American Federation of Government Employees, Council 236 (Union) and United States, General Services Administration (Agency)
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58 FLRA No. 144
OF GOVERNMENT EMPLOYEES
GENERAL SERVICES ADMINISTRATION
June 6, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jeffrey J. Goodfriend filed by the Union under § 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 exceptions.
II. Background and Arbitrator's Award
This dispute involves the Agency's decision to quickly reorganize a sub-division within the Federal Service Supply -- the Property Management Program/Personal Property Division (PPD) -- in an effort to reduce costs and stave off any potential elimination of the sales division within the PPD. Award at 14. After the Agency's decision to reorganize, the Union offered several impact and implementation proposals. The Union filed a grievance claiming that the Agency failed to bargain in good faith because the Agency's bargaining team did not have authority to enter into binding agreements and because it took an adversarial approach to bargaining, rather than an interest-based approach, in violation of Article 3 of the parties' agreement. Accordingly, the Arbitrator set forth the issue as follows:
Did the U.S. General Services Administration ("GSA") bargain in good faith with the American Federation of Government Employees, Council 236 ("the Union") over the reorganization of GSA's Federal Supply Service Property Management Program? If not, what is the appropriate remedy to be applied by the arbitrator?
Award at 1.
Upon review, the Arbitrator determined that the record did not support the Union's contentions that the Agency failed to bargain in good faith. In resolving this issue, the Arbitrator determined that the Agency's team had authority to negotiate on behalf of the Agency, and that the Agency "met and negotiated with the Union over substantive proposals for two days and then went to mediation for one day, continuing the negotiations and agreed in principal [sic] to four of the seven Union proposals." Award at 18, 19; also citing Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pa., 11 FLRA 639 (1983) (BOP, Lewisburg).
Additionally, the Arbitrator found that the Agency met its obligation to bargain in good faith even applying an interest-based bargaining standard. Award at 20. Specifically, the Arbitrator found that the Union's proposals, which would have delayed the implementation of the reorganization for three years, were directly at odds with the Agency's "core interest" to implement the reorganization as quickly as possible because it would generate immediate cost savings. Id. at 20-21.
Finally, the Arbitrator determined that since he found that the Agency bargained in "good faith," he did not need to address a defense the Agency raised in its post-hearing brief that it was not required to bargain because the proposals were outside the duty to bargain under either § 7106(a)/(b)(1) or Executive Order 12871. [n1] Id. at 22.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the Arbitrator failed to determine whether or not the Union's proposals were negotiable under § 7106(b)(1), and, as such, argues that [ v58 p583 ] the award is contrary to § 7106(b)(1). [n2] Exceptions at 1, 2.
Moreover, the Union claims that the Arbitrator incorrectly applied Authority precedent. Exceptions at 1. In this regard, the Union contends that the Arbitrator's reliance on BOP, Lewisburg, 11 FLRA at 641, was in error because that case involved a duty to bargain issue and proposals that were found to be nonnegotiable. Id.
B. Agency's Opposition
The Agency argues that the Arbitrator's decision was directly responsive to the issue presented and that after applying the law to the facts the Arbitrator determined that the Agency had in fact negotiated in "good faith." Opposition at 3.
The Agency contends that BOP, Lewisburg, 11 FLRA at 639, the case cited by the Arbitrator, is similar to the present case and that the Union's argument that it was improperly applied amounts to nothing more than mere disagreement. Opposition at 5-6. The Agency also argues that none of the negotiability issues now raised by the Union were raised before the Arbitrator and, thus, those issues should be dismissed under 5 C.F.R. § 2429.5. Finally, the Agency argues that the Union failed to raise any concerns over Executive Order 12871 to the Arbitrator and, as such, any argument pertaining to E.O. 12871 raised at this juncture by the Union should also be dismissed. Opposition at 3-4 (citing 5 C.F.R. § 2429.5).