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The decision of the Authority follows:
28 FLRA NO. 72
UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE, MIDWEST REGION Agency and NATIONAL TREASURY EMPLOYEES UNION Union Case No. 0-AR-1292
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Robert G. Howlett filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The National Treasury Employees Union requested the assistance of the Federal Service Impasses Panel (the Panel) in a bargaining impasse with the Agency. The Panel recommended that the dispute be referred to Mr. Robert G. Howlett, who is also a Member of the Panel, for mediation-arbitration.
Mr. Howlett was authorized by the Panel to mediate with respect to all issues and to render a decision as an arbitrator on any that remained unresolved. During the course of mediation, the parties reached agreement on several issues. However, the dispute persisted as to a number of other issues, which Mr. Howlett resolved through arbitration.
In his award, the Arbitrator directed the parties to include in their collective bargaining agreement a number of provisions. The Agency excepts to four of the provisions. 1
III. First Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision under the agreement article entitled, "Actions for Unacceptable Performance":
Probationary employees shall be covered by this article consistent with applicable law.
The Agency contends that the disputed provision is inconsistent with law and regulation. Relying on the court's decision in Department of Justice, Immigration and Naturalization Service v. FLRA, 799 F.2d 724 (D.C. Cir. 1983) (DOJ/INS), the Agency argues that law and regulation governing performance-based actions make it clear that neither Congress nor the Office of Personnel Management (OPM) intended that the procedural requirements of 5 U.S.C. 4303 or Part 432 of OPM's regulations were to be applicable when removing a probationary employee because of unacceptable performance.
C. Analysis and Conclusion
We find that the Agency has misconstrued this part of the Arbitrator's award and has failed to establish that it is deficient as alleged. The Arbitrator recognized that the removal of a probationary employee is excluded from coverage of negotiated grievance procedures. He expressly held that under the disputed provision, probationers would be covered only insofar as law allows. We conclude that the provision is not contrary to law because by its terms it is circumscribed by law.
In our view, the award does not provide that probationers may grieve performance-based actions. Further, nothing in this decision should be construed as an explicit or implicit finding that there are any performance-based actions which would be covered by this provision. Rather, this exception must be denied solely because the provision, as written, is not deficient on any grounds set forth in section 7122 of the Statute.
IV. Second Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision in the agreement article entitled, "Grievance Procedure":
The grievance procedure established by this Section shall be the exclusive procedure for resolving all grievances except that the procedures do not cover: . . . (9) termination of a probationary employee unless the product of alleged unlawful discrimination. (Only the underlined language is disputed.)
The Agency contends that the Arbitrator was barred from ordering the disputed language included in the agreement because the Union had filed a negotiability appeal concerning the identical language during the course of the impasse proceeding before the Panel and the case was still pending before the Authority when the Arbitrator rendered his award. Further, relying on the court's decision in DOJ/INS, the Agency argues that termination of a probationary employee is neither grievable nor arbitrable.
C. Analysis and Conclusion
We agree with the Agency that this part of the Arbitrator's award is deficient. First, the Authority has previously ruled that negotiability disputes which arise between an agency and a union under section 7117(c) of the Statute must be resolved by the Authority as required by section 7105(a)(2)(E); and that an interest arbitrator acting pursuant to the direction of the Panel is without authority to resolve such negotiability disputes. Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio and American Federation of Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1981).
In cases involving allegations of nonnegotiability made during an interest arbitration proceeding, we will carefully examine the record in the case, including the arbitrator's award, to determine whether the arbitrator made a negotiability ruling. If so, the award will be set aside. However, where the arbitrator has merely applied existing case law in resolving the impasse, we will resolve any exceptions to the award on the merits. The exceptions will be denied if the existing case law was correctly applied. Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL), American Federation of Government Employees, AFL - CIO (AFGE), 25 FLRA No. 17 (1987). In cases where the award is set aside because an interest arbitrator improperly asserted jurisdiction over and decided a duty to bargain question, the Authority may require the parties to return to the bargaining table "with a sincere resolve to reach agreement" so that the matter is not left unresolved. Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72, slip op. at 11 (1987).
In this case, we find that the Arbitrator resolved a negotiability dispute between the parties. Therefore, this part of the arbitrator's award is inconsistent with section 7105 (a) (2) (E) of the Statute and must be set aside.
However, no useful purpose would be served by directing the parties to return to the bargaining table because the matter has not been left unresolved. Subsequent to the Arbitrator's award, we issued a decision in the dispute referred to by the Agency, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (Proposal 6), slip op. at 10-12 (1987), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. April 15, 1987). In that decision, we found that the disputed language, which would subject the termination of probationary employees to the parties' negotiated grievance procedures whenever discrimination was alleged, was nonnegotiable as contrary to law and regulation.
V. Third Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision in the agreement article entitled, "Arbitration":
The grievant(s), representative and witnesses employed by FNS . . . found to be necessary by the Arbitrator, shall be allowed official time and travel and per diem relative to the proceedings when otherwise in duty status. (Only the underlined word is disputed.)
In its exception to this part of the Arbitrator's award, the Agency argues, as it did in its second exception, that the Arbitrator improperly decided a negotiability dispute between the parties. The Agency contends that the identical language was pending before the Authority as part of the same negotiability appeal filed by the Union during the impasse proceedings.
C. Analysis and Conclusion
As to this part of the award, we find that the Arbitrator did not resolve a negotiability dispute contrary to section 7105(a)(2)(E) of the Statute. Rather, upon careful examination of the record, we find that the Arbitrator merely applied existing Authority case law in resolving the impasse between the parties. United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District and Internal Revenue Service, Houston District, 23 FLRA No. 100 (1986); National Joint Council of Food Inspection Locals, AFGE, AFL - CIO and Food Safety and Inspection Service, U.S. Department of Agriculture, 23 FLRA No. 3 (1986); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. March 27, 1986).
We further find that the Arbitrator correctly applied the existing precedent. in our decision in the negotiability case referred to by the Agency, we found that language in dispute was within the duty to bargain. National Treasury Employees Union, 25 FLRA No. 90 (Proposal 2), slip op. at 2-5. Accordingly, this exception must be denied.
VI. Fourth Exception
A. Disputed Language
The Arbitrator directed inclusion of the following provision in the article entitled, "Duration and Termination": The parties will execute the terms and conditions of this contract, rendered pursuant to an arbitration award, no later than thirty days after the date of this award. Moreover, the parties will implement the terms and conditions of this contract no later than thirty days after its execution even if some provisions are challenged as illegal and/or disapproved. (Only the underlined language is disputed.)
The Agency contends that this part of the Arbitrator's award is deficient as contrary to the Statute. The Agency first argues that the disputed provision would require the Agency to implement provisions of the award which have been appealed to the Authority under section 7122(a) of the Statute. The Agency maintains that the disputed provisions cannot be incorporated into the agreement and made effective until such time as the Authority rules on the exceptions and finds that the provisions are not deficient.
The Agency also argues that this part of the award is contrary to section 7114(c)(1) of the Statute. The Agency maintains that the Arbitrator's award does not constitute the entire agreement between the parties and that the parties had reached agreement on substantial portions of a contract, which are subject to agency head review under section 7114(c)(1). The Agency asserts that this part of the Arbitrator's award would preclude agency head disapproval of portions of the agreement which are subject to section 7114(c)(1) review.
C. Analysis and Conclusion
We find that the Agency has misinterpreted this part of the Arbitrator's award and has failed to establish that it is deficient as alleged.
According to the Arbitrator, the disputed language was proposed by the Union. The Union argued in support of the proposal that merely because a portion of the parties' agreement might be challenged, implementation of other provisions should not be delayed. The Arbitrator noted that the Agency did not offer any counter proposal or discussion concerning the language proposed by the Union. He recognized the Agency's right under the Statute to challenge portions of the agreement. However, he determined that any such challenge should not prevent other provisions of the parties' agreement from being made effective. The Arbitrator there-fore ordered the inclusion of the proposed language in the parties' agreement.
Based on the foregoing, we find, contrary to the Agency's assertions that this part of the Arbitrator's award does not require the Agency to implement any provisions of his award which the Agency appealed to the Authority under section 7122(a) of the Statute while the exceptions are pending before the Authority. The award only provides for implementation of those portions of the agreement which have not been challenged under provisions of the Statute. We conclude that this part of the award is not deficient as alleged. Accordingly, the Agency's exceptions must be denied.
For the above reasons, the Agency's first, third and fourth exceptions are denied. The disputed provision which the Agency excepted to in its second exception is contrary to law and, therefore, that portion of the Arbitrator's award is set aside.
Issued, Washington, D.C., August 13, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 The Agency also expressed concern with the possible future effect of another part of the Arbitrator's award, which directed the parties to meet and bargain regarding the payment of travel and per diem expenses for union representatives and employees in various actions. However, the Agency expressly stated that it was not excepting to this part of the award and we find it unnecessary to address the Agency's essentially speculative concerns.