52:1313(118)AR - - AFGE Local 3529 and DOD, Defense Contract Audit Agency, Central Region, Dallas, TX - - 1997 FLRAdec AR - - v52 p1313



[ v52 p1313 ]
52:1313(118)AR
The decision of the Authority follows:


52 FLRA No. 118

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3529

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE CONTRACT AUDIT AGENCY

CENTRAL REGION

DALLAS, TEXAS

(Agency)

0-AR-2781

_____

DECISION

March 20, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M.G. Ramon filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency's opposition, filed more than 30 days after service of the Union's exceptions, is untimely and has not been considered in this decision.

The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it implemented a plan to create three GS-13 Technical Specialist positions to be filled by employees affected by a reduction in force (RIF). The Arbitrator found that the Agency bargained in good faith with the Union prior to implementing its plan. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The factual background of this case is not clear from the award or the Union's submission. According to the Arbitrator:

[T]he Agency advised the Union of its wish to implement a plan for three positions, carrying grade of GS 13, Technical Specialist, to take care of RIF employees. Further, the GS 13 grade would take care of any balance between unit employees and supervisors. The Union demanded to bargain. After several discussions, the Agency advised the Union that it was going to implement the GS 13 grade as a three year pilot program.[(1)]

Award at 2.(2)

The Arbitrator stated the following issue before him:

Was the Agency in violation of the Collective Bargaining Agreement when it installed the GS 13 Technical Specialist position? If so, that the Arbitrator find the Agency in violation of refusal to bargain in good faith, and order them to bargain to an impasse.

Id. at 1. According to the Arbitrator, the Union alleged that the Agency violated the parties' agreement "and, more specifically but not limited to, the Partnership Agreement by refusing to bargain in good faith to an impasse before proceeding to implement the GS 13, Technical Specialist position." Id. at 3.

The Arbitrator considered the parties' collective bargaining agreement, their Partnership Agreement, and several provisions of the Statute, in resolving the grievance

With regard to the collective bargaining agreement, the Arbitrator stated that "certain" Union rights thereunder were qualified by other provisions in the agreement. The Arbitrator cited, among such provisions, Article 4 of the agreement, which provides for negotiations "at the election of Management" on the matters set forth in section 7106(b)(1) of the Statute, and Article 8, section 3, which provides:

A request for negotiations will not be considered adequate unless it is accompanied by initial written proposals . . . . If agreement is not reached within three or more bargaining session[s], the Employer may implement the policy within the scope of its last offer unless the Union timely invokes impasse resolution procedures.

Id. at 5 (emphasis omitted). The Arbitrator found that the Union had made a timely request to bargain over implementation of the Technical Specialist positions. The Arbitrator also found that the parties "had several discussions" regarding the matter, and that the Agency had submitted a counterproposal to the Union before implementation. Id. at 6.

With regard to the Partnership Agreement, the Arbitrator stated that it "is a well written document signed by both parties." Id. at 3. The Arbitrator found that the Partnership Agreement "states that parties be informed, discuss, and negotiate, when applicable . . . ." Id. However, the Arbitrator did "not read anywhere that it [was] an addendum" to the collective bargaining agreement. Id. The Arbitrator determined, in this regard, that the Agency had "honored the spirit of the Partnership Agreement by advising the Union about the GS 13 Technical Specialist grade." Id. at 6.

Finally, as relevant here, the Arbitrator listed sections 7106(b)(1) and 7116(a)(5) of the Statute as provisions that were identified by the Union as having been violated by the Agency. With regard to section 7106(b)(1), the Arbitrator merely quoted the phrase "at the election of the agency, . . . ." Id. at 5 (ellipses in original). With regard to section 7116(a)(5), the Arbitrator stated only: "According to the evidence and exhibits, the Agency consulted with the Union and in fact submitted a Counter Proposal." Id. at 6.

Based on the foregoing, the Arbitrator denied the grievance.

III. Union's Exceptions

The Union asserts that the award is deficient on two grounds. First, the Union claims that the award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator erred "when he implied [that] the parties' . . . Partnership Agreement was not a part of the c[ollective] b[argaining] a[greement]." Exceptions at 1. According to the Union, "[t]he FLRA has ruled that [o]nce a provision covering matters covered by 7106(b)(1) is included in an agreement, the provision is enforceable through grievance arbitration even though the agency could have withdrawn from bargaining on that matter prior to reaching final agreement." Id. (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990) (Labor)). The Union states that, when the parties included in the Partnership Agreement a provision for bargaining over matters set forth in section 7106(b)(1) of the Statute, they "made mandatory the normally permissive nature of these types of matters." Exceptions at 2.

Second, the Union claims that the award "fails to conform to law, rule or regulation." Id. at 3. The Union states that the Arbitrator incorrectly interpreted section 7106 of the Statute when he "seem[ed] to rule that 7106(a) rights overpower 7106(b) rights." Id. In this regard, the Union relies on the Authority's decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC Lexington). The Union also states that the Arbitrator incorrectly interpreted section 7116(a)(5) of the Statute when he stated that the Agency had "consulted" with the Union. Exceptions at 3. The Union asserts that "[t]here is a great difference between consulting with a Union . . . and negotiating with a Union . . . ." Id. The Union reiterates its argument that the parties "actually agreed to 'negotiate' and not just 'consult.'" Id.

IV. Analysis and Conclusions

1. The Award Draws Its Essence From the Agreement

The Arbitrator found that the parties' Partnership Agreement was not "an addendum to the [collective bargaining agreement]." Award at 3. The Union fails to cite any specific provision in the Partnership Agreement which explicitly or implicitly provides that it was intended to be a part of the collective bargaining agreement. The Union also fails to cite any provision in the collective bargaining agreement on which it relies in asserting that the Partnership Agreement was incorporated into the collective bargaining agreement. In this connection, we note that Article 38, Section 3 of the collective bargaining agreement contemplates amendments and reopeners.(3) However, the Union does not allege, and we find nothing in the record to suggest, that either party sought to amend or reopen the agreement. Put simply, there is no support for the Union's argument that the Partnership Agreement was a part of the collective bargaining agreement. Therefore, the Union's claim does not establish a basis on which to find the award deficient.

Further, the Union misconstrues the Authority's decision in Labor. In Labor, the Authority held that once a provision covering 7106(b)(1) matters is included in a collective bargaining agreement, the provision is enforceable through arbitration. The Authority did not, contrary to the Union's exception, state or imply that any agreement addressing 7106(b)(1) matters is enforceable through, or has "the same legally binding effect as[,]" a collective bargaining agreement. Exceptions at 1.(4)

Based on the foregoing, the Union has not demonstrated that the Arbitrator's interpretation of the collective bargaining agreement is implausible, irrational or unconnected to the wording of the agreement. Under these circumstances, there is no basis on which to find that the award fails to draw its essence from the collective bargaining agreement. See Labor, 34 FLRA at 575-77. Accordingly, we deny this exception.

2. The Award Is Not Contrary to the Statute

In circumstances where a Union's exceptions involve the award's consistency with law, we review the questions of law raised by the Union's exceptions and the Arbitrator's award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Here, the Union contends that the award is contrary to section 7106 and 7116(a)(5) of the Statute.

With regard to the former contention, the Union argues that "the only logical interpretation" of the award is that the Arbitrator concluded "that 7106(a) rights overpower 7106(b) rights." Exceptions at 3. According to the Union, although the matter of the creation of the GS-13 technical specialist positions "would normally be a permissive area of bargaining[,]" the Partnership Agreement "made this a contractually binding mandatory subject of bargaining." Id.

This contention assumes that the Partnership Agreement is enforceable through the parties' collective bargaining agreement.(5) To that extent, it is a reiteration of the Union's essence argument. For the reasons explained above, we find no merit to this claim. Moreover, the Arbitrator never explicitly or implicitly stated that section 7106(a) of the Statute overpowers section 7106(b) of the Statute. Because the premise of the Union's argument--that the Partnership Agreement is enforceable through the collective bargaining agreement--has been rejected, and because our review of the record yields no other basis on which to conclude that the Arbitrator misapplied section 7106 of the Statute, we conclude that the award is not deficient under section 7106 of the Statute.

With regard to the latter contention--that the award conflicts with section 7116(a)(5) of the Statute--the Union relies, in part, on the Arbitrator's use of the term "consult" rather than "negotiate" to support its claim that the Arbitrator incorrectly interpreted section 7116(a)(5) of the Statute. However, the Authority has declined to adopt an approach in reviewing arbitration awards requiring arbitrators to include certain specific words or phrases in their awards. See Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 287 (1990) (Authority refused to require that arbitrators use specific words in granting awards under the Back Pay Act). As such, the Arbitrator's use of the term "consult" rather than "negotiate" in his award is not a basis on which to find the Arbitrator's award deficient.(6)

Moreover, section 7106(b)(1) of the Statute, by its terms, sets forth permissive subjects of bargaining. An agency may elect, but is not required by section 7106, to bargain over these subjects. Here, the Arbitrator interpreted the Partnership Agreement as not creating an enforceable bargaining obligation, and, as discussed in the previous section, we deny the Union's exception challenging that interpretation. Therefore, there is no basis for concluding that the Agency was required to bargain over the plan to implement Technical Specialist positions.

Finally, parties are permitted to define through negotiations their bargaining obligations under the Statute. See generally Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536 (1996) ("the Authority has found that parties may define limits on . . . bargaining rights under the Statute."). Once the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the Arbitrator. Labor, 34 FLRA at 575. In Article 8, Section 3 of their agreement, the parties provided that if they do not reach agreement within three or more bargaining sessions, then the Agency is entitled to implement a "policy within the scope of its last offer unless the Union timely invokes impasse resolution procedures." Exceptions, Enclosure 2 at 10. The Union does not contend that this provision, which the Arbitrator identified in his award, is unenforceable, and there is no contention that the Union invoked impasse resolution procedures. There also is no claim that the Agency implemented any positions other than those discussed during the parties' bargaining sessions.

Based on the foregoing, we conclude that the award is not contrary to section 7106 or 7116 of the Statute. Accordingly, we deny this exception.

V. Decision

The exceptions are denied.




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

1. Apart from this reference to a pilot program, the Arbitrator did not discuss, and there is nothing in the record describing, the pilot program.

2. The Union's grievance, attached to the Union's exceptions, referenced a letter in which the Agency allegedly stated that the three disputed positions were not in the Union's bargaining unit. See Exceptions, Enclosure 3 at 1. However, the record contains no further reference to the bargaining unit status of the positions and no other information from which it is possible to even speculate what the Arbitrator meant by the "balance between unit employees and supervisors."

3. Article 38, Section 3 provides, in pertinent part:

A. This Agreement will be opened for amendment upon the written request of either party if any of the Sections herein are affected by changes in law, order, rulings, judicial decision, or third party decisions. . . .

B. Also, the Union may reopen this Agreement to include subjects not covered therein. . . .

Exceptions, Enclosure 2 at 76.

4. The Union does not claim that the Partnership Agreement itself constitutes a collective bargaining agreement under the Statute, which defines "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining." 5 U.S.C. § 7103(3). The Union also does not claim that the Partnership Agreement resulted from collective bargaining.

5. Although the Union relies on VAMC Lexington, 51 FLRA 386 (1995), to support its claim that the Partnership Agreement was enforceable through the collective bargaining agreement, VAMC Lexington does not address this issue. Rather, VAMC Lexington addresses the negotiability of bargaining proposals. In VAMC Lexington, the Authority set forth a framework for analyzing proposals asserted to be negotiable at the election of an Agency under section 7106(b)(1) of the Statute. The Arbitrator did not state, and the record does not disclose, that the issue before him concerned the negotiability of any bargaining proposals. Therefore, the Union's reliance on VAMC Lexington