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30:1092(118)AR - DODDS and Overseas Education Association -- 1988 FLRAdec AR

[ v30 p1092 ]
The decision of the Authority follows:

 30 FLRA NO. 118
  30 FLRA 1092

   28 JAN 1988






Case No. O-AR-1349


I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Robert E. Mullin. The Arbitrator interpreted
the parties' collective bargaining agreement concerning the
bargaining obligations of the parties at the local, regional and
national levels. Exceptions to the award were 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. The Union filed an opposition. We conclude
that the Agency has not established that the Arbitrator's award
is contrary to law. Therefore, we deny the exceptions.

II. Background

     The Union filed a grievance concerning the Agency's alleged
misinterpretation of Article 7 of the parties' agreement. Article
7, entitled "Negotiations over Proposed Changes in Working
Conditions or Policies," identifies matters that are appropriate
for negotiation at the national and regional levels, matters that
are appropriate for discussion at the local level, and the manner
in which management-proposed changes may be implemented. The
Union argued that changes may not be implemented by the Agency
while bargaining proposals are outstanding until the 
proposals are either agreed upon or until the proposals are
submitted to the national level for resolution, for a
negotiability appeal, or for invocation of impasse proceedings.
The record in this case indicates that the national level is the
level of exclusive recognition between the parties.

III. Arbitrator's Award

     The Arbitrator first determined, contrary to the Agency's
assertion, that the Union had filed a "grievance" within the
meaning of section 7103(a)(9) of the Statute. He noted that the
definition of grievance includes any complaint by any labor
organization concerning the interpretation of a collective
bargaining agreement.

     As to the merits of the dispute the Arbitrator noted
testimony that in negotiating Article 7 of the collective
bargaining agreement, the Union sought to ensure its right to
negotiate before implementation of changes in conditions of
employment by management. Award at 9. The Arbitrator found that
Article 7 provides for negotiations at the national level, in
addition to negotiations at lower levels, and that only
representatives at the national level "formally" may declare an
impasse or a proposal nonnegotiable. Award at 11. He further
found that nothing in the record before him indicated that by
agreeing to Article 7, the Union waived its right to completed
negotiations before implementation of management-proposed
changes. Award at 11-12.

     The Arbitrator noted that management may implement a
particular change at its own risk. However, he concluded that
because of the limited experience of representatives of both the
Union and the Agency at the local and regional levels, the
parties agreed to forward negotiability disputes to the national
level for an attempt to resolve lower level differences. Award at

     The Arbitrator sustained the Union's grievance and set forth
the circumstances under which management at the various levels
could implement changes in personnel policies and practices or
other general conditions of employment. The Arbitrator further
determined that management at the local and regional levels could
not declare matters or proposals to be "nonnegotiable." Rather,
the Arbitrator concluded that only management at the national
level, the level of exclusive recognition, could make such

IV. Exceptions

     The Agency contends that the award is contrary to law. More
specifically, the Agency claims that the award would prevent
managers at the local and regional levels from declaring matters
nonnegotiable and would require them to hold proposed changes in
abeyance until the national level has made a declaration of
nonnegotiability. The Agency asserts that this result would
conflict with its right to implement changes in various
circumstances, specifically, when the Union submits nonnegotiable
proposals, when bargaining is limited to impact and
implementation and the Union has submitted only substantive
bargaining proposals, and when changes have only a "de minimis"
impact. In support of its position, the Agency noted a decision
of the Authority's Regional Director, subsequently upheld by the
General Counsel, in which the Regional Director determined that
no violation of the Statute had occurred when changes were
implemented at the school level and the regional level refused to
bargain over the Union's nonnegotiable proposals.

     The Agency also alleges that the award is inconsistent with
management's right to assign work under section 7106(a) of the
Statute. The Agency claims that by allegedly requiring officials
at various levels to perform the task of declaring matters to be
nonnegotiable and preventing officials at other levels from so
doing, the award interferes with management's right to assign

     The Union argues that: (1) the award does not conflict with
the Agency's rights as alleged; (2) the award does not violate
the Statute by requiring that allegations of nonnegotiability be
made only at the level of recognition; and (3) the Agency's
reliance on the General Counsel's dismissal of the unfair labor
practice charge is misplaced.

V. Analysis and Conclusions

     We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient. The Agency's arguments
constitute nothing more than disagreement with the Arbitrator's
interpretation of the parties' agreement. it is well established
that such disagreement provides no basis for finding an award
deficient. See, for example, Norfolk Naval Shipyard, Portsmouth,
Virginia and Tidewater, Virginia Federal Employees Metal Trades
Council, 26 FLRA  799 (1987).

     In reaching that conclusion, we find, contrary to the
Agency's assertion, that the award does not conflict with the law
regarding the implementation of changes in conditions of 
employment. With regard to changes that have only a "de minimis"
impact on conditions of employment of bargaining unit employees,
the Arbitrator specifically stated that there is no obligation to
bargain over such changes. Award at 14. Therefore, the award does
not prevent implementation of such changes. See Department of
Health and Human Services, Social Security Administration, 24
FLRA  403 (1986) (in which the Authority set forth the standard
used to determine whether changes in conditions of employment
affecting bargaining unit employees give rise to a bargaining

     With regard to changes in conditions of employment in other
circumstances, the Arbitrator simply determined that the parties
had agreed that management at the national level would declare
proposals or matters nonnegotiable before changes could be
implemented. The Arbitrator also noted that management could
implement changes at its own risk. Therefore, we reject the
Agency's assertion that the award would prevent management from
implementing proposed changes.

     Furthermore, the award does not preclude local and regional
officials from alleging that proposals are nonnegotiable. We find
that the Arbitrator merely interpreted the parties' agreement as
providing that negotiability disputes within the meaning of the
Statute are to be referred to the national level for an attempt
to resolve lower-level differences. This interpretation does not
suggest that officials at the local and regional levels may not
allege that matters or proposals are outside the duty to bargain.
If that were the case, there would be no disputes to refer to the
national level. Rather, under the Arbitrator's interpretation of
the agreement, managers at the local and regional levels do not
make formal declarations of nonnegotiability. Their allegations
would be subject to review, further negotiations, and final
determination at the national level, the level of exclusive
recognition. Nothing in the Statute precludes the negotiation or
enforcement of such a process for making and reviewing
negotiability allegations. See Department of Defense Dependents
Schools and Overseas Education Association, 12 FLRA  52 (1983)
(in which the arbitrator interpreted the parties' agreement as
authorizing negotiations at the national level and the Authority,
noting that the union's exclusive recognition was at that level,
held that the Statute did not require negotiations at other than
the national level). For the same reasons, we likewise reject the
Agency's assertion that the award interferes with management's
right to assign work. 

     Finally, we find that the Agency's reliance on the dismissal
of an unfair labor practice charge in support of its position is
misplaced. The dismissal letter does not address the level of
Agency management at which declarations of nonnegotiability may
be made. Rather, the letter concludes only that since the
proposals presented were nonnegotiable, implementation of various
changes in conditions of employment did not violate the Statute.
Further, the decision not to issue a complaint is a
nonreviewable, nonprecedential exercise of the General Counsel's
prosecutorial responsibility. Turgeon v. FLRA,  677 F.2d 937
(D.C. Cir. 1982). Therefore, the dismissal of the charge is not
binding on the Arbitrator or the Authority.

     VI. Decision

     For the reasons set forth above, the Agency's exceptions are
denied. 1

     Issued, Washington, D.C., January 28- 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member



     Footnote 1 The Agency also requested a stay of the award
when it   filed its exceptions with the Authority on April 20,
1987. However,   effective December 31, 1986, the Authority's
Regulations were revised   to revoke those portions pertaining to
the filing of requests for stays of arbitration awards (51 Fed.
Reg. 45754). Accordingly, no action on   the stay request was