, the Respondents' claim that they had acted in accordance with the duration provision of the applicable collective bargaining agreements was neither addressed nor refuted. Given my view of section 704, I concluded that, based upon the record before us, the alleged refusal to bargain could not be found.

In contrast, in this case, the Arbitrator rejected the Agency's actions as improper under the applicable terms of the agreement. Accordingly, I concur in the majority's decision.

APPENDIX A

Section 9(b) of the Prevailing Rate Systems Act of 1972, Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments, note), provides that:

The amendments made by this Act shall not be construed to--

(1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act [Aug. 19, 1972] pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees;

(2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act [Aug. 19, 1972] for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or

(3) nullify, change, or otherwise affect in any way after such date of enactment [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date [Aug. 19, 1972].

Section 704 of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. § 5343 (Amendments), provides that:

(a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act [Oct. 13, 1978] in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5,

United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph.

(b) The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of--

(A) chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph;

(B) subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or

(C) any rule, regulation, decision, or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code.

APPENDIX B

Article II of the collective bargaining agreements between the Agency and the Union provide in relevant part:

[Provisions of Agreement between Agency and Local 1759]

ARTICLE II

EFFECTIVE DATE AND RENEWAL

POSITION OF THE PARTIES

SECTION 2.1--This Basic Agreement . . . shall become effective upon the approval of the Office of the Secretary of the Interior and remain in full force and effect until modified or revoked, provided that either party may give the other party written notice of its desire to terminate or to effect changes by joint conference, such written notice shall specify the reasons for the termination or the changes desired, and be given not less than 60 days before the anniversary date which is established as 1 calendar year from date of approval. Notices shall be acknowledged within 10 days and a date set for holding the conference which date shall be within 30 days of the date of notice. Amendments must be reduced to writing and be executed in the same manner as this Agreement.

[Provisions of Agreement between Agency and Local 2159]

ARTICLE II

Effective Date & Renewal

Section 2.1 This basic agreement shall become effective upon approval by the President of the International Brotherhood of Electrical Workers and the Office of the Secretary of the Interior. This basic agreement shall remain in effect for 1 year and shall be automatically renewed from year to year until amended or terminated.

. . . .

Section 2.4 Once each calendar year, but not more often except by mutual agreement of both parties, or in the event that any law or regulation or policy appropriate authorities is hereinafter enacted or issued that is inconsistent with this Basic Agreement or any supplementary agreement, the Bureau or the Union may notify the other in writing that a

conference is desired to consider the need for revising any or all provisions. Except for conferences pertaining only to rates of pay, such notices shall state the nature of revisions desired and reasons therefor. Notices shall be acknowledged within 10 days and a date set for holding the conference, which date shall be as soon as practicable but not to exceed 60 days from the date of notice.

APPENDIX C

MEMORANDUM OF UNDERSTANDING

BETWEEN

BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR

(AGENCY)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW)

(UNION)

This Memorandum of Understanding (MOU) is agreement of the undersigned parties that an arbitration hearing will be scheduled to deal with the action by the agency to unilaterally remove the Foremen from mixed bargaining units. The parties will individually present the issues, as they view them, to the arbitrator.

By agreeing to the above, the parties agree to place in abeyance the following grievances:

a. The eleven (11) grievances filed by Foremen at CRSP [Colorado River Storage Project];

b. The grievance filed by Local #1759 regarding removal of Foremen from that bargaining unit.

c. Any grievances filed by Local #2159 or #1759, or those Foremen who have been removed from these bargaining units concerning the issue of discontinuance of dues withholding.

The signatures of the representatives of each of the unions indicate that each local union waives its individual right to process its separate grievances on the above subject matter and fully concurs with the action provided herein. Any interest arbitration proceedings will not include any issues concerning Foremen.

The results of the arbitration will be binding on the parties for all grievances referenced in a, b, and c above, subject to any available rights of review and appeal. It is understood that no action will be taken to implement the arbitrator's decision if either party is proceeding with action to request review or otherwise appeal a decision at any level of the administrative/judicial process.

All grievances filed in Locals #2159 and #1759 over the issue of upcoding bargaining unit employees to Foremen II or III will be held in abeyance. The union reserves the right to process this issue to arbitration at a later date.

This arbitration will be held in accordance with the arbitration procedures set forth in the agreement between IBEW Local #2159 and CRSP.

Approved:

___________________
Mgmt. Rep. UC Region
_____
Date
___________________
President, Local #2159
____
Date

___________________
Mgmt. Rep. GP Region
_____
Date
_____________________
[Vice Pres.], Local #1759

____
Date 




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Talkin's separate concurring opinion is set forth after the majority opinion.

2. On November 18, 1991, the Authority issued an order directing the Union to show cause why its opposition dated November 4, 1991, should be considered. The Order stated that any opposition to the Agency's exceptions had to be filed by November 4, 1991, to be considered timely. The Order noted that the Union's opposition was filed by mail in an envelope that did not have a postmark and was received by the Authority on November 12, 1991. Accordingly, under section 2429.21(b) of the Authority's Rules and Regulations, the opposition was presumed to have been mailed 5 days prior to receipt by the Authority; that is, on November 7, 1991. The Order stated, as relevant here, that to comply with the Order the Union must provide a postmarked certified return receipt to show that its opposition was mailed on or before November 4, 1991.

The Union asserts that its opposition was given to a postal official on November 4, 1991, and notes that the Agency received a copy of its opposition on or before November 6, 1991. The Union asserts that the failure of the Authority to receive the opposition within 5 days of the mailing date was due to the U.S. Postal Service and that the Authority should find that the Union's opposition was mailed on November 4. In the alternative, the Union requests a waiver of the expired time limit under section 2429.23(b) of the Authority's Rules and Regulations.

The Union has not provided proof, as required by the Authority's Order, that its opposition was mailed by November 4, 1991. We note that it was the Union's responsibility to ensure that, if mailed, its opposition was postmarked on November 4, 1991. The Union has failed to comply with this requirement. We further find that the Union has not established extraordinary circumstances under section 2429.23(b) of our Rules and Regulations that warrant a waiver of the expired time limit for filing its opposition. See, for example, U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Council 214 and Local 916, 43 FLRA 765 n.1 (1991). Therefore, we will deny the Union's request for a waiver.

3. The provisions of section 9(b) of the PRSA and section 704 of the CSRA are found in Appendix A of this decision.

4. A dispute subsequently arose between WAPA and IBEW over the unit status of those employees in Foreman II and III positions transferred in 1977 from the Department of the Interior to the Department of Energy. The history of that dispute is set forth in WAPA 1; Department of Energy, Western Area Power Administration, Golden, Colorado, Case No. 7-CU-24 (Feb. 17, 1981) (WAPA 2); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986) (WAPA 3), rev'd, 880 F.2d 1163 (10th Cir. 1989); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA 268 (1987) (WAPA 4), rev'd, No. 87-2062 (10th Cir. Nov. 15, 1989) (order); U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 361 (1990) (WAPA 5); U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 368 (1990) (WAPA 6); and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 38 FLRA 935 (1990) (WAPA 7). Noting that the parties and the issue before it were the same that were before the court in WAPA v. FLRA, the Authority concluded in WAPA 5 and WAPA 6 that the transferred employees in Foreman II and III positions reclassified by WAPA as Supervisory Craftsmen were not included in the unit of prevailing rate employees represented by the unions in those cases.