American Federation of Government Employees, Local 1164, AFL-CIO (Union) and The Social Security Administration (Agency) 

 6 FLRA No. 60
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL
 1164, AFL-CIO
 Union
 
 and
 
 THE SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. O-AR-109
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR IRWIN M. LIEBERMAN 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 UNION REQUESTED, PURSUANT TO A REOPENER PROVISION IN THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, THAT THE AGENCY'S BOSTON REGION (THE
 ACTIVITY) MEET AND CONFER ON A SERIES OF PROPOSALS WITH RESPECT TO
 CERTAIN MATTERS.  AFTER A PRELIMINARY MEETING, THE ACTIVITY REFUSED TO
 NEGOTIATE, MAINTAINING THAT THE UNION'S PROPOSALS WERE NOT WITHIN THE
 PURVIEW OF THE AGREEMENT.  CLAIMING THAT THIS REFUSAL VIOLATED THE
 AGREEMENT, THE UNION FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    TWO WEEKS AFTER FILING THE GRIEVANCE, LOCAL 1164 WAS REPLACED AS
 EXCLUSIVE REPRESENTATIVE PURSUANT TO A UNIT CONSOLIDATION.  THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE FOR A CONSOLIDATED NATIONWIDE UNIT WHICH INCLUDED THE
 BARGAINING UNIT REPRESENTED BY LOCAL 1164 AND COVERED BY THE AGREEMENT
 IN DISPUTE IN THIS CASE.  AT ARBITRATION THE ACTIVITY FILED A MOTION TO
 DISMISS THE GRIEVANCE ARGUING THAT IT WAS NOW MOOT AS A RESULT OF THE
 UNIT CONSOLIDATION.  BECAUSE OF THE MOTION, THE ARBITRATOR STATED HIS
 "SOLE CONCERN" TO BE "WHETHER INDEED THE ISSUE OF THE CONTRACTUAL RIGHT
 TO NEGOTIATE HAS BEEN MOOTED BY THE UNIT CONSOLIDATION." HE DETERMINED
 THE DISPOSITIVE ISSUE TO BE "WHETHER FOLLOWING THE CONSOLIDATION OF THE
 BARGAINING UNIT, A RELATIONSHIP EXISTS WHICH UNDER THE CONTRACT GAVE THE
 UNION THE RIGHT TO BARGAIN ON A MIDTERM BASIS." THE ARBITRATOR RULES
 THAT BARGAINING OVER THE UNION'S PROPOSALS WAS PRECLUDED ONCE THE
 UNION'S EXISTENCE AS THE EXCLUSIVE BARGAINING REPRESENTATIVE HAD BEEN
 TERMINATED BY THE UNIT CONSOLIDATION PROCESS.  CONSEQUENTLY, HE
 DETERMINED THAT THE UNION'S GRIEVANCE HAD BEEN MOOTED AND AS HIS AWARD
 DISMISSED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE UNION HAS FILED FIVE EXCEPTIONS TO THE AWARD.  THE SUBSTANCE OF
 EACH OF THESE EXCEPTIONS IS ESSENTIALLY IDENTICAL:  THAT LOCAL 1164 HAD
 A CONTINUING "RIGHT TO MIDTERM BARGAINING" AND THAT THE ACTIVITY HAD A
 CONTINUING "CONTRACTUAL OBLIGATION" TO BARGAIN, BOTH OF WHICH HAVE
 ASSERTEDLY BEEN IMPROPERLY DENIED BY THE ARBITRATOR'S AWARD.  HOWEVER,
 THE AUTHORITY ADDRESSED PRECISELY THIS QUESTION IN DEPARTMENT OF HEALTH
 AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION AND LOCAL 1346,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 6 FLRA NO.
 33(1981).  IN THAT CASE THE AUTHORITY WAS PRESENTED IN RESPECT TO THE
 SAME UNIT CONSOLIDATION WITH THE QUESTION OF WHETHER THERE IS A DUTY TO
 BARGAIN NEW TERMS AND CONDITIONS OF EMPLOYMENT AT THE LOCAL LEVEL
 PURSUANT TO A REOPENER CLAUSE CONTAINED IN A LOCAL AGREEMENT ONCE THERE
 HAS BEEN A CERTIFICATION OF A REPRESENTATIVE FOR A NATIONWIDE
 CONSOLIDATED UNIT.  THE AUTHORITY EXPRESSLY DETERMINED THAT THERE WAS NO
 SUCH DUTY AND THAT CONSEQUENTLY A REFUSAL TO BARGAIN BY MANAGEMENT IN
 SUCH CIRCUMSTANCES WAS NOT IMPROPER.
 
    BECAUSE THE ISSUE PRESENTED TO AND DECIDED BY THE ARBITRATOR BEARS NO
 MATERIAL DIFFERENCE FROM THE ISSUE DECIDED BY THE AUTHORITY IN AFGE
 LOCAL 1346 AND BECAUSE THE ARBITRATOR'S AWARD IS FULLY CONSISTENT WITH
 THAT DECISION OF THE AUTHORITY, FOR THE REASONS MORE FULLY SET FORTH IN
 AFGE LOCAL 1346, NONE OF THE UNION'S EXCEPTIONS PROVIDES A BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 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.