American Federation of Government Employees, Local 3529 (Union) and United States, Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas (Agency)

[ v59 p603 ]

59 FLRA No. 109

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3529
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION
IRVING, TEXAS
(Agency)

0-AR-3733

_____

DECISION

January 30, 2004

_____

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 the Union's exception to an award of Arbitrator Elvis C. Stephens filed 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 exception.

      The Arbitrator denied the Union's grievance alleging that the Agency violated the parties' agreement by refusing to bargain over certain employee benefits that were authorized by recent legislation. For the following reasons, we deny the Union's exception.

II.     Background and Arbitrator's Award

      Pursuant to recent legislation, the Union sought to bargain with the Agency over paying expenses related to professional credentials and health care premiums. When the Agency refused to bargain, the Union filed a grievance. The grievance was unresolved and was submitted to arbitration where the Arbitrator stated the following issues:

Did the Agency violate Section 3.01 or Section 42.03.A of the collective bargaining agreement or 5 [U.S.C. §] 7116(a)(1) and (5) when it refused the Union's requests . . . to reopen the agreement and negotiate over the [p]rofessional [c]redentials[] and [h]ealth [i]nsurance [c]overage for Reservists issues?[ [n1] ] If so, what is the proper remedy?

Award at 1.

      Initially, the Arbitrator found that Section 42.03.A of the parties' agreement permits the parties to reopen negotiations over matters covered by their agreement only if the law at issue "requires the contract to be changed" in order to conform to the law. Id. at 8. According to the Arbitrator, neither of the laws cited by the Union required a change to any provision in the parties' agreement. In this connection, the Arbitrator explained that both of the laws at issue use the term "may" rather than "shall" in authorizing the Agency to pay expenses related to professional credentials and health care premiums. Id. at 8-9. Accordingly, the Arbitrator found that "[t]he changes in question made it permissible for the [A]gency to offer additional benefits [but] did not require such additional benefits." Id. at 9.

      Noting that the matters the Union was seeking to bargain over were "covered by the contract[,]" the Arbitrator concluded that the Agency was not required to bargain with the Union as requested. Id. In reaching this conclusion, the Arbitrator rejected the Union's claim that the Agency was required to bargain under Dep't of Veterans Affairs, Veterans Admin. Med. Ctr., Veterans Canteen Svc., Lexington, Ky., 44 FLRA 162 (1992) (VA, Lexington). According to the Arbitrator, VA, Lexington concerned an agency's unilateral change to conditions of employment, not an agency's refusal to bargain over "a union['s] request to change a provision of the [parties' agreement]." Award at 9.

      Accordingly, the Arbitrator found that the Agency did not violate the parties' agreement by refusing the Union's request to bargain, and he denied the grievance. [ v59 p604 ]

III.     Positions of the Parties

      The Union argues that the award is contrary to law. Specifically, the Union asserts that, under VA, Lexington, "matters concerning conditions of employment over which an agency has discretion are negotiable if the agency's discretion is not exclusive and the matters to be negotiated are not otherwise inconsistent with law or applicable rule or regulation." Exception at 1.

      The Agency opposes the Union's exception that the award is contrary to VA, Lexington because, according to the Agency, "the Activity did not implement any changes" in conditions of employment. Opposition at 2.

IV.     The Award Is Not Contrary to the Authority's Decision in VA, Lexington

      When an exception challenges an arbitration award on the basis that the award is contrary to law, the Authority reviews the question of law raised in the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In doing so, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Arbitrator interpreted Section 42.03.A of the parties' agreement as requiring the Agency to bargain over matters covered by the parties' agreement only in circumstances where changes in law require a change to that agreement. The Arbitrator found that the two changes in law cited by the Union did not require any changes to the parties' agreement. The Union does not dispute these arbitral findings.

      Rather, the Union's sole claim is that the award conflicts with the Authority's decision in VA, Lexington. In VA, Lexington, the Authority held that agencies are required to bargain over "changes" to conditions of employment over which they have discretion, provided that the di