Department of the Air Force, Scott Air Force Base (Activity) and National Association of Government Employees, Local No. R7-23 (Union)

 4 FLRA No. 95
 
 DEPARTMENT OF THE AIR
 FORCE, SCOTT AIR FORCE BASE
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL NO. R7-23
 Union
 
                                            Case No. 0-AR-35
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR RAYMOND R. ROBERTS FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE DEPARTMENT OF THE AIR FORCE REVISED CERTAIN AIR FORCE REGULATIONS,
 WHICH IN PART DELETED A REQUIREMENT THAT BEFORE AN EMPLOYEE WAS ELIGIBLE
 FOR AN OUTSTANDING PERFORMANCE RATING, THE EMPLOYEE MUST HAVE BEEN UNDER
 THE SUPERVISION OF THE SUPERVISOR PERFORMING THE RATING AT LEAST NINETY
 CONSECUTIVE DAYS IMMEDIATELY PRIOR TO THE PERFORMANCE RATING DUE DATE.
 THE REVISED REGULATION REQUIRED ONLY THAT THE SUPERVISOR HAVE SUPERVISED
 THE EMPLOYEE FOR NINETY DAYS BEFORE THE RATING DUE DATE.  IN A SUMMARY
 OF CHANGES MADE IN THE REVISED REGULATION, IT WAS STATED THAT "(T)HE
 NECESSITY OF MAJOR COMMAND SUPPLEMENTATION HAS BEEN ELIMINATED . . .
 THUS PROVIDING FOR LOCAL NEGOTIATION OF VARIOUS ASPECTS OF THE PROGRAM."
 
    SUBSEQUENTLY, THE ACTIVITY PROPOSED A LOCAL SUPPLEMENT TO THE REVISED
 AIR FORCE REGULATION.  THE PROPOSED SUPPLEMENT WAS IN TWO PARTS, A
 NARRATIVE PART AND A LOGIC TABLE PART.  THE SUPPLEMENT WAS SUBMITTED
 THROUGH THE CHAIN OF COMMAND AND TO THE UNION.  ALL PARTIES APPROVED THE
 NARRATIVE PORTION BUT THE UNION WITHHELD APPROVAL OF THE LOGIC TABLE
 PORTION WHICH CONTINUED THE "NINETY CONSECUTIVE DAYS IMMEDIATELY PRIOR
 TO" REQUIREMENT FOR ELIGIBILITY FOR AN OUTSTANDING PERFORMANCE RATING.
 THE PARTIES AGREED TO CONTINUE NEGOTIATIONS OVER THE LOGIC TABLE PORTION
 OF THE SUPPLEMENT.  DURING THIS PERIOD, THE ACTIVITY CONTINUED TO APPLY
 THE "NINETY CONSECUTIVE DAYS IMMEDIATELY PRIOR TO" REQUIREMENT.
 
    CONSEQUENTLY, THE UNION FILED A GRIEVANCE WHICH ALLEGED THAT IN VIEW
 OF THE NEW REVISIONS TO THE REGULATIONS, MANAGEMENT HAD AN OBLIGATION
 PURSUANT TO THE PARTIES' COLLECTIVE BARGAINING AGREEMENT TO GIVE DUE
 REGARD TO THE UNION'S POSITION BEFORE CONTINUING ITS PRIOR PRACTICE OF
 IMPOSING THE "NINETY CONSECUTIVE DAYS IMMEDIATELY PRIOR TO" REQUIREMENT.
  THE UNION ALSO ARGUED THAT THE ACTIVITY HAD BREACHED AN AGREEMENT MADE
 IN AN EXCHANGE OF CORRESPONDENCE WITH THE UNION TO DISCONTINUE THE
 PRACTICE PENDING THE OUTCOME OF FUTURE NEGOTIATIONS ON THE REQUIREMENT.
 THE ACTIVITY REJECTED THE GRIEVANCE, AND ULTIMATELY IT WAS SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUE BEFORE HIS AS FOLLOWS:
 
    WHETHER OR NOT MANAGEMENT HAS VIOLATED THE COLLECTIVE BARGAINING
 AGREEMENT BY PROPOSING A
 
    SCOTT AFB SUPPLEMENT TO AF REGULATION 40-451, OR BY FOLLOWING A
 PRACTICE THAT AN EMPLOYEE MUST
 
    HAVE WORKED UNDER A SUPERVISOR FOR NINETY (90) CONSECUTIVE DAYS
 IMMEDIATELY PRIOR TO THE
 
    SUPERVISOR'S EVALUATION AND RECOMMENDATION IN ORDER TO BE ELIGIBLE
 FOR AN OUTSTANDING
 
    PERFORMANCE RATING?  IF SO, WHAT IS THE APPROPRIATE REMEDY?
 
    THE ARBITRATOR FOUND NO VIOLATION OF THE COLLECTIVE BARGAINING
 AGREEMENT.  HE FOUND THAT WHEN THE NEW AIR FORCE REGULATION CAME INTO
 EFFECT, IT ALLOWED THE PARTIES TO CHANGE LOCAL POLICIES THROUGH THE
 PROCEDURES OF ARTICLE III, SECTION 2 OF THE COLLECTIVE BARGAINING
 AGREEMENT, /1/ BUT THE REGULATION ITSELF DID NOT CHANGE THE POLICIES.
 THEREFORE HE REASONED THAT THE 90-DAY IMMEDIATELY PRIOR RULE, HAVING
 BEEN IN EFFECT WHEN THE PARTIES' AGREEMENT WAS NEGOTIATED, WOULD REMAIN
 IN EFFECT UNLESS CHANGED THROUGH THE PROCEDURES OUTLINED IN ARTICLE III,
 SECTION 2, AND THAT "MANAGEMENT'S REAL OBLIGATION WAS TO CONTINUE THE
 EXISTING PRACTICES UNTIL SUCH TIME AS THEY WERE CHANGED PURSUANT TO
 ARTICLE III, SECTION 2, PROCEDURES." IN THIS REGARD HE STATED THAT A
 CONTRACT VIOLATION MIGHT HAVE OCCURRED IF THE ACTIVITY HAD DONE WHAT THE
 UNION WISHED IT TO DO BY DISCONTINUING THE PRACTICE ABSENT THE
 COMPLETION OF THE NEGOTIATIONS ON A NEW OR CHANGED RULE.  HE ALSO FOUND
 THAT THE EXCHANGE CORRESPONDENCE BETWEEN THE UNION AND THE ACTIVITY WAS
 NOT A MUTUAL AGREEMENT TO DISCONTINUE THE EXISTING RULE OR PRACTICE.
 FOR THE FOREGOING REASONS, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR
 INCORRECTLY FRAMED THE ISSUE.  IN SUPPORT OF THIS EXCEPTION THE UNION
 ASSERTS THAT THE ISSUE, AS FRAMED BY THE ARBITRATOR, "DISTORTS THE
 ISSUE" AND PRESENTS IT IN A "BIASED CONTEXT THAT CAN ONLY BE DECIDED IN
 FAVOR OF THE (ACTIVITY)." THE UNION FURTHER ARGUES THAT THE ISSUE IS
 "WHETHER THE (REVISED) REGULATION IS GOVERNING AND CAN ONLY BE ALTERED
 BY AGREEMENT AND NEGOTIATION BETWEEN THE PARTIES."
 
    THE THRUST OF THE UNION'S FIRST EXCEPTION APPEARS TO BE THAT THE
 ARBITRATOR SOMEHOW EXCEEDED HIS AUTHORITY IN FORMULATING AND ADDRESSING
 THE ISSUE BEFORE HIM.  HOWEVER, THE UNION'S CONTENTIONS IN SUPPORT OF
 ITS EXCEPTION PROVIDE NO BASIS FOR FINDING THAT THE ARBITRATOR IN ANY
 MANNER EXCEEDED HIS AUTHORITY IN THIS CASE.  THUS THE UNION HAS NOT
 SHOWN THAT THE ARBITRATOR WAS RESTRICTED FROM FORMULATION OF THE ISSUE
 IN THE MANNER HE DID, SUCH AS THROUGH A JOINT SUBMISSION OF THE ISSUE TO
 HIM.  MOREOVER, IT IS NOTED THAT THE QUESTION OF "WHETHER THE REVISED
 REGULATION IS GOVERNING," ASSERTED BY THE UNION TO BE THE "ISSUE AS
 PRESENTED IN THE GRIEVANCE" WAS SPECIFICALLY ADDRESSED BY THE ARBITRATOR
 IN THE COURSE OF RESOLVING THE DISPUTE BEFORE HIM.  THEREFORE, THE
 UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT "(T)HE ARBITRATOR IS
 IN ERROR IN HIS REASONING THAT MANAGEMENT CAN CHANGE A REVISED
 REGULATION IF SUCH CHANGE IS A CONTINUATION OF THE POLICY OF THE
 PRECEEDING REGULATION."
 
    THE UNION'S SECOND EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
 ARBITRATOR'S REASONING AND CONCLUSION IN ARRIVING AT HIS AWARD.  THIS
 DOES NOT CONSTITUTE A BASIS FOR FINDING AN AWARD DEFICIENT.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO AND SOCIAL
 SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS AND OFFICES, 4 FLRA NO. 19
 (1980).  THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    IN ITS THIRD EXCEPTION THE UNION ASSERTS THE ARBITRATOR
 MISINTERPRETED THE PROVISIONS IN THE REVISED AIR FORCE REGULATION WHICH
 LEFT CERTAIN MATTERS TO "LOCAL DETERMINATION." THE UNION'S THIRD
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  THE UNION
 NEITHER ASSERTS NOR SUPPORTS A CONTENTION THAT THE AWARD IS CONTRARY TO
 THE CITED REGULATION, /3/ BUT INSTEAD MAKES THE SAME ARGUMENTS IT MADE
 BEFORE THE ARBITRATOR, ADVANCING ITS OWN INTERPRETATION OF THE
 REGULATION AND DISAGREEING WITH THE ARBITRATOR'S APPLICATION OF THAT
 REGULATION IN CONJUNCT'ON WITH HIS INTERPRETATION OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.  THUS, THE ESSENCE OF THE UNION'S THIRD
 EXCEPTION CONSTITUTES DISAGREEMENT WITH THE ARBITRATOR'S REASONING AND
 CONCLUSION IN ARRIVING AT HIS AWARD, WHICH AS PREVIOUSLY INDICATED DOES
 NOT PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS FOURTH EXCEPTION THE UNION CONTENDS THE EVIDENCE DOES NOT
 SUPPORT THE ARBITRATOR'S ASSUMPTION THAT THE UNION SHOULD HAVE BEEN
 AWARE OF THE ACTIVITY'S CONTINUATION OF THE 90-DAY IMMEDIATELY PRIOR
 POLICY.  IN ITS FIFTH EXCEPTION THE UNION ASSERTS THAT THE ARBITRATOR
 INCORRECTLY FOUND THE CORRESPONDENCE BETWEEN THE UNION AND THE ACTIVITY
 DID NOT CONSTITUTE A MUTUAL AGREEMENT TO DISCONTINUE THE 90-DAY
 IMMEDIATELY PRIOR POLICY.
 
    THE THRUST OF THE UNION'S FOURTH AND FIFTH EXCEPTIONS IN ITS
 DISAGREEMENT WITH THE ARBITRATOR'S FINDINGS OF FACT, WHICH DOES NOT
 CONSTITUTE A BASIS FOR REVIEW.  UNITED STATES ARMY MISSILE MATERIEL
 READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60 (1980).  IN ESSENCE, THE
 UNION IS ATTEMPTING TO RE-LITIGATE THE CASE PRESENTED TO THE ARBITRATOR.
  CONSEQUENTLY, THE UNION'S FOURTH AND FIFTH EXCEPTIONS PROVIDE NO BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    THE UNION'S SIXTH EXCEPTION CONTENDS THE ARBITRATOR SUPPORTS HIS
 AWARD BY HYPOTHECATING WHAT "COUNTER-GRIEVANCES" MIGHT BE FILED IF HE
 SUSTAINED THE GRIEVANCE.  THIS EXCEPTION, ON ITS FACE, PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C.  7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.  AGAIN, THE
 UNION IS DISAGREEING WITH THE ARBITRATOR'S REASONING IN ARRIVING AT HIS
 AWARD, WHICH AS PREVIOUSLY ESTABLISHED, DOES NOT CONSTITUTE A BASIS FOR
 FINDING AN AWARD DEFICIENT.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.3 OF THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE
 ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. RAYMOND J. MALLOY
 
    ASSISTANT GENERAL COUNSEL
 
    NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
 
    2139 WISCONSIN AVENUE, NW.
 
    WASHINGTON, D.C.
 
    MR. DON A. DRESSER, CHIEF
 
    LABOR RELATIONS DIVISION
 
    DIRECTORATE OF CIVILIAN PERSONNEL
 
    DEPARTMENT OF THE AIR FORCE
 
    WASHINGTON, D.C.  20330
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ACCORDING TO THE ARBITRATOR, ARTICLE III, SECTION 2 OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVIDES AS FOLLOWS:
 
    SECTION 2:  THIS ISSUANCE, CONTINUANCE, REVISION, OR CANCELLATION OF
 RULES AND REGULATIONS
 
    GOVERNING MATTERS NOT SPECIFICALLY COVERED BY THIS AGREEMENT ARE
 ACKNOWLEDGED FUNCTIONS OF THE
 
    EMPLOYER.  HOWEVER, IN ISSUING, REVISING, OR CANCELLING RULES AND
 REGULATIONS RELATING TO
 
    PERSONNEL POLICY, PROCEDURES, PRACTICES AND MATTERS OF WORKING
 CONDITIONS, THE EMPLOYER WILL
 
    GIVE DUE REGARD AND CONSIDERATION TO THE OBLIGATIONS IMPOSED BY THIS
 AGREEMENT AND THE
 
    PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.  THE EMPLOYER AGREES
 TO CONSULT OR NEGOTIATE
 
    WITH THE UNION BEFORE IMPLEMENTING ANY CHANGES OF THE RULES AND
 REGULATIONS CONTAINED IN THIS
 
    SECTION.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ THE AUTHORITY DOES NOT DECIDE WHETHER THE CITED AIR FORCE
 REGULATION CONSTITUTES A "RULE OR REGULATION" WITHIN THE MEANING OF
 SECTION 7122(A)(1) OF THE STATUTE.