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18:0710(81)AR - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE, Council of Locals, No. 214 -- 1985 FLRAdec AR

[ v18 p710 ]
The decision of the Authority follows:

 18 FLRA No. 81
                                            Case No. 0-AR-952
    This matter is before the Authority on exceptions to the interest
 arbitration award of Arbitrator Jerome H. Ross 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
 Union filed opposition.
    The dispute before the Arbitrator concerned the impasse which arose
 during the parties' negotiation of a new Master Labor Agreement.  The
 Federal Service Impasses Panel directed that the impasse be referred to
 mediation-arbitration for resolution.  Negotiations under the
 Arbitrator's direction produced agreement on all issues except a Union
 proposal that 100 percent official time be authorized for certain Union
 representatives.  Before the Arbitrator, the Agency contended, as it had
 earlier, that a proposal authorizing 100 percent official time for Union
 representatives would interfere with management's right under section
 7106(b)(1) of the Statute to determine the number of employees assigned
 to an organizational subdivision or tour of duty and therefore was not
 within the duty to bargain.  /1/ Nevertheless, the Arbitrator determined
 that allowing full-time Union representatives is the "more reasonable
 approach to official time." Accordingly, as his award, he directed that
 the parties' agreement include the following provision:
    Full Time Representatives
          In addition to representatives authorized official time
       provided above, the Union is hereby authorized the following
       numbers of representatives with 100 percent official time:
          (a) 2 100% representatives at Warner Robins AFB, Kelly AFB,
       Tinker AFB, Hill AFB, and McClelland AFB.
          (b) 1 100% representative at Newark Air Station and
       Wright-Patterson AFB.
          (c) 1/2 100% representative at Battle Creek, Michigan.
    In one of its exceptions, the Agency contends that the award is
 contrary to the Statute.  Specifically, the Agency maintains on the
 basis of Interpretation and Guidance, 11 FLRA 626 (1983), that the
 Arbitrator resolved an issue relating to the duty to bargain which under
 section 7105(a)(2)(E) of the Statute /2/ must be resolved only by the
 Authority.  The Authority agrees.
    The Authority in Interpretation and Guidance, 11 FLRA 626 (1983),
 held that section 7119 of the Statute does not authorize the Federal
 Service Impasses Panel to resolve issues as to whether there is an
 obligation to bargain under the Statute.  Correspondingly, an interest
 arbitrator acting pursuant to a direction of the Panel is likewise
 without authority to resolve such issues.  Interpretation and Guidance,
 16 FLRA No. 75, slip op. at 2 n.2 (1984).  Rather, negotiability
 disputes which arise between an agency and an exclusive representative
 under section 7117(c)(1) must be resolved only by the Authority as
 required by section 7105(a)(2)(E).  Louis A. Johnson Veterans
 Administration Medical Center, Clarksburg, West Virginia and American
 Federation of Government Employees, Local 2384, 15 FLRA No. 74, slip op.
 at 2-4 (1984).  In terms of this case, by deciding that the parties'
 agreement should contain a provision authorizing 100 percent official
 time for Union representatives, despite the Agency's allegation that the
 matter was negotiable only at the election of the Agency, the Arbitrator
 necessarily determined that the Agency had an obligation under the
 Statute to bargain over the Union's proposal.  However, the Agency's
 allegation that the proposal was not negotiable by reason of section
 7106(b)(1) of the Statute presents an issue relating to the duty to
 bargain in good faith under the Statute and may be resolved only by an
 appeal to the Authority as set forth in section 7117(c).  Accordingly,
 the Arbitrator's award by resolving that negotiability issue is contrary
 to section 7105(a)(2)(E) of the Statute and is set aside.  /3/ Issued,
 Washington, D.C., June 21, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency had first alleged that such a proposal was not within
 the duty to bargain during negotiations for the new agreement after
 which, but prior to the referral in this case to arbitration, the Union
 filed a petition for review of a negotiability issue which is currently
 pending before the Authority as Case No. 0-NG-1002.
    /2/ Section 7105(a)(2)(E) provides:
          (a)(2) The Authority shall, to the extent provided in this
       chapter and in accordance with regulations prescribed by the
                                  * * * *
          (E) resolve issues relating to the duty to bargain in good
       faith under section 7117(c) of this title(.)
    /3/ In view of this decision, it is unnecessary to address the other
 exceptions to the award.  In addition, in determining that the
 Arbitrator was without authority to decide the negotiability issue in
 this matter, the Authority makes no determination on whether the Union's
 proposal interferes with management's right to determine the number of
 employees assigned to an organizational subdivision or tour of duty and
 is therefore subject to bargaining only at the election of the Agency.
 Rather, that issue will be properly resolved in the pending
 negotiability case.