[ v02 p506 ]
02:0506(69)AR
The decision of the Authority follows:
2 FLRA No. 69
MS. YVONNE T. DIXON
LABOR RELATIONS COUNSEL
DIVISION OF OPERATIONS MANAGEMENT
NATIONAL LABOR RELATIONS BOARD
1717 PENNSYLVANIA AVENUE, NW., ROOM 1057
WASHINGTON, D.C. 20570
RE: NATIONAL LABOR RELATIONS BOARD, OFFICE OF THE
GENERAL COUNSEL AND NATIONAL LABOR RELATIONS BOARD
UNION (DUFF, ARBITRATOR), FLRC No. 78A-175
DEAR MS. DIXON:
THE AUTHORITY HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD AND THE UNION'S OPPOSITION TO IT FILED
IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS CASE
CONCERNS CERTAIN ARTICLES OF LOCAL SUPPLEMENTARY AGREEMENTS NEGOTIATED
BETWEEN LOCAL 6 OF THE NATIONAL LABOR RELATIONS BOARD UNION (THE UNION)
AND REGION 6 OF THE NATIONAL LABOR RELATIONS BOARD (THE AGENCY). THE
UNION AND THE AGENCY ARE PARTIES TO TWO NATIONAL AGREEMENTS: ONE
NATIONAL AGREEMENT COVERS FIELD OFFICE PROFESSIONAL EMPLOYEES AND THE
OTHER NATIONAL AGREEMENT COVERS FIELD OFFICE CLERICAL EMPLOYEES. EACH
NATIONAL AGREEMENT PROVIDES-- SUBJECT TO EXPRESS RESTRICTIONS-- THAT
LOCAL SUPPLEMENTARY AGREEMENTS MAY BE NEGOTIATED BETWEEN UNION LOCALS
AND REGIONAL DIRECTORS. PURSUANT TO THIS PROVISION, LOCAL 6 AND REGION
6 ENTERED INTO A LOCAL SUPPLEMENTARY AGREEMENT TO EACH NATIONAL
AGREEMENT. AS REQUIRED BY THE NATIONAL AGREEMENTS, THESE LOCAL
SUPPLEMENTARY AGREEMENTS WERE SUBMITTED TO THE GENERAL COUNSEL AND THE
EXECUTIVE COMMITTEE OF THE UNION FOR APPROVAL.
EACH NATIONAL AGREEMENT ONLY ALLOWS DISAPPROVAL OF LOCAL
SUPPLEMENTARY AGREEMENTS THAT ARE NOT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2 OF ARTICLE XVIII /1/ OF EACH
NATIONAL AGREEMENT. THE BOARD'S GENERAL COUNSEL DISAPPROVED ONE ARTICLE
OF THE LOCAL SUPPLEMENTARY AGREEMENT COVERING PROFESSIONAL EMPLOYEES
AND
THREE ARTICLES OF THE LOCAL SUPPLEMENTARY AGREEMENT COVERING CLERICAL
EMPLOYEES. TWO OF THE DISAPPROVED ARTICLES WERE DISAPPROVED AS CONTRARY
TO SECTION 11(B) AND SECTION 12(B) OF E.O. 11491, AS AMENDED, AS WELL AS
IN CONFLICT WITH THE NATIONAL AGREEMENT. ACCORDINGLY, THE UNION SOUGHT
A NEGOTIABILITY DETERMINATION FROM THE FEDERAL LABOR RELATIONS COUNCIL
AS TO THESE TWO ARTICLES.
IN ITS DECISION ON THE UNION'S NEGOTIABILITY APPEAL, THE COUNCIL
OBSERVED THAT WHILE SECTION 11(C)(4) /2/ OF THE ORDER PERMITS AN APPEAL
TO THE COUNCIL BASED ON A UNION'S DISAGREEMENT WITH AN AGENCY HEAD'S
DETERMINATION THAT PROPOSALS VIOLATE THE ORDER, IT DOES NOT PROVIDE FOR
AN APPEAL TO THE COUNCIL TO RESOLVE AN ISSUE WHICH INVOLVES
INTERPRETATION OF A CONTROLLING NATIONAL AGREEMENT. MOREOVER, THE
COUNCIL STATED THAT WHEN A NEGOTIABILITY DISPUTE INVOLVES BOTH SECTION
11(C)(1) MATTERS, PERTAINING TO THE INTERPRETATION OF A CONTROLLING
AGREEMENT AT A HIGHER AGENCY LEVEL, AND 11(C)(4) MATTERS, THE PARTIES
MUST FIRST RESOLVE THE ISSUE AS TO THE CONTROLLING AGREEMENT.
THEREFORE, THE COUNCIL RULED THAT THE UNION'S APPEAL UNDER SECTION
11(C)(4) WAS PREMATURE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
NEGOTIABILITY APPEAL BUT WITHOUT PREJUDICE TO ITS RENEWAL SHOULD IT BE
APPROPRIATELY DETERMINED THAT ANY OF THE DISAPPROVED ARTICLES WERE
CONSISTENT WITH THE NATIONAL AGREEMENT. /3/ THEREAFTER, PURSUANT TO THE
PROCEDURES OF THE NATIONAL AGREEMENT AND IN ACCORDANCE WITH THE
DIRECTIONS OF THE COUNCIL, THE PARTIES PROCEEDED TO ARBITRATION. AS
STATED BY THE ARBITRATOR, THE ISSUE BEFORE HIM WAS:
DOES THE REFUSAL OF THE GENERAL COUNSEL TO APPROVE CERTAIN PROVISIONS
OF THE SUPPLEMENTARY
AGREEMENTS COVERING FIELD OFFICE PROFESSIONAL AND CLERICAL EMPLOYEES
IN REGION SIX CONSTITUTES
A VIOLATION OF ARTICLE XVIII OF THE NATIONAL AGREEMENTS?
IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR DISCUSSED THE
DISAPPROVED ARTICLES BY SUBJECT MATTER. THE ARBITRATOR FIRST CONSIDERED
THE SUBJECT OF EMPLOYEE COUNSELING. THE AGENCY HAD DISAPPROVED THE
EMPLOYEE COUNSELING ARTICLE OF BOTH LOCAL SUPPLEMENTARY AGREEMENTS. THE
BASIS OF THE AGENCY'S REJECTION HAD BEEN THAT THE COUNSELING INTERVIEWS
WERE A GUISE FOR AN APPRAISAL SYSTEM WHICH MODIFIED AND CONFLICTED WITH
THE COMPREHENSIVE APPRAISAL SYSTEM PRESCRIBED BY THE NATIONAL
AGREEMENTS. HOWEVER, THE ARBITRATOR FOUND THAT THE ARTICLES DID NOT
CONFLICT WITH ANY PROVISION OF THE APPLICABLE NATIONAL AGREEMENT.
THEREFORE, IN SEC. 1 OF HIS AWARD, THE ARBITRATOR HELD THAT THE GENERAL
COUNSEL'S REFUSAL TO APPROVE THE EMPLOYEE COUNSELING ARTICLES VIOLATED
THE APPLICABLE NATIONAL AGREEMENT.
THE ARBITRATOR NEXT CONSIDERED THE CLERICAL ARTICLE OF THE LOCAL
SUPPLEMENTARY AGREEMENT COVERING CLERICAL EMPLOYEES. /4/ THE ARBITRATOR
IN CERTAIN RESPECTS AGREED WITH THE AGENCY THAT PROVISIONS OF THE
ARTICLE MODIFIED OR CONFLICTED WITH THE NATIONAL AGREEMENT.
ACCORDINGLY, HE ORDERED THE "PROVIDED FURTHER" CLAUSE OF SECTION 2
DELETED. HE ALSO ORDERED THE DELETION OF THE WORDS "EQUAL OR
HIGHER-GRADED" FROM SECTION 6. HOWEVER, WITH THESE DELETIONS, HE HELD
THAT NO PROVISION OF THE ARTICLE CONFLICTED WITH THE NATIONAL AGREEMENT
AND THAT ALL REQUIREMENTS OF THE NATIONAL AGREEMENT FOR LOCAL
SUPPLEMENTARY AGREEMENTS WERE FULLY SATISFIED. THUS, IN SEC. 2 OF HIS
AWARD, HE DIRECTED THAT THE GENERAL COUNSEL APPROVE THE ARTICLE AS
AMENDED.
THE AGENCY REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
OF SEC. 1 AND SEC. 2 OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS FOUR
EXCEPTIONS WHICH ARE DISCUSSED BELOW. /5/ THE UNION FILED AN
OPPOSITION.
IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS.
IN ITS FIRST EXCEPTION TO THE ARBITRATOR'S AWARD, THE AGENCY ASSERTS
THAT SEC. 1 OF THE AWARD, FINDING THAT THE DISAPPROVAL OF THE EMPLOYEE
COUNSELING ARTICLES VIOLATED THE RESPECTIVE NATIONAL AGREEMENTS, IS
ARBITRARY AND UNREASONABLE. IN ITS SECOND EXCEPTION TO THE AWARD, THE
AGENCY ASSERTS THAT SEC. 2 OF THE AWARD, FINDING THAT THE CLERICAL
BACKUP ARTICLE WITH SPECIFIED DELETIONS WAS FULLY CONSISTENT WITH THE
NATIONAL AGREEMENT AND DIRECTING ITS APPROVAL AS AMENDED, IS ARBITRARY,
UNREASONABLE, AND CONTRARY TO LAW. HOWEVER, THE AGENCY CITES NO
SPECIFIC LAW IN SUPPORT OF THIS EXCEPTION. IN SUPPORT OF BOTH
EXCEPTIONS, THE AGENCY ARGUES THAT THE ARBITRATOR ACTED ARBITRARILY AND
UNREASONABLY IN CONCLUDING THAT THESE ARTICLES WERE WITHIN THE
RESTRICTIONS OF THE APPLICABLE NATIONAL AGREEMENT AND SHOULD THEREFORE
BE APPROVED.
AS TO THE AGENCY'S FIRST AND SECOND EXCEPTIONS, THE AGENCY'S
ASSERTIONS THAT SEC. 1 AND SEC. 2 OF THE ARBITRATOR'S AWARD ARE
ARBITRARY AND UNREASONABLE CONSTITUTE NOTHING MORE THAN DISAGREEMENT
WITH THE ARBITRATOR'S INTERPRETATION OF THE VARIOUS NEGOTIATED
AGREEMENTS. AS IS WELL ESTABLISHED UNDER THE ORDER, A CHALLENGE TO AN
ARBITRATOR'S INTERPRETATION OF A NEGOTIATED AGREEMENT FAILS TO STATE A
GROUND ON WHICH A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD MAY BE
GRANTED. /6/ LIKEWISE, AN ASSERTION THAT AN ARBITRATOR'S AWARD VIOLATES
LAW BUT WITHOUT CITING ANY LAW TO SUPPORT THAT ASSERTION PROVIDES NO
BASIS FOR ACCEPTANCE OF A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.
/7/ ACCORDINGLY, NEITHER THE AGENCY'S FIRST EXCEPTION NOR THE AGENCY'S
SECOND EXCEPTION TO THE ARBITRATOR'S AWARD PROVIDES A BASIS FOR
ACCEPTANCE OF ITS PETITION FOR REVIEW UNDER SECTION 2411.32 OF THE RULES
OF PROCEDURE AS AMENDED.
IN ITS THIRD EXCEPTION TO THE AWARD, THE AGENCY ASSERTS THAT SEC. 2
OF THE AWARD, FINDING THAT THE CLERICAL BACKUP ARTICLE WITH SPECIFIED
DELETIONS WAS FULLY CONSISTENT WITH THE NATIONAL AGREEMENT AND DIRECTING
ITS APPROVAL AS AMENDED, VIOLATES SECTION 12(B) OF THE ORDER. IN
SUPPORT THE AGENCY ARGUES THAT IN FINDING THAT THE CLERICAL BACKUP
ARTICLE WAS IMPROPERLY DISAPPROVED BY THE GENERAL COUNSEL, THE
ARBITRATOR FAILED TO ADEQUATELY CONSIDER WHETHER THE PROVISIONS WERE IN
CONFLICT WITH SECTION 12(B) OF THE ORDER. IN THIS RESPECT THE AGENCY
CLAIMS THAT THE ARTICLE PERTAINS TO PROHIBITED SUBJECTS OF BARGAINING
UNDER SECTION 12(B)(1), 12 (B)(2), AND 12(B)(5) OF THE ORDER /8/ AND
COULD NOT HAVE BEEN PROPERLY APPROVED.
IN ITS FOURTH EXCEPTION TO THE AWARD, THE AGENCY ASSERTS THAT SEC. 2
OF THE AWARD VIOLATES SECTION 11(B) OF THE ORDER. /9/ IN SUPPORT THE
AGENCY ARGUES THAT IN FINDING THAT THE CLERICAL BACKUP ARTICLE WAS
IMPROPERLY DISAPPROVED BY THE GENERAL COUNSEL, THE ARBITRATOR FAILED TO
ADEQUATELY CONSIDER WHETHER THE PROVISIONS WERE IN CONFLICT WITH SECTION
11(B) OF THE ORDER. IN THIS RESPECT THE AGENCY CLAIMS THAT THE ARTICLE
PERTAINS TO MATTERS ENUMERATED IN SECTION 11(B) AND COULD NOT HAVE BEEN
PROPERLY APPROVED.
ALTHOUGH THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD VIOLATES THE
ORDER, THE AGENCY'S PETITION FAILS TO DESCRIBE THE FACTS AND
CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTIONS THAT SEC. 2 OF THE
AWARD VIOLATES SECTION 12(B) OR SECTION 11(B) OF THE ORDER. IN THIS
REGARD, THE AUTHORITY NOTES THAT THE PARTIES WENT TO ARBITRATION IN THIS
CASE IN ACCORDANCE WITH THE DECISION OF THE FEDERAL LABOR RELATIONS
COUNCIL IN THE NATIONAL LABOR RELATIONS BOARD UNION CASE, FLRC NO.
77A-109, TO RESOLVE THE QUESTION OF WHETHER THE DISPUTED CLERICAL BACKUP
ARTICLE IN THE SUPPLEMENTARY AGREEMENT CONFLICTED WITH THE CONTROLLING
NATIONAL AGREEMENT. IN THAT CASE THE COUNCIL POINTED OUT THAT THE
QUESTION OF THE NEGOTIABILITY OF THE DISPUTED PROVISIONS COULD BE RAISED
"IN A PETITION DULY FILED WITH THE COUNCIL AFTER IT IS RESOLVED . . .
THAT (THE) PROVISIONS DO NOT CONFLICT WITH (THE) CONTROLLING AGREEMENT."
THUS, THE ISSUE BEFORE THE ARBITRATOR IN THIS CASE WAS:
DOES THE REFUSAL OF THE GENERAL COUNSEL TO APPROVE CERTAIN PROVISIONS
OF THE SUPPLEMENTARY
AGREEMENTS . . . CONSTITUTE A VIOLATION OF ARTICLE XVIII OF THE
NATIONAL AGREEMENTS?
IT APPEARS THAT IT WAS PRECISELY THIS ISSUE ALONE THAT THE ARBITRATOR
RESOLVED WHEN, IN SEC. 2 OF HIS AWARD, HE FOUND THAT THE CLERICAL BACKUP
ARTICLE WITH SPECIFIED DELETIONS DID NOT CONFLICT WITH THE NATIONAL
AGREEMENT. NOTHING IN THE AGENCY'S PETITION FOR REVIEW INDICATES THAT
THE ISSUE BEFORE THE ARBITRATOR OR THE ARBITRATOR'S AWARD CONCERNED
WHETHER THE CLERICAL BACKUP ARTICLE PERTAINED TO ANY MATTERS ENUMERATED
IN EITHER SECTION 12(B) OR SECTION 11(B) OF THE ORDER. FURTHER, IN HIS
AWARD, APPARENTLY RESPONDING TO THE AGENCY'S ARGUMENTS THAT CERTAIN
PROVISIONS OF THE CLERICAL BACKUP ARTICLE WERE NONNEGOTIABLE UNDER THE
ORDER, THE ARBITRATOR RESPONDED:
(T)HE FEDERAL LABOR RELATIONS COUNCIL IS THE PROPER FORUM TO
DETERMINE THAT QUESTION. OUR
DECISION WILL BE DIRECTED PRIMARILY TO THE ISSUE WHETHER THE NATIONAL
AGREEMENTS HAVE BEEN
VIOLATED.
IN VIEW OF THESE CIRCUMSTANCES, THE AGENCY HAS FAILED TO DEMONSTRATE
IN WHAT MANNER THE AWARD VIOLATES EITHER SECTION 12(B) OR SECTION 11(B)
OF THE ORDER. IT APPEARS THAT IN SEC. 2 OF HIS AWARD, THE ARBITRATOR
ONLY DETERMINED, ON THE BASIS OF HIS INTERPRETATION OF THE NEGOTIATED
AGREEMENTS, THAT THE CLERICAL BACKUP ARTICLE WAS CONSISTENT WITH THE
NATIONAL AGREEMENT. THE AGENCY DOES NOT DEMONSTRATE THAT THE ARBITRATOR
MEANT ANY MORE THAN THAT WHEN IN SEC. 2 OF HIS AWARD, HE DIRECTED THE
ARTICLE APPROVED.
FOR THESE REASONS THE AGENCY'S PETITION FAILS TO PRESENT THE FACTS
AND CIRCUMSTANCES NECESSARY TO DEMONSTRATE THAT IN FINDING THE CLERICAL
BACKUP ARTICLE CONSISTENT WITH THE NATIONAL AGREEMENT, THE ARBITRATOR
RENDERED AN AWARD VIOLATIVE OF EITHER SECTION 12(B) OR SECTION 11(B) OF
THE ORDER. THEREFORE, NEITHER THE AGENCY'S THIRD EXCEPTION NOR ITS
FOURTH EXCEPTION PROVIDES A BASIS FOR ACCEPTANCE OF ITS PETITION FOR
REVIEW UNDER SECTION 2411.2 OF THE RULES OF PROCEDURE AS AMENDED. /10/
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
REVIEW OF AN ARBITRATOR'S AWARD. /11/ LIKEWISE, THE AGENCY'S REQUEST
FOR A STAY IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF
SECTION 2411.47(F) OF THE OPERATIVE RULES.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
CC: W. G. KOCOL
NLRBU
/1/ ARTICLES XVIII, SUPPLEMENTAL AND LOCAL SUPPLEMENTARY AGREEMENTS,
SECTION 2 OF EACH NATIONAL AGREEMENT PROVIDES:
SECTION 2. LOCAL SUPPLEMENTARY AGREEMENTS MAY BE NEGOTIATED BETWEEN
LOCAL UNIONS AND
REGIONAL DIRECTORS AND THE OFFICER-IN-CHARGE IN SUBREGION 38 (PEORIA,
ILLINOIS). ANY SUCH
AGREEMENT SHALL BE SUBJECT TO THE APPROVAL OF THE GENERAL COUNSEL AND
THE EXECUTIVE COMMITTEE
OF THE UNION AND SHALL BE SUBJECT TO THE RESTRICTIONS LISTED BELOW:
(A) ALL MATTERS COVERED MUST BE WITHIN THE ADMINISTRATIVE AUTHORITY
OF THE REGIONAL
DIRECTOR;
(B) ONLY LOCAL CONDITIONS AFFECTING THE EMPLOYEES OF THAT REGION WILL
BE COVERED;
(C) PROVISIONS NEGOTIATED MAY NOT MODIFY OR BE IN CONFLICT WITH ANY
PROVISION OF THIS
AGREEMENT OR ANY SUPPLEMENT HERETO; NOR MAY SUCH PROVISIONS BE IN
CONFLICT WITH APPLICABLE
LAW /1A/ AND
(D) PROVISIONS MUST BE CONSISTENT WITH THE CERTIFICATION OF THE
UNION.
/1A/ ANY DETERMINATION BY A PARTY TO THIS AGREEMENT THAT A PROVISION
SHOULD BE REJECTED PURSUANT TO THIS SUBSECTION WILL NOT BE MADE UNTIL
THE OTHER PARTY HAS BEEN NOTIFIED AND BEEN GIVEN AN OPPORTUNITY TO
CONSULT ON THE MATTER.
/2/ SECTION 11 OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 11. NEGOTIATION OF AGREEMENTS.
. . . .
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(1) AN ISSUE WHICH INVOLVES INTERPRETATION OF A CONTROLLING AGREEMENT
AT A HIGHER AGENCY
LEVEL IS RESOLVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT,
OR, IF NONE, UNDER AGENCY
REGULATIONS;
. . . .
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR
(II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR ARE
NOT OTHERWISE APPLICABLE TO BAR NEGOTIATIONS UNDER PARAGRAPH (A) OF
THIS SECTION.
/3/ NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 6 AND NATIONAL LABOR
RELATIONS BOARD, REGION 6, PITTSBURGH, PENNSYLVANIA, FLRC NO.
77A-109(APR. 12, 1978), REPORT NO. 149.
/4/ ARTICLE VI, THE CLERICAL BACKUP ARTICLE, PROVIDES:
SECTION 1. AS DESCRIBED FURTHER IN THIS ARTICLE, THE FOLLOWING
CLERICAL POSITIONS SHALL
HAVE CLERICAL BACKUPS:
SECRETARY TO REGIONAL ATTORNEY
SECRETARY TO ASSISTANT TO THE REGIONAL DIRECTOR
SECRETARY RESPONSIBLE FOR PREPARATION OF R CASE DECISIONS
COMPLIANCE CLERK
ELECTION CLERK
SECTION 2. THERE WILL BE TWO (2) CLERICAL BACKUPS FOR EACH POSITION
REFERRED TO IN SECTION
1 ABOVE, PROVIDED THAT:
A) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT AT ITS DISCRETION FROM
ASSIGNING BACKUPS TO ANY
CLERICAL POSITION NOT DESCRIBED IN SECTION 1 ABOVE,
B) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT IN ITS DISCRETION FROM
ASSIGNING MORE THAN TWO
CLERICALS TO SERVE AS BACKUPS,
C) NOTHING HEREIN SHALL PRECLUDE MANAGEMENT IN ITS DISCRETION FROM
ASSIGNING A CLERICAL
EMPLOYEE TO ACT AS A BACKUP ON MORE THAN ONE POSITION REQUIRING
BACKUPS, AND
D) NOTHING HEREIN SHALL REQUIRE MANAGEMENT TO ASSIGN TEN SEPARATE
CLERICAL EMPLOYEES TO
SERVE AS BACKUPS FOR THOSE POSITIONS REFERRED TO IN SECTION 1 ABOVE:
PROVIDED FURTHER, THAT NO CLERICAL EMPLOYEE OCCUPYING ANY OF THE
POSITIONS DESCRIBED IN SECTION 1 ABOVE SHALL BE ASSIGNED TO ACT AS A
BACKUP FOR ANY OF THE POSITIONS DESCRIBED IN SECTION 1 ABOVE, UNLESS AND
UNTIL TWO OTHER CLERICAL EMPLOYEES ARE ASSIGNED AS BACKUPS FOR THAT
POSITION.
SECTION 3. THE SELECTION, RETENTION, ASSIGNMENT AND UTILIZATION OF
THOSE INDIVIDUALS SELECTED AS BACKUPS SHALL BE SOLELY DETERMINED BY
MANAGEMENT.
SECTION 4. CLERICAL EMPLOYEES IN THE REGIONAL OFFICE, WHO HAVE
SATISFACTORILY COMPLETED THEIR PROBATIONARY PERIOD, MAY APPLY FOR
TRAINING IN ANY CLERICAL POSITION UTILIZING BACKUPS. CONSISTENT WITH
AND SUBJECT TO THE OPERATING NEEDS AND THE EFFICIENCY OF THE REGIONAL
OFFICE, APPLICATIONS FOR TRAINING AS A BACKUP, AS DEFINED ABOVE, MAY BE
APPROVED BY MANAGEMENT.
SECTION 5. CONSISTENT WITH AND SUBJECT TO THE OPERATING NEEDS AND
THE EFFICIENCY OF THE REGIONAL OFFICE, CLERICAL EMPLOYEES, IF THEY SO
REQUEST, WILL BE GIVEN ASSISTANCE IN THEIR OWN JOBS WHILE TRAINING IN OR
PERFORMING THE DUTIES OF ANOTHER POSITION.
SECTION 6. NO EMPLOYEE CAN REJECT MANAGEMENT ASSIGNMENT AS A BACKUP
TO ANY EQUAL OR HIGHER-GRADED POSITION.
/5/ IN SEC. 3 OF HIS AWARD, THE ARBITRATOR HELD THAT THE GENERAL
COUNSEL'S DISAPPROVAL OF THE BRIDGE PROGRAM ARTICLE OF THE LOCAL
SUPPLEMENTARY AGREEMENT COVERING CLERICAL EMPLOYEES WAS CONTRARY TO
THE
NATIONAL AGREEMENT. HOWEVER, THE AGENCY DOES NOT SEEK REVIEW OF SEC. 3
OF THE ARBITRATOR'S AWARD. ACCORDINGLY, THAT PORTION OF THE AWARD IS
NOT BEFORE THE AUTHORITY IN THIS CASE.
/6/ E.G., COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AND
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION FIELD OPERATIONS (MARSHALL, ARBITRATOR), FLRC NO.
78A-15(MAY 25, 1978), REPORT NO. 150.
/7/ DEPARTMENT OF THE AIR FORCE, 4392D AEROSPACE SUPPORT GROUP (SAC)
AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 1001
(VANDENBERG AIR FORCE BASE, CALIFORNIA) (POLLARD, ARBITRATOR), 5 FLRC
327 (FLRC NO. 77A-24(MAY 4, 1977), REPORT NO. 125).
/8/ SECTION 12(B) OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENT. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
. . . .
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY
. . . ;
. . . .
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH (AGENCY)
OPERATIONS ARE TO BE
CONDUCTED(.)
/9/ SECTION 11(B) OF THE ORDER PROVIDES IN PERTINENT PART:
(T)HE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
RESPECT TO THE MISSION OF
AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER OF EMPLOYEES;
AND THE NUMBERS, TYPES, AND
GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
WORK PROJECT OR TOUR OF
DUTY . . .
/10/ THE AUTHORITY'S DECISION HEREIN IS LIMITED TO THE QUESTION OF
WHETHER THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
PROVIDES A BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF
THE RULES OF PROCEDURE. AS TO THE QUESTION OF THE NEGOTIABILITY
DETERMINATION WAS MADE UNDER THE PROVISIONS OF E.O. 11491, AS AMENDED,
AND THAT NEITHER THE UNION NOR THE AGENCY HAS APPARENTLY CONSIDERED THE
APPLICABILITY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
TO THE DISPUTED PROVISIONS IN THIS CASE. QUESTIONS AS TO THE
NEGOTIABILITY OF THOSE PROVISIONS UNDER THE STATUTE MAY, IF NECESSARY,
BE RAISED IN ACCORDANCE WITH THE REGULATIONS OF THE FEDERAL LABOR
RELATIONS AUTHORITY FOR RESOLVING NEGOTIABILITY DISPUTES.
/11/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.