15:0347(74)AR - Louis A. Johnson V.A. Medical Center, Clarksburg, WV and AFGE Local 2384 -- 1984 FLRAdec AR

[ v15 p347 ]
The decision of the Authority follows:

 15 FLRA No. 74
                                            Case No. O-AR-555
    This matter is before the Authority on an exception to the award of
 Arbitrator Dennis R. Nolan filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The dispute in this matter concerns the adoption by the Activity of
 new criteria governing the eligibility for incentive awards.  The Union
 filed a grievance that was submitted to arbitration claiming that the
 Activity violated provisions of the master and local collective
 bargaining agreements by failing to negotiate with the Union before
 modifying the criteria for the awards.  Thus, the Arbitrator framed the
 issues as follows:  "A. Is the dispute arbitrable?  B. If the dispute is
 arbitrable, did the Employer violate the collective bargaining agreement
 by adopting new criteria governing eligibility for incentive awards
 without bargaining with the Union?  If so, what shall the remedy be?"
 After determining the dispute to be arbitrable, the Arbitrator
 determined that the new criteria had been adopted without notification
 to or bargaining with the Union.  After considering the relevant
 provisions of the master and local agreements, /1/ as well as the
 Statute, the FPM and an FPM Bulletin, the Arbitrator determined that the
 adoption and modification of policies governing the incentive awards
 program are negotiable matters.  Consequently, the Arbitrator ruled that
 the Activity had violated its obligations under the master and local
 agreements and ordered as follows:
          The grievance is sustained insofar as it alleges that the
       Employer adopted new criteria governing incentive awards in August
       1982 without notifying or bargaining with the Union.
          The Employer is ordered to give reasonable notice to the Union
       if it proposes to use any criteria governing incentive awards
       other than those applied prior to August 1982, or if it proposes
       to modify those criteria.
          The Employer is further ordered, upon request by the Union, to
       bargain with the Union in good faith concerning any modification
       or substitution of criteria governing incentive awards.
    In its exception the Agency contends that the award is contrary to
 the Statute.  Specifically, the Agency maintains on the basis of
 Interpretation and Guidance, 11 FLRA No. 107 (1983), that the award is
 contrary to section 7105(a)(2)(E) of the Statute which provides:  "The
 Authority shall, to the extent provided in this chapter and in
 accordance with regulations prescribed by the Authority-- resolve issues
 relating to the duty to bargain in good faith under section 7117(c) of
 this title(.)" The Authority in the Interpretation and Guidance
 addressed the question of whether the Federal Service Impasses Panel has
 the authority to resolve questions concerning the obligation to bargain
 which arise after the Panel has asserted jurisdiction over an impasse in
 negotiations pursuant to section 7119 of the Statute.  The Authority
 concluded that section 7119 does not authorize the Panel to resolve
 issues as to whether there is an obligation to bargain.  Rather, section
 7105(a)(2)(E) requires that the Authority resolve such issues.  The
 Agency's position in support of this exception is essentially that
 because the Authority concluded that the Panel was precluded by the
 Statute from resolving issues concerning the obligation to bargain, the
 Arbitrator was likewise precluded from resolving whether the criteria
 governing incentive awards are within the duty to bargain.
    The Authority concludes with respect to this contention of the Agency
 that the award is not contrary to section 7105(a)(2)(E) of the Statute.
 In the Interpretation and Guidance upon which the Agency relies the
 Authority said, in pertinent part:
          Specific provisions of the Statute provide for the resolution
       by the Authority of disputes relating to the parties' obligation
       to bargain.  Thus, section 7105(a)(2)(E) of the Statute makes it
       clear that the Authority is required to resolve issues relating to
       the duty to bargain in good faith under section 7117(c) which
       specifically contemplates an appeal "to the Authority." In order
       to implement this statutory imperative, Part 2424 of the
       Authority's Rules and Regulations sets forth the procedures for
       union appeals to the Authority from agency allegations that the
       duty to bargain in good faith does not extend to matters proposed
       to be bargained.  Therefore, it is clear that, based on the plain
       language of the Statute as implemented in the Authority's Rules
       and Regulations, negotiability issues which arise during the
       collective bargaining process must be resolved through appeal to
       the Authority.  (Footnote omitted.)
    Clearly, therefore, negotiability disputes which arise between an
 agency and an exclusive representative under section 7117(c)(1) /2/ must
 be resolved by the Authority as required by section 7105(a)(2)(E).  /3/
 Consequently, such disputes may not be resolved by an arbitrator in the
 guise of a grievance under the negotiated grievance procedure contained
 in the collective bargaining agreement between the exclusive
 representative and the agency.
    Of course, disputes relating to the meaning and application of
 provisions of the parties' collective bargaining agreement, including
 provisions therein dealing with the obligation to bargain, are subject
 to resolution under the negotiated grievance procedure and a
 negotiability appeal is not the proper forum in which to resolve such
 disputes.  See, e.g., National Federation of Federal Employees, Local
 1430 and Department of the Navy, Northern Division, U.S. Naval Base,
 Philadelphia, Pennsylvania, 9 FLRA 1086, 1087 (1982);  American
 Federation of Government Employees, AFL-CIO, Local 1931 and Department
 of the Navy, Naval Weapons Station, Concord, California, 2 FLRA 182, 183
 (1979).  Therefore, the dispute concerning the meaning and application
 of the collective bargaining agreement in this case was raised under the
 negotiated grievance procedure and the parties quite properly did not
 submit the matter to the Authority under the negotiability appeals
    Further, nothing prevents an arbitrator from considering the meaning
 and applicability of relevant Federal law and regulations when resolving
 a grievance under the negotiated grievance procedure.  Indeed, where
 exceptions to an arbitration award are filed with the Authority, section
 7122 authorizes the Authority to take such action as it considers
 necessary with respect to an arbitration award which it finds deficient
 because the award is contrary to any law, rule or regulation.  To avoid