47:0363(28)AR - - VA, Regional Office, Cleveland, OH and AFGE, Local 2823 - - 1993 FLRAdec AR - - v47 p363
[ v47 p363 ]
The decision of the Authority follows:
47 FLRA No. 28
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 9, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Phillip-Harold Marshall 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 did not file an opposition to the Agency's exceptions.
In an award resolving a grievance over the negotiation of certain proposals for inclusion in a supplemental local agreement, the Arbitrator found, as relevant to this case, that the Agency was required to bargain with the Union over Union Proposal 23, concerning the core hours for employees on modified flexible work schedules, under the parties' national collective bargaining agreement (master agreement). The Agency has filed exceptions to that part of the Arbitrator's award. For the following reasons, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The parties disagreed over whether, under the parties' master agreement, they were required to bargain over certain proposals for inclusion in the supplemental local agreement. The matter was submitted to arbitration on the following issues:
Are all and/or any of the Union Supplemental Local Agreement proposals negotiable as not being barred by Article 5, Section 1 of the parties' August 13, 1982 Master Agreement?
Is the Agency's Proposal IX - Duration of Agreement, negotiable?
Award at 1.(1)
The Arbitrator noted that the parties began negotiations on a supplemental local agreement in October 1991, and that "[o]n October 15, 1991, they had executed an agreement concerning the nature and scope [of the] procedures to be followed during such negotiation sessions." Id. As relevant to the exceptions in this case, the parties disagreed over the inclusion in the supplemental local agreement of Union Proposal 23, which provides:
All employees will be given the opportunity of participating in a modified flexible work schedule in which they may select a core time between the hours of 7:30 a.m. and 4:30 p.m. and have a thirty (30) minute period of flexibility in which to arrive for work.
Id. at 3. The Arbitrator noted that the parties disagreed over whether Proposal 23 conflicted with the master agreement and therefore was precluded from negotiation under Article 5, Section 1 of the master agreement.(2) The Arbitrator also noted that, under Article 5 of the master agreement, provisions in local agreements may not conflict with the master agreement and that disputes over the negotiability of proposals in supplemental local agreements will be submitted to arbitration for resolution.
The Union asserted before the Arbitrator that the parties had agreed on October 15, 1991, that challenges to the negotiability of proposals for inclusion in the supplemental local agreement must be made by December 16, 1991, and that the Agency was bound by that agreement. With respect to Proposal 23, the Union maintained that the proposal did not conflict with the master agreement. Further, the Union contended that the inclusion of that proposal in the supplemental local agreement was agreed to by the Agency and was no longer an issue at the conclusion of bargaining over the supplemental local agreement on December 16, 1991. The Union contended that the Agency should not be allowed to later change its mind and contest the inclusion of Proposal 23 in the local agreement on April 6, 1992.
The Agency contended to the Arbitrator that Proposal 23 was an improper subject for local bargaining. The Agency maintained that it had "never relinquished its right to assert non-negotiability of this issue either by way of an October 15, 1991 local agreement with the Union or otherwise." Id. at 13. The Agency maintained that flexitime provisions, including the establishment of core times, had been negotiated in the master agreement and that there was no basis on which to negotiate on those matters locally. The Agency also argued that the establishment of core times was controlled by the Agency's personnel manual, MP-5, Chapter 610, which had been negotiated at the national level.
The Arbitrator found that the October 15, 1991, local ground rules agreement between the VA Regional Office (VARO), Cleveland and the Union established December 16, 1991, as the cutoff date for raising negotiability challenges to Union proposals for inclusion in the supplemental local agreement. Consequently, the Arbitrator ruled that the Agency's assertion on April 6, 1992, just prior to the arbitration hearing on April 9, 1992, that Union Proposal 23 was not negotiable under the master agreement, was untimely and "effectively removed Proposal 23 from consideration" at that hearing. Id. at 19. The Arbitrator found that the October 15, 1991, ground rules agreement "provides for an exclusion of any added proposed negotiability challenges beyond the 'end' of the subject [supplemental local agreement] negotiating sessions which ultimately occurred on December 16, 1991." Id. The Arbitrator found that there was "no real dispute as to the fact that the non-negotiability of Proposal 23 was effectively raised by the Agency on or about April 6, 1992[,] some four months after the negotiability challenge issue cut-off date . . . ." Id. He concluded, therefore, that Proposal 23 was negotiable.
III. Agency's Exceptions
The Agency asserts that the Arbitrator's award with respect to the negotiability of Proposal 23 is contrary to law. In support of its exception, the Agency asserts that the October 15, 1991, local agreement on negotiation ground rules between VARO, Cleveland and the Union was not valid because the VARO, Cleveland officials were not authorized to enter into an agreement that waived the terms of the master agreement. The Agency contends that the instant case concerns the authority of local officials to make agreements binding the Agency and is controlled by U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Council 228, Local 2532, 38 FLRA 386, 406-08 (1990) (SBA). The Agency states that "the evidence before the Arbitrator was that no VARO[,] Cleveland official had any authority to agree to negotiate Proposal 23, much less waive any objections to its negotiability." Exceptions at 7. The Agency asserts that the master agreement "provides that matters negotiated nationally may not be negotiated locally except upon the mutual consent of [Agency] and [Union] national representatives." Id. The Agency contends that the issue of core time had been fully negotiated into the Agency's personnel manual, MP-5, at the national level and, therefore, was not subject to local negotiation.
The Agency asserts that officials at VARO, Cleveland were directed to repudiate the October 15, 1991, agreement and that, subsequently, the Union was advised that Proposal 23 was not negotiable at the local level. The Agency maintains that the Arbitrator "cites no evidence, despite the VARO[,] Cleveland's repudiation of that October 1991 agreement and its conflict with the Master Agreement, to show that any VARO[, Cleveland] official had authority to agree to negotiate in violation of the Master Agreement and the [Union] national representative's bargaining rights." Id. at 8 (emphasis deleted).
Further, the Agency asserts that the award is contrary to law and, therefore, deficient because it "would require negotiations that would result in an unfair labor practice." Id. at 9 (emphasis deleted). The Agency argues that the master agreement limits bargaining at the local level to the impact and implementation of matters agreed to at the national level and that the Arbitrator's award requiring the negotiation of Proposal 23 in the supplemental local agreement would constitute a repudiation of the master agreement and an unfair labor practice by both the Agency and the Union. The Agency requests that the award be either set aside or remanded to the parties "for a determination as to whether VARO[, Cleveland] had authority to enter an agreement with Local 2823 to waive the requirements of the Master Agreement." Id. at 11-12.
IV. Analysis and Conclusions
We conclude that the Agency has failed to demonstrate that the award is deficient as contrary to law, rule, or regulation, or on any other ground under the Statute. Accordingly, we will deny the Agency's exceptions.
With respect to the Agency's contention that the award is contrary to law, the Agency cites no law with which the award conflicts, and none is apparent to us. See U.S. Department of the Treasury, United States Mint and American Federation of Government Employees, Mint Council, Local 1023, 43 FLRA 1535, 1538 (1992). In particular, the Agency does not show that the award is contrary to any of the statutory provisions governing flexible work schedules contained in 5 U.S.C. § 6131.
To the extent that the Agency's exception can be construed as a claim that the award is contrary to law on the ground that the award is inconsistent with SBA, the Agency's exception provides no basis for finding the award deficient. In SBA, the Authority found that the case record did not support a supervisor's authority to execute a settlement agreement with the union obligating the agency to pay a considerable amount of money to the union. In this case, the record shows that the parties met to negotiate a supplemental local agreement as authorized under the national master agreement. The Agency contended before the Arbitrator that VARO, Cleveland officials were not given authority to enter into an agreement that would conflict with flexitime provisions negotiated at the national level in the master agreement and the Agency's personnel manual.
However, the Arbitrator was not persuaded by the Agency's argument that VARO, Cleveland officials were not authorized to enter into the October 15, 1991, agreement which established ground rules for negotiation of a local supplemental agreement, and he concluded that the agreement was valid. He found that the Agency's allegation that Proposal 23 was nonnegotiable was untimely under the ground rules agreement and that he was not required to consider that allegation in the arbitration proceeding. The Agency's contention that it did not authorize its officials at VARO, Cleveland to negotiate the ground rules agreement and that the Arbitrator should not have enforced the ground rules agreement merely constitutes disagreement with the Arbitrator's reasoning and conclusions and with his interpretation of the ground rules agreement and of the master agreement, and as such provides no basis for finding the award deficient. See, for example, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 95-96 (1991) (disagreement with an arbitrator's interpretation of contractual bargaining rights provided no basis on which to find award deficient); Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3, 8-9 (1991) (agency's contention that it did not authorize a foreman to promise overtime to employees merely constituted disagreement with the arbitrator's evaluation of the evidence and his findings and conclusions).
To the extent that the Agency contends that the award is deficient because the Arbitrator erred in finding that the issue of the negotiability of Proposal 23 was untimely raised, we note that such a finding by the Arbitrator constitutes a determination as to the procedural arbitrability of the issue of the negotiability of Proposal 23. Such procedural arbitrability determinations are generally not subject to review or challenge before the Authority. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 43 FLRA 963, 966 (1992). Nothing in the Agency's arguments regarding the Arbitrator's finding that the issue of the negotiability of Proposal 23 was not arbitrable under the parties' agreement because it was not timely raised by the Agency provides a basis for concluding that the Arbitrator's resolution of the procedural arbitrability question in this case is deficient.
Further, we find no merit in the Agency's contention that the Arbitrator's award will force the Agency to commit an unfair labor practice by negotiating over Proposal 23. The Arbitrator specifically found that the Agency's allegation of nonnegotiability under the master agreement was untimely raised under the provisions of the ground rules agreement. The Agency's exception again constitutes mere disagreement with the Arbitrator's interpretation and application of the ground rules agreement and provides no basis for finding the award deficient. See id. The Agency has not demonstrated that compliance with the Arbitrator's award enforcing the local ground rules agreement and determining which matters are negotiable in the supplemental local agreement under the parties' master agreement will require the Agency to repudiate the master agreement as the Agency claims. We note also that the Agency head could have reviewed the ground rules agreement and will have an opportunity to review the completed supplemental local agreement under section 7114(c) of the Statute.
Finally, there is no basis on which to grant the Agency's request that we remand this case to the parties for a finding on the authority of VARO, Cleveland to enter into the ground rules agreement. The Arbitrator's award clearly constitutes a finding that the ground rules agreement was binding on the parties and a rejection of the Agency's contention that the VARO, Cleveland officials had no authority to enter into that agreement. Therefore, there is no need for further clarification by the Arbitrator on that point.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Consistent with the manner in which the parties and the Arbitrator use the term "negotiable," we will use that term in this decision to mean that the parties' master agreement does not relieve the Agency of its obligation to bargain over a Union proposal submitted for inclusion in the supplemental local agreement.
2. Article 5, Section 1 of the parties' master agreement provides as follows:
Contract provisions contained in local contracts in existence prior to the Master Agreement will continue in effect insofar as they do not conflict with the Master Agreement. Whenever any subject is addressed in the Master Agreement, the terms of the Master Agreement shall prevail over the provisions of the local agreement concerning the same subject. For example, provisions that are on the same subjects as those covered in the Master [Agreement] which (a) are different from the Master Agreement (whether superior or inferior) or; (b) would alter the terms of the Master Agreement or; (c) would interfere with or impair its implementation, are considered to be in conflict and are superseded