American Federation of Government Employees, Local 1210 (Union) and Immigration and Naturalization Service (Agency)

 8 FLRA No. 17
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1210
 Union
 
 and
 
 IMMIGRATION AND
 NATURALIZATION SERVICE
 Agency
 
                                            Case No. 0-AR-114
 
                                 DECISION
 
    THIS CASE IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR P.M. WILLIAMS FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A))
 (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR PART 2425).  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY DECIDED TO MAKE CHANGES IN THE SUPERVISION AND
 ASSIGNMENTS OF EMPLOYEES AT CERTAIN DUTY STATIONS.  THE UNION FILED A
 GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION CLAIMING THAT
 MANAGEMENT VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY THE
 MANNER IN WHICH THE CHANGES WERE IMPLEMENTED.  THE UNION CONTENDED IN
 PART BEFORE THE ARBITRATOR THAT ARTICLE 3.G.  /1/ OF THE PARTIES'
 AGREEMENT HAD BEEN VIOLATED AS A RESULT OF THE ACTIVITY'S REFUSAL TO
 NEGOTIATE OVER THE IMPACT OF THE CHANGES ON EMPLOYEES.  AS A REMEDY, THE
 UNION REQUESTED THAT THE ARBITRATOR ORDER THE ACTIVITY "TO RESTORE THE
 WORK SITUATION AS IT EXISTED PRIOR TO THE FILING OF THE CASE AND THAT
 THE SERVICE BE ORDERED TO ENTER INTO FORMAL NEGOTIATIONS WITH IT
 CONCERNING THE CHANGE."
 
    IN AGREEMENT WITH THE UNION THE ARBITRATOR RULED THAT THE ACTIVITY
 HAD VIOLATED ARTICLE 3.G. BY REFUSING TO NEGOTIATE ON THE IMPACT OF THE
 CHANGES AND FOUND AS FOLLOWS:
 
    THE UNDERSIGNED BELIEVES THAT THE UNION'S REQUEST FOR NEGOTIATIONS
 WAS PROPER UNDER THESE
 
    CIRCUMSTANCES.  HE FINDS THAT THE SERVICE SHOULD SCHEDULE A MEETING
 WHERE NEGOTIATIONS CAN
 
    TAKE PLACE IN ACCORDANCE WITH THE PLAIN LANGUAGE OF THE AGREEMENT.
 HE DOES NOT BELIEVE,
 
    HOWEVER, THAT THE SERVICE IS OBLIGATED TO RESCIND THE ROTATIONAL
 CHANGE ORDERS PENDING THOSE
 
    NEGOTIATIONS.  HE IS OF THE OPINION THAT ARTICLE 3(G) DOES NOT
 REQUIRE THAT DECISIONS RELATING
 
    TO CHANGES IMPACTING ON EMPLOYEES MUST BE SUBJECT TO NEGOTIATIONS
 BEFORE A CHANGE IS
 
    MADE.  RATHER, HE FINDS THAT THE ARTICLE REQUIRES ONLY THAT
 NEGOTIATIONS BE HAD ON THE SUBJECT
 
    MATTER IF AND WHEN A REQUEST IS MADE BY EITHER PARTY.
 
    ON THIS BASIS HE MADE THE FOLLOWING AWARD:
 
    THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT REQUIRE THAT IF A
 REQUEST IS MADE BY THE
 
    UNION, THE SERVICE MUST NEGOTIATE ON CHANGES SUCH AS OCCURRED ON
 DECEMBER 16, 1979, AT EL
 
    PASO.  THE GRIEVANCE OF THE UNION IS SUSTAINED IN PART AND DENIED IN
 PART IN ACCORDANCE WITH
 
    THE OPINION EXPRESSED ABOVE.
 
    IN ITS EXCEPTION, THE UNION ALLEGES THE ARBITRATOR'S AWARD IS
 CONTRARY TO THE STATUTE BECAUSE IT IS INCONSISTENT WITH THE DUTY TO
 BARGAIN AS SET FORTH IN SECTIONS 7114 AND 7117.  IN PARTICULAR, THE
 UNION ARGUES THAT IN THE CIRCUMSTANCES OF THIS CASE THE ARBITRATOR WAS
 COMPELLED BY THE STATUTE TO DECIDE THAT THE ACTIVITY'S CHANGES COULD NOT
 PROPERLY HAVE BEEN IMPLEMENTED UNTIL NEGOTIATIONS HAD TAKEN PLACE.
 HOWEVER, THE UNION'S EXCEPTION DOES NOT ESTABLISH THAT THE AWARD IS IN
 ANY MANNER CONTRARY TO THE STATUTE.
 
    AS NOTED, THE ARBITRATOR IN RESPONSE TO THE UNION'S CONTENTIONS
 ADDRESSED THE GRIEVANCE IN TERMS OF WHETHER THE ACTIVITY HAD VIOLATED
 THE PARTIES' AGREEMENT.  ALTHOUGH HE FOUND THAT THE ACTIVITY'S ACTIONS
 VIOLATED ARTICLE 3.G. AND ORDERED THE ACTIVITY TO NEGOTIATE ON REQUEST,
 HE DETERMINED THAT THERE WAS NO REQUIREMENT UNDER THE AGREEMENT FOR THE
 ACTIVITY TO NEGOTIATE ON THE IMPACT OF CHANGES BEFORE THOSE CHANGES ARE
 MADE.  CONSEQUENTLY, HE DID NOT GRANT THE UNION'S REQUEST TO ORDER THAT
 THE WORK SITUATION AS IT EXISTED BEFORE THE CHANGES BE RESTORED.  THE
 ARBITRATOR'S AWARD DOES NOT ADDRESS WHAT OBLIGATIONS THE ACTIVITY MAY
 HAVE HAD UNDER THE STATUTE, BUT RATHER IS RESTRICTED SOLELY TO THE
 ARBITRATOR'S AWARD DOES NOT ADDRESS WHAT OBLIGATIONS THE ACTIVITY MAY
 HAVE HAD UNDER THE STATUTE, BUT RATHER IS RESTRICTED SOLELY TO THE
 INTERPRETATION AND APPLICATION OF THE AGREEMENT AND TO THE FASHIONING OF
 A REMEDY FOR ITS VIOLATION.  /2/ THE UNION HAS FAILED TO DEMONSTRATE
 THAT THE STATUTE COMPELLED THE ARBITRATOR TO ADOPT THE INTERPRETATION OF
 THE AGREEMENT ASSERTED BY THE UNION AND TO ADOPT THE REQUESTED REMEDY.
 THUS, THE UNION'S EXCEPTION CONSTITUTES NOTHING MORE THAN DISAGREEMENT
 WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE AGREEMENT.
 IT IS WELL ESTABLISHED THAT THIS PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT AND ACCORDINGLY THE UNION'S EXCEPTION IS DENIED.  E.G.,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO) LOCAL 1770 AND
 HEADQUARTERS XVIII AIRBORNE CORPS AND FORT BRAGG, FORT BRAGG, N.D., 6
 FLRA NO. 62(1981).
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ARTICLE 3.G. OF THE AGREEMENT PERTINENTLY PROVIDES:
 
    G.  THE PARTIES RECOGNIZE THAT FROM TIME TO TIME DURING THE LIFE OF
 THE AGREEMENT, THE NEED
 
    WILL ARISE FOR MANAGEMENT TO CHANGE EXISTING SERVICE REGULATIONS
 COVERING PERSONNEL POLICIES,
 
    PRACTICES, AND/OR WORKING CONDITIONS NOT COVERED BY THIS AGREEMENT.
 THE SERVICE SHALL PRESENT
 
    THE CHANGES IT WISHES TO MAKE TO EXISTING RULES, REGULATIONS, AND
 EXISTING PRACTICES TO THE
 
    UNION IN WRITING . . .  THE UNION WILL PRESENT ITS VIEWS (WHICH MUST
 BE RESPONSIVE TO EITHER
 
    THE PROPOSED CHANGE OR THE IMPACT OF THE PROPOSED CHANGE) WITHIN A
 SET TIME AFTER RECEIVING
 
    NOTICE FROM MANAGEMENT OF THE PROPOSED CHANGE . . .
 
    IF DISAGREEMENT EXISTS, EITHER THE SERVICE OR THE UNION MAY SERVE
 NOTICE ON THE OTHER OF
 
    ITS INTEREST TO ENTER INTO FORMAL NEGOTIATIONS ON THE SUBJECT MATTER
 . . .
 
    /2/ IN THIS RESPECT THE AUTHORITY RECOGNIZES THAT, IN CERTAIN CASES
 RESOLVING UNFAIR LABOR PRACTICE VIOLATIONS FOR FAILURE TO NEGOTIATE
 IMPACT AND IMPLEMENTATION, IT HAS ORDERED A STATUS QUO ANTE REMEDY WHEN,
 AMONG OTHER FACTORS, IT HAS NOT BEEN DEMONSTRATED THAT SUCH A REMEDY
 WOULD BE SERIOUSLY DISRUPTIVE OF AGENCY OPERATIONS.  E.G., SAN ANTONIO
 AIR LOGISTICS CENTER (AFLC) KELLY AIR FORCE BASE, TEXAS AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, 5 FLRA NO.
 22(1981), WHEREIN THE AUTHORITY NOTED THAT IT IS EMPOWERED UNDER 5
 U.S.C. 7105(G)(3) TO "REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE
 AND DESIST FROM VIOLATIONS OF THIS CHAPTER AND REQUIRE IT TO TAKE ANY
 REMEDIAL ACTION IT CONSIDERS APPROPRIATE TO CARRY OUT THE POLICIES OF
 THIS CHAPTER." HOWEVER, IN THIS CASE THE UNION DID NOT FILE AN UNFAIR
 LABOR PRACTICE CHARGE CLAIMING THAT THE ACTIVITY VIOLATED SECTION
 7116(A) OF THE STATUTE.  INSTEAD, THE UNION FILED A GRIEVANCE CLAIMING
 THAT THE ACTIVITY HAD VIOLATED THE PARTIES' AGREEMENT AND, AS HAS BEEN
 EMPHASIZED, THE ONLY MATTERS ADDRESSED BY THE ARBITRATOR CONCERNED THE
 INTERPRETATION AND APPLICATION OF THAT AGREEMENT AND, AFTER FINDING A
 VIOLATION, THE FASHIONING OF A REMEDY IN ACCORDANCE WITH THE AGREEMENT
 FOR THAT VIOLATION.