[ v20 p385 ]
The decision of the Authority follows:
20 FLRA No. 40 THE COLUMBIA BASIN TRADES COUNCIL, GRAND COULEE, WASHINGTON Union and THE GRAND COULEE PROJECT OFFICE, BUREAU OF RECLAMATION, U.S.DEPARTMENT OF THE INTERIOR, GRAND COULEE, WASHINGTON Activity Case No. O-AR-672 DECISION This matter is before the Authority on exceptions to the award and supplemental award of Arbitrator William H. Dorsey filed by the Department of the Interior (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 oppositions to the exceptions and the Department of Energy filed a brief as an amicus curiae. The grievance arose when the Activity established a new position or classification of Plant Mechanic and informed the Union that it intended to transfer the work of a number of existing craft classifications of employees in the bargaining unit /1/ to the new position. By submission agreement, the parties submitted the following two issues to arbitration: /2/ Issue 1: Is the right of the Project to establish a new classification per se arbitrable? Issue 2: . . . In establishing its new classification of Plant Mechanic and in so notifying the Council of its express intentions concerning the above described transfer of work and elimination or non-utilization of the above described current classifications, has the Project violated any provision of the current contract of the parties . . . ? As to Issue 1, the Activity argued that the grievance was nonarbitrable because it involved classification and negotiability issues and the Arbitrator did not have authority to rule on such matters. Contrary to the Activity's arguments, however, the Arbitrator found that the dispute was not whether the Activity had a right to establish a new classification nor whether the Activity had an obligation to negotiate with the Union before it established the Plant Mechanic classification. The Arbitrator stated that the Activity clearly had a right to establish the classification without negotiating with the Union and noted that the Union had so conceded. The Arbitrator found that the crucial issue in the case was Issue 2, as set forth by the parties in their submission agreement, which, he concluded, was a grievable and arbitrable question concerning the application of the parties' agreement to the specific actions taken by the Activity. Accordingly, the Arbitrator ruled as to Issue 1: Answer to Issue 1: Because the right of the Project to establish a new classification, per se, is conceded by the Council, and because the crucial issue in this case (as framed in Issue 2, above) clearly concerns alleged improper actions on the part of the Project in the exercise of its admitted right to establish a new classification, Issue 1, above, is a moot question. . . . With regard to Issue 2, the Arbitrator determined that this case, like a previous dispute between the parties, /3/ was one in which the Activity in effect simply eliminated a number of craft classifications and their rates of pay, which had been negotiated by the parties and expressly set forth in their agreement, by establishing the new classification and then unilaterally transferring to it the work of the existing classifications. The Arbitrator further found, among other things, that in this case the bargained-for classifications in the parties' agreement were effectively eliminated by the Activity's unilateral action without any new or changed conditions that would warrant such action. Accordingly, with regard to Issue 2, i.e., whether the Activity had violated the parties' collective bargaining agreement, the Arbitrator ruled: Answer to Issue 2: YES, in establishing its new classification of Plant Mechanic and in so notifying the Council of its express intentions concerning the above-utilization of the above-described current classifications of Rigger, Machinist, Boilermaker and Pipefitter, and also, in part, the work of the existing classification of Operator General, the Project violated the express language of (the parties' agreements). As his award on the merits of the dispute, the Arbitrator directed the Activity to cease and desist from its efforts to transfer to the new Plant Mechanic positions all of the duties and personnel of the existing craft classifications involved in the case. The Arbitrator further directed the Activity to maintain each of those existing classifications, with their personnel and duties intact, until such time as the Union and the Activity mutually agree to the abolishment of the craft classifications and the transfer of personnel and duties to the Plant Mechanic classification. Subsequently, upon a request for clarification related to the Activity's filling of mechanic foreman positions, the Arbitrator issued a supplemental award. In that subsequent award, the Arbitrator found that the dispute initially before him involved the Plant Mechanic classification and all related foreman classifications, as reflected in the rates of pay he set for such positions in his initial award on the third issue presented by the parties; that the foreman classifications are in the bargaining unit represented by the Union; and that the Activity had violated the spirit and intent of his initial award by its post-award actions with respect to the foreman positions. Accordingly, the Arbitrator directed the Activity to cease and desist from its use of employees in the foreman classifications to supervise composite crews of employees in the existing craft classifications involved in the case until such time as the Union and the Activity mutually agree to the use of such classifications for that purpose. In its exceptions to the Arbitrator's initial award, the Agency first argues that the Arbitrator erred in concluding with regard to Issue 1 that the underlying issue in dispute in the case was arbitrable insofar as it did not involve a negotiability question. However, as indicated above, the underlying issue which the parties submitted for arbitration was whether the Activity had violated the parties' collective bargaining agreement by its actions related to the establishment of the new Plant Mechanic classification. The Authority therefore finds that the Agency has failed to establish how the Arbitrator erred in finding the submitted issue to be the crucial issue in the case rather than a negotiability issue as argued by the Agency. The Authority concludes that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions in resolving the dispute before him. It is well-established that such disagreement provides no basis for finding an award deficient under the Statute. See, e.g., Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee and American Federation of Government Employees, Local 2501, 13 FLRA 5(1983). In other exceptions, the Agency contends that the Arbitrator exceeded his authority by requiring management to negotiate with the Union on nonnegotiable subject matter and that the Arbitrator's award and supplemental award are contrary to the Statute. More specifically, in that latter regard, the Agency reiterates the argument made before the Arbitrator that the dispute concerns the classification of positions and asserts that by finding the matter arbitrable the award is contrary to section 7121(c)(5) of the Statute, which precludes grievances concerning the classification of any position that does not result in the reduction in grade or pay of an employee. The Agency further contends that the Arbitrator's initial award on the merits of the dispute and his supplemental award violate management's rights under section 7106(a) of the Statute. Upon careful consideration of the record in this case, the Authority concludes that the Agency has failed to establish that the Arbitrator's award and supplemental award are deficient as alleged. As noted above, the employees in the bargaining unit here involved have collective bargaining rights which have been expressly preserved and recognized by section 9(b) of the Prevailing Rate Systems Act of 1972 and section 704 of the Civil Service Reform Act of 1978 (CSRA). Section 704(a) of the CSRA provides: Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph. The legislative history of section 704 demonstrates that the provision was designed to preserve the scope of bargaining enjoyed by certain employees (principally employees of the Department of the Interior and Department of Energy) prior to enactment of the CSRA by authorizing those employees to continue to negotiate their terms and conditions of employment in accordance with prevailing practices in the private sector. /4/ Thus, section 704 clearly authorizes and requires agencies to negotiate on any terms and conditions of employment which were the subject of negotiations prior to August 19, 1972, without regard to inconsistent provisions of the Statue. /5/ In terms of this case, the Arbitrator found that the parties bargained, agreed upon, and expressly set forth in their collective bargaining agreement the craft line classifications affected by the Activity's actions. In that regard, the Union contends, and the Agency does not refute the contention, that the parties have negotiated over such matters since before 1972. /6/ Furthermore, with regard to the Arbitrator's supplemental award, the Arbitrator found that mechanic foremen are part of the unit represented by the Union and are also among the craft classifications which were the subject of the grievance. Thus, the terms and conditions of employment of the employees in the positions affected by the Activity's actions, which the Arbitrator found were embodied in the parties' agreement, were preserved and protected pursuant to section 704 of the CSRA. In these circumstances, it was impermissible for the Activity to unilaterally change those terms and conditions of employment, notwithstanding its purported reliance on management's rights under the Statute. Rather, collective bargaining is the appropriate means by which the Activity may obtain the assertedly necessary changes in any terms and conditions of employment set forth in the parties' agreement. The Authority therefore concludes that the Agency has failed to establish either that the Arbitrator exceeded his authority or that his initial award or supplemental award are contrary to the Statute as alleged. In its remaining exceptions, the Agency argues that the Arbitrator's initial award on the merits as well as his supplemental award are deficient because they are based on nonfacts and that the initial award is further deficient because it is based on speculation rather than evidence and because the Arbitrator disregarded the management rights provisions in the parties' agreement and misinterpreted other provisions of the agreement. However, the Authority concludes that the Agency's arguments constitute nothing more than disagreement with the Arbitrator's findings of fact, with his reasoning and conclusions based on the evidence before him, and with his interpretation and application of the parties' agreement. It is well established that such disagreement does not provide any basis for finding an award deficient. E.g., Federal Correctional Institution, Petersburg, Virginia, and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108(1983). Accordingly, since the Agency has failed to establish that the Arbitrator's award and supplemental award are deficient as alleged, the exceptions are denied. Issued, Washington, D.C., September 27, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The employees in the bargaining unit have collective bargaining rights which have been preserved and recognized by section 9(b) of the Prevailing Rate Systems Act of 1972, Pub. L. No. 92-932, 5 U.S.C. 5343 note, and section 704 of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 5 U.S.C. 5343 note, to negotiate wages and other terms and conditions of employment in accordance with prevailing rates and practices in the private sector. /2/ The parties submitted and the Arbitrator resolved a third question concerning the appropriate rate of pay for the new classification of Plant Mechanic. That aspect of the Arbitrator's award is not disputed by the Agency and is not before the Authority. /3/ Columbia Basin Trades Council and All of Its Constituent Unions, Spokane, Washington and The Grand Coulee Project Office, Bureau of Reclamation, U.S. Department of the Interior, Grand Coulee, Washington, 9 FLRA 164(1982). /4/ 124 Cong.Rec.H 8468-69 (daily ed. Aug. 11, 1978) (statement of Rep. Ford), reprinted in H.R. Subcomm. on Postal Personnel and Modernization of the Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print No. 7, 1979), at 857. /5/ H.R. Conf. Rep. No. 1717, 95th Cong., 2d Sess. 159(1978) reprinted in Legislative History, at 827. See The Grand Coulee Project Office, 9 FLRA at 167. See also International Brotherhood of Electrical Workers, Local 640 and U.S. Department of the Interior, Bureau of Reclamation, 18 FLRA No. 102(1985). /6/ The Union's contention was raised in its opposition to the Agency's exceptions to the Arbitrator's initial award. In a response, the Agency argues, among other things, that the opposition should not be considered by the Authority because it raises issues and arguments not raised before the Arbitrator. However, the Authority finds that the Union's contention was appropriately raised in a properly filed opposition to the Agency's exception alleging that the Arbitrator's award is contrary to law.