52:1367(128)AR - - NAGE Local R2-98 and Army, Watervliet Arsenal, Watervliet, NY - - 1997 FLRAdec AR - - v52 p1367
[ v52 p1367 ]
The decision of the Authority follows:
52 FLRA No. 128
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
WATERVLIET, NEW YORK
April 30, 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 an exception to an award of Arbitrator Dana Edward Eischen 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 filed an opposition to the Union's exception.
The Arbitrator denied a grievance which alleged that the Agency violated the parties' collective bargaining agreement when it failed to provide the grievant "bump and retreat" rights during a reduction in force (RIF). For the following reasons, we conclude that the Union has failed to demonstrate that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exception.
II. Background and Arbitrator's Award
The Union represents a bargaining unit of nonappropriated fund instrumentality employees. The parties' collective bargaining agreement was originally negotiated in 1990 but, pursuant to an "automatic renewal" provision and in the absence of a request from either party to renegotiate, "rolled-over" in March 1993 for a new, 3-year term.
The Union filed a grievance on behalf of a grievant who was affected by an Agency reduction in force that took place in May 1994. The grievance alleged that the Agency's failure to accord the grievant bump and retreat rights violated Article 21, Section 5 of the parties' agreement, which, according to the Union, incorporated an Agency regulation (AR-215-3, Chapter 10; hereinafter "previous regulation").(1) The Agency denied the grievance, contending that the previous regulation had been superseded by a revised regulation (NAF/PSM; hereinafter "revised regulation").
When the grievance was not resolved, it was submitted to arbitration on the following issues:
(1) Did [the Agency] violate Article 21 of the [parties'] 1991 agreement in the personnel action impacting [the Grievant] in May-June 1994?
(2) If so, what shall be the remedy?
Award at 2.
The Arbitrator determined that the "crux" of the dispute was whether the RIF was governed by the previous or the revised regulation. Id. at 10. According to the Arbitrator, it was undisputed that, if the previous regulation "was still the governing regulation" at the time of the disputed RIF, then the grievant was entitled to bump and retreat rights. Id. at 10-11.
The Arbitrator found that Article 21, Section 5 does not specify procedures for a RIF but, rather, incorporates, by reference, applicable regulations. The Arbitrator found that, in this regard, Article 21, Section 5, is consistent with two other provisions in the parties' agreement: Article 32, Section 1(b), which provides that a RIF "shall be governed by applicable regulations," and Article 2, which provides that the parties are governed by:
published Agency policies and regulations in existence at the time the Agreement was approved; and by subsequently published Agency policies and regulations required by law or by the regulations of appropriate authorities.
Id. at 9-10.
According to the Arbitrator, the revised regulation originally was implemented October 1, 1991, and the original implementation was followed by "an intermediate revision" in December 1991, and subsequent publication in May 1993. Id. at 11. Noting that Article 21, Section 5 merely incorporated applicable regulations, the Arbitrator stated that the previous regulation was superseded by the revised regulation effective October 1, 1991, "subject only to the condition that the [Agency] notify the local exclusive representative and provide the opportunity to bargain impact and implementation prior to implementing." Id. at 16.
The Arbitrator found that, after receiving the September 1991 revised regulation and continuing in 1992 and 1993, the Agency contacted the Union president and "urged" the Union president to "discuss and negotiate impact and implementation issues . . . ." Id. at 15. The Arbitrator also found that from October 1991 (when the Union president resigned) through July 1994, there were no designated Union representatives and, from April 1993 to July 1994, there were no dues-paying members of the Union. The Arbitrator stated, in this regard, that the Union "had the right and the obligation . . . to designate its contact point" for negotiations.(2) Id. at 16. The Arbitrator concluded that the Agency "took all reasonably required steps to notify and engage in impact and implementation negotiations" with the Union, and that in the absence of any request or designation by the Union, there was no basis on which to conclude that the Agency was required to "seek out" national Union representatives for bargaining. Id.
The Arbitrator found that the previous regulation had been properly superseded by the revised regulation. Therefore, the Arbitrator concluded that the Agency did not violate Article 21, Section 5 of the parties' agreement, and he denied the grievance.(3)
III. Positions of the Parties
A. Union's Exception
The Union asserts that the award is "not in accordance with law." Exception at 6. According to the Union, "[t]he Arbitrator required the [A]gency only to engage in impact and implementation bargaining on a subject that could only have been covered by reopening the negotiated agreement." Id. at 8. The Union asserts that:
A Union may waive by silence its right to negotiate a change in working conditions and an agency may make the proposed changes after timely notice if there is no response. This is not true for issues already resolved through negotiation because to allow such an outcome would undermine the integrity of the negotiated agreement.
Id. at 5. The Union argues, in this regard, that if an issue "has already been resolved in the contract," then "there is no obligation to respond to a request to renegotiate the same issues until such time as the contract itself opens up again for negotiations." Id. at 6 (citing United States Department of Labor, 7 FLRA 688 (1982) (DOL)).(4) The Union maintains that Article 21 "is very specific that it contemplates bump and retreat provisions will be used in any" RIF. Id. at 2.
B. Agency's Opposition
The Agency asserts that the revised regulation superseded the previous regulation and that the Arbitrator correctly found that the Agency had afforded the Union an opportunity to bargain over the revised regulation prior to its implementation.
IV. Analysis and Conclusions
Citing Authority decisions, the Union contends that the award is not "in accordance with law." Exception at 6. We construe this argument as an assertion that the award is deficient under section 7122(a)(1) of the Statute because it is contrary to law. As the Union's exception challenges the award's consistency with law, the Authority reviews the questions of law raised by the Arbitrator's award and the Union's exception de novo. E.g., U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia, and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1424 (1996).
The premise of the Union's argument that the Agency was required to reopen the parties' agreement in order to implement the revised regulation is that, under the agreement, "anyone [a]ffected by a reduction in force would be allowed to [bump] and retreat . . . ." Exception at 6. That is, according to the Union, the agreement itself incorporated bump and retreat rights to the extent that the previous regulation would continue to govern RIFs until such time as the contract was reopened. However, the Arbitrator did not interpret the agreement as establishing bump and retreat rights; the Arbitrator interpreted the agreement merely as incorporating existing regulations. The Union does not contend that the award, insofar as it is based on an interpretation of Article 21, Section 5, fails to draw its essence from the agreement and, even if it made that argument, it does not appear that the award would be found deficient on this ground. Similarly, the Union does not contend, and their plain wording would not support a conclusion, that the other sections of Article 21 required the Agency to afford the grievant bump and retreat rights.
As interpreted by the Arbitrator, the parties' agreement incorporated the revised -- not the previous -- regulation. Consistent with this interpretation, the law referenced by the Union with which the award is allegedly inconsistent does not apply. Also consistent with the Arbitrator's interpretation of the agreement, there is no basis for concluding that the Agency was required to reopen the agreement in order to implement the revised regulation. Accordingly, the award is not contrary to law.(5)
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
1. Article 21 provides, in pertinent part:
Reduction in force means the involuntary release of one or more employees from their competitive level
. . . .
It is agreed that prior to the issuance of [RIF] notices . . . the EMPLOYER . . . agrees to provide the UNION . . . with a copy of computerized retention registers . . . .
An employee whose assignment to a lower grade position . . . is proposed . . . has a right to review . . . the retention register for their competitive level . . . .
Eligible . . . employees shall be placed on the NAF Reemployment Priority List and will be afforded reemployment opportunities . . . . Such employees shall be given preference for rehire . . . in the order of retention scores.
The displacing and retreat rights of employees affected by reduction-in-force shall be governed by applicable statutes, regulations, and directives.
. . . .
Award at 3-4 (emphasis added).
2. The Arbitrator cited in this connection Article 10, Section 1 of the parties' agreement, which provides, in relevant part:
The EMPLOYER agrees to recognize the elected officers and duly designated stewards of the UNION, and the UNION shall keep management advised in writing of the names of its officers and stewards. . . .
The UNION will notify the EMPLOYER, in writing, of any proposed change in the roster of stewards.
Award at 3.
3. The Arbitrator noted that, 6 months after filing its grievance, the Union filed an unfair labor practice charge against the Agency, alleging, inter alia, that the Agency had implemented the revised regulation without providing notice to the Union or bargaining with the Union. The Arbitrator also noted that the ULP was withdrawn by the Union when the Agency provided the Union with proof that it had contacted the former Union President in an attempt to bargain over the revised regulation.
4. In DOL, the Authority held that an agency is not free to make unilateral changes in "conditions of employment [that] have been embodied in a collective bargaining agreement." 7 FLRA at 696. In addition to DOL, the Union cites decisions holding that there is no obligation to bargain over matters that are "covered by" a collective bargaining agreement. See Exception at 6.
5. We note that the Arbitrator found, and the Union does not dispute, that the Agency took reasonable steps to notify the Union of, and engage with the Union in bargaining over, the revised regulation. Thus, there is no conte