30:0381(48)AR - SSA and AFGE, SSA General Committee -- 1987 FLRAdec AR

[ v30 p381 ]
The decision of the Authority follows:

 30 FLRA NO. 48
 30 FLRA 381

 30 NOV 1987






Case No. 0-AR-1427


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Charles Feigenbaum filed by both the Agency
and the Union under section 7122(a) of the Federal Service Labor
- Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. For the reasons discussed
below, we deny the exceptions.

     II. Background

     A. The Grievance

     A union-filed grievance was submitted to arbitration with
the parties unable to agree on the issues. In absence of
agreement by the parties, the Arbitrator stated the issues as

     1. Did the Union fail to pursue its grievance in a timely
and diligent manner, thus rendering it stale and consequently

     2. Did the Agency violate the contract by implementing OPM
regulations related to medical situations affecting employment?

     B. Facts as Found By the Arbitrator

     The Agency informed the Union in March 1984--during the term
of the parties' 1982 collective bargaining agreement--that it
proposed to implement OPM revisions to 5 C.F.R. part 339 
(Medical Determinations Related to Employability) despite some
differences between the regulations and Article 32 of the
collective bargaining agreement. The Agency stated that where
there were conflicts, the collective bargaining agreement would
prevail. The Union requested the Agency to identify the
regulatory changes which were not in conflict with the collective
bargaining agreement in order that the Union could formulate
bargaining proposals concerning the impact and implementation of
these changes. The Agency responded that it had no such
obligation. In the Agency's view, it was the Union's
responsibility to identify the parts of the regulations which did
not conflict with the agreement and to submit specific proposals
relating to those portions of the regulations. When the Union did
not provide specific proposals, the Agency notified the Union
that the regulations which were consistent with the parties'
agreement had been implemented on August 24, 1984.

     The 1982 collective bargaining agreement would have expired
on June 10, 1985. Prior to the expiration date, the parties
agreed to continue all of its terms with no changes for 3 years.
This agreement was subsequently incorporated into a memorandum of
understanding. Despite this extension, the Agency notified the
Union in May 1985 that the portions of 5 C.F.R. part 339 that
were not implemented in 1984 (because they conflicted with the
collective bargaining agreement) would become effective and
enforceable on June 11, 1985.

     The Union's grievance was filed on September 25, 1984. On
November 20, 1984, the Union notified the Agency that it was
invoking arbitration on the grievance. The parties received a
list from which to select an arbitrator from the Federal
Mediation Conciliation Service in January 1985. The arbitration
hearing was held on October 7 through 9 and December 16 through
18, 1986.

     III. The Arbitrator's Award

     On the first issue the Arbitrator ruled that the grievance
was arbitrable. He found that the delay in scheduling arbitration
by the Union was not prejudicial to the Agency. He stated that he
was not convinced that the delay was unreasonable or

     On the merits, the Arbitrator ruled that the Agency had
violated the Statute and the parties' collective bargaining
agreement when it implemented the regulations which were not
inconsistent with the collective bargaining agreement on August
24, 1984. The Arbitrator determined that the Agency had
failed to discharge its bargaining obligation under the parties'
agreement by refusing to identify those portions of the
regulations which in the Agency's view were not inconsistent with
the parties' collective bargaining agreement. He found that this
violation denied the Union an adequate opportunity to engage in
impact and implementation bargaining concerning the application
of 5 C.F.R. part 339. Accordingly, as a remedy, he directed the
Agency to identify in writing those portions of the revised 5
C.F.R. part 339 which it viewed as not being inconsistent with
the parties' 1982 collective bargaining agreement. He ordered
that the Agency provide this information to the Union so that the
Union may decide whether to exercise its rights under the
agreement to "bargain on impact and implementation as of the
status quo ante." Award at 42. In view of this award, the
Arbitrator considered it inappropriate to consider the specifics
of the regulations in relation to the parties' agreement.

     With respect to the events of 1985, the Arbitrator ruled
that neither the parties' 1982 collective bargaining agreement
nor the memorandum of understanding continuing the agreement for
another 3-year period prevented the Agency from implementing the
remaining provisions of 5 C.F.R. part 339. In addition, the
Arbitrator ruled that the Agency had given the Union adequate
notice of its actions and had otherwise met its bargaining

     IV. Agency Exception

     A. Contentions

     The Agency contends that the award, as it pertains to the
1984 implementation, is deficient because it is so ambiguous on
the issue of the conflict between the revised 5 C.F.R. part 339
and the parties' collective bargaining agreement that
implementation is impossible. The Agency argues that the parties
requested the Arbitrator to determine which, if any, regulatory
provisions were inconsistent with the parties' 1982 agreement,
but that the Arbitrator failed to do so. Consequently, the Agency
maintains that it is unable to comply with the award because it
is unable to determine which provisions of the regulations
conflict with the agreement.

     B. Analysis and Conclusions

     We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth
in section 7122(a) of the Statute:] specifically that the
award is contrary to any law, rule, or regulation or that the
award is deficient on other grounds similar to those applied by
Federal courts in private sector labor relations cases. See, for
example, Delaware National Guard, Wilmington, Delaware and
Association of Civilian Technicians, Delaware Chapter, 5 FLRA  50
(1981) (The Authority denied an exception contending that the
award was ambiguous because a question remained as to the meaning
of the award and was incomplete and ambiguous because the initial
dispute remained unsettled. The Authority found that the
exception provided no basis for finding the award deficient
because the award was not unclear in its meaning and effect so as
to make implementation of the award impossible and because the
arbitrator had completely and unambiguously resolved precisely
the issue in dispute.).

     V. Union Exceptions

     A. Contentions

     The Union contends that the award, as it pertains to the
1985 implementation: (1) fails to draw its essence from and
contravenes agreements of the parties; (2) is ba