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The decision of the Authority follows:
36 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF EEOC LOCALS
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ORDER DISMISSING EXCEPTIONS
June 5, 1990
Before Chairman McKee and Member Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to decisions of National Umpire Oscar A. Ornati filed by 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. The Agency filed an opposition to the Union's exceptions. Both parties filed additional submissions which have been considered in reaching this decision.(2)
In the course of negotiations over flexitime at the Agency's headquarters, the Umpire made an interim decision in which he ruled that three disputed Union counterproposals were negotiable. In a subsequent final decision, the Umpire ruled that the parties were at impasse over the disputed proposals and that he had jurisdiction over the dispute under the advisory final offer selection procedure of Section 8.06 of the parties' collective bargaining agreement. The Umpire ruled that "Management's Final Offer Flexitime Proposal" was the most reasonable and should be implemented by the parties. Final Decision at 8.
The Union contends that the Umpire exceeded his authority under the collective bargaining agreement by issuing the two decisions. We find that we lack jurisdiction to review the Union's exceptions because the Umpire's interim and final decisions do not constitute "arbitration under [the Statute]" within the meaning of section 7122(a) of the Statute. Therefore, we will dismiss the Union's exceptions. In view of the Agency's uncontroverted statement that it has corrected the erroneous billing for the Umpire's services, we will dismiss that portion of the Union's exceptions as moot.
On October 31, 1988, the Agency informed the Umpire that it was at impasse with Union Local 2667 in negotiations over flexitime at the national headquarters. The Agency requested the Umpire to rule on the negotiability of three Union counterproposals under the voluntary advisory impasse procedure contained in the collective bargaining agreement. The procedure is intended to be used before taking matters to the Federal Service Impasses Panel (Panel). Section 8.06 of the agreement provides as follows:
ADVISORY FINAL OFFER SELECTION PROCEDURE
Section 8.06 Advisory Final Offer Selection Procedures
(a) At impasse or upon completion of the negotiation procedures specified in this Article, whichever occurs first, either Party may refer the last best offers of the UNION and EMPLOYER described in Section 8.05(b) of this Agreement to the Umpire for advisory selection of the offer which is the most reasonable under all of the circumstances. A decision shall be made by the Umpire within five (5) workdays from receipt of the last best offer. In making such a determination, the Umpire may not deviate from the last best offers of the Parties and must select either the UNION's or the EMPLOYER's proposal.
(b) Thereafter, the Parties agree that the offer selected shall be implemented by the EMPLOYER pending final resolution of the dispute by the Federal Service Impasses Panel (FSIP) if requested by either Party.
(c) To the extent any final decision of the FSIP is inconsistent with the final offer so implemented in the interim, the implemented final offer shall be modified as of the effective date of the FSIP decision. However, employees will be reimbursed for any loss of pay they would have received if the FSIP decision had been implemented in lieu of the Umpire's decision.
(d) Final offer selection by the National Umpire shall normally be on the basis of written submissions and briefs unless either Party wishes to present oral arguments.
National Agreement at 11-12.
The Union challenged the Umpire's jurisdiction in the matter on the ground that the negotiations were at the local level rather than national level. The Union also denied that the parties were at impasse.
III. Umpire's Interim and Final Decisions
The Umpire issued an interim decision on November 14, 1988, in which he stated that he did not have enough information to rule on the Union's challenges to his jurisdiction. However, the Umpire ruled in the interim decision that "the three items as specified above do not violate any of the employer's substantive rights." Interim Decision at 5. He also stated that a document submitted by the Agency "labeled Union Counterproposal no. 4, irrespective of its appropriateness and merit[,] does not contain 'non-negotiable' matters." Id. at 6, emphasis in original.
On November 28, 1988, the Umpire issued his final decision, entitled "Decision On An Impasse In The 1988 HDQ. Flexitime Negotiations." The Umpire noted the Agency's contentions that: (1) the Umpire was in error to refuse jurisdiction; (2) management did not agree that Article 8.00 of the collective bargaining agreement was inapplicable; (3) the Umpire should follow Article 8.06 of the agreement and select either the Agency's or the Union's last best proposal; and (4) the negotiations had "dragged out for entirely too long . . . because of the interests of union officials who prefer the status quo." Final Decision at 3.
The Umpire noted the Union's contention that he lacked contractual or procedural jurisdiction under Article 8.00 of the parties' agreement because the dispute concerned a local matter and the procedures set forth in Article 8.00 are not mandatory for local matters. The Union claimed that the parties had not agreed to use the Article 8.00 procedures and asserted that management's request for the Umpire's intervention was premature. Final Decision at 3-4.
The Union also maintained that the Umpire lacked jurisdiction for the following substantive reasons: (1) there was no impasse and the Union had not made a "final" or "last working proposal;" (2) there had been progress in the negotiations; (3) management was not negotiating because it was submitting proposals in a format different from that used by the Union; and (4) management was responsible for any delay in negotiations and in the working out of ground rules, including resolution of the Union's claim of entitlement to parking privileges at the Agency headquarters. Final Decision at 4-5.
The Umpire stated that the Union submitted a copy of an award by the parties' National Arbitrator "which showed that the Union had raised questions about management's requirement to: (1) establish a fixed flexiband window in all its facilities, (2) negotiate provisions that provide for slide and glide, and (3) negotiate at the local level modifications in the use of time recording devices." Final Decision at 5. The Umpire also noted that management submitted "Management's Final Offer Flexitime Proposal" and "Union Counter Proposal # 4." Final Decision at 7.
The Umpire made the following award:
I. Based on the totality of Art. 8.00 of the [Collective Bargaining Agreement] I find that:
1. The Umpire has jurisdiction over the dispute Management submitted on October 31st 1988;
2. There exists an "Impasse" in the negotiations as to the flexitime schedule for the headquarters units began [sic] in 1986 and still ongoing as of the week prior to October 17 1988.
II. Based on a detailed analysis of the proposals submitted I find that:
Based on all of the circumstances of this dispute the "Management's Final Offer Flexitime Proposal" . . . dated Oct. 20th 1988 and attached here to is the most reasonable and should be implemented by management as soon as feasible.
Final Decision at 8.
IV. Positions of the Parties
A. Union's Exceptions
In its exceptions to the Umpire's decisions, the Union contends that the Umpire exceeded his authority under Article 8.00, Sections 8.04, 8.05, and 8.06 of the collective bargaining agreement by assuming jurisdiction over local negotiations. The Union asserts that "the National Umpire exceeded his authority by issuing a final and binding award as to the negotiability of three particular items within a union submission" and "by issuing an impasse ruling . . . as to an impasse in the 1988 Headquarter[s] Office and AFGE Local 2667[.]" Exceptions at 1. The Union also contends that the Umpire exceeded his authority by billing the Union for one-half the cost of the arbitration hearing.
The Union filed an additional statement in support of its exceptions by letter dated February 14, 1989. In that statement, the Union disputes the Agency's argument that the case is not properly before the Authority because Section 8.06(b) of the agreement allows either party to appeal the National Umpire's "advisory selection" to the Panel. The Union states that it requested assistance from the Panel by letter dated December 19, 1988, and that the Panel declined to accept jurisdiction because the case involved a matter of contract interpretation. The Union states that it voluntarily withdrew its request from the Panel in January 1989. See enclosure to Union letter of February 14, 1989; see also, letter dated January 18, 1989, signed by the Executive Director, Federal Service Impasses Panel, granting the Union's request to withdraw its request for Panel assistance. The Union also reiterates its position that the negotiations were local and were intended only to develop a flexitime agreement at the Agency headquarters and not for the entire Agency. The Union denies the Agency's contention that this matter concerns contract interpretation and should be referred to the National Arbitrator for resolution.
In a letter dated March 8, 1989, the Union submitted two arbitration awards by the National Arbitrator. In the awards, each dated March 4, 1989, the National Arbitrator declined to review decisions of the National Umpire concerning (1) the Fiscal Year 1989 General Performance Appraisal and Recognition agreements and (2) ground rules procedures for negotiations.
B. Agency's Opposition
The Agency states that it sought the assistance of the National Umpire pursuant to Sections 8.05(b)(3) and 8.06 of the collective bargaining agreement after the parties were unable to reach agreement and complete negotiations over the flexitime program for employees of the Agency's headquarters. The Agency asserts that the Umpire had jurisdiction over the matter and that he properly selected the Agency's last best offer as the one which the parties should incorporate into their agreement.
The Agency contends that the Authority does not have jurisdiction to rule on the Union's exceptions. The Agency points out that Article 8.00 of the collective bargaining agreement contains alternative dispute resolution procedures which "constitute the 'sole procedure' for conducting and resolving negotiations of matters for which there is an obligation to conduct implementation and impact bargaining." Opposition at 2. The Agency also points out that Section 8.06(b) provides that either party may appeal the National Umpire's decision to the Panel.
The Agency contends that, in the event the Union's exceptions are properly before the Authority, the Union has failed to demonstrate that the award does not draw its essence from the parties' agreement or that the National Umpire exceeded his authority by making a finding resolving the parties' negotiation impasse. The Agency denies that the matter submitted to the National Umpire was local and not national in scope and therefore outside the purview of the agreement. Rather, the Agency maintains that flexitime is a national issue which is subject to the provisions of the collective bargaining agreement.
The Agency also maintains that the issue in this case is a matter of contract interpretation which should be decided by the National Arbitrator. The Agency contends that the Union is only disagreeing with the National Umpire's "decision to exercise jurisdiction pursuant to Article 8.00 of the CBA" and that "disagreement with the factfinder" is not a basis for setting aside an award. Opposition at 4. The Agency denies that the Umpire disregarded any limitation on his authority.
The Agency states that the Union's exception concerning the allocation of the costs of the Umpire between the parties is moot because the erroneous billing has been corrected.
C. Additional Submissions
Both parties filed additional submissions which we have accepted and considered.
1. The Agency
By letter dated May 26, 1989, the Agency advised the Authority that "[o]n May 9, 1989, Management and Local 2667 resolved their differences regarding the Umpire's award and the Headquarters Flexitime Program which was implemented pursuant to that award." The Agency also stated that Local 2667 had withdrawn three unfair labor practice charges and one grievance which it had filed in connection with the matter. The Agency enclosed letters dated April 28, 1989, signed by the Regional Director of the Authority's Region 3 approving withdrawal of unfair labor practice charges in Case Nos. 3-CA-90433, 3-CA-90285, and 3-CA-90286. The Agency contends that the agreement with Local 2667 renders the dispute in this case moot and requests that the Union's exceptions be dismissed.
2. The Union
The Union responded to the Agency's request to dismiss the exceptions as moot by letter dated June 12, 1989. The Union maintains that the National Council of EEOC Locals is the certified exclusive representative of all Agency bargaining unit employees nationwide and denies that the dispute concerning flexitime at the Agency headquarters has been settled. The Union contends that under Section 4.02 of the collective bargaining agreement, a local agreement cannot be effective until reviewed by the National Council of EEOC Locals No. 216. The Union attached a letter dated June 12, 1989 in which it advised the Agency that the Union was withholding consent to the headquarters flexitime agreement. The Union states that the issues raised in its original appeal to the Authority remain the same and requests that the Authority issue a decision in this matter.
V. Analysis and Conclusion
We find that the Umpire's interim and final decisions are advisory and, therefore, do not constitute binding arbitration awards to which exceptions may be filed under section 7122(a) of the Statute. Therefore, the Authority is without jurisdiction to consider the Union's exceptions and the exceptions will be dismissed.
A. Arbitration Under the Statute
Under the Statute, parties to negotiations may use voluntary arrangements, including interest arbitration, to resolve bargaining impasses. 5 U.S.C. º 7119(b); 5 C.F.R. º 2471.1. However, parties may agree to adopt a procedure for binding interest arbitration only if the procedure is approved by the Panel under section 7119 of the Statute. See National Treasury Employees Union and Department of Treasury, Internal Revenue Service, 35 FLRA 7, 12 (1990). See also United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123, 1126 (1988), in which the Authority stated that the "requirement for Panel approval before the parties may use binding interest arbitration is the only restriction on the use of binding interest arbitration expressed in the Statute."
Section 7122(a) of the Statute states that "[e]ither party to arbitration under [the Statute]" may file exceptions to an arbitrator's award, with certain exclusions not relevant here. "[A]rbitration under [the Statute]" consists of either binding interest arbitration awards that result from a procedure approved by the Federal Service Impasses Panel (5 U.S.C. º 7119(b)(2)) or binding grievance arbitration (5 U.S.C. § 7121(b)(3)(C)). Therefore, the only kinds of arbitration awards to which exceptions may be filed under section 7122(a) of the Statute are binding interest arbitration awards that result from a procedure approved by the Panel and binding grievance arbitration awards.
B. The Umpire's Impasse Decisions Are Not Binding Arbitration Awards To Which Exceptions May Be Filed Under Section 7122(a) of the Statute
We conclude that the Umpire's interim and final decisions in which he made determinations as to which bargaining proposals the parties shall adopt in their agreement do not constitute binding arbitration awards to which exceptions may be filed under section 7122(a) of the Statute. Under the plain language of Section 8.06 of the parties' agreement, the Umpire's decisions constitute only advisory selection of the parties' final offers. Further, because the parties' final offer selection procedure is advisory and not binding, the procedure does not require approval of the Panel and thus does not come within the scope of section 7119 of the Statute. Moreover, there can be no contention that the Umpire's decisions constitute grievance arbitration under section 7121 of the Statute.
Accordingly, inasmuch as the Umpire's decisions are not binding arbitration awards under section 7119(b)(2) or section 7121(b)(3)(C), the Authority lacks jurisdiction under section 7122(a) to review exceptions to those decisions. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Center and American Federation of Government Employees, Local 3407, 34 FLRA 44 (1990) (the Authority does not have jurisdiction under section 7122(a) to review exceptions to decisions which did not result from binding arbitration awards); American Federation of Government Employees Council, San Francisco Region and Department of Health and Human Services, Social Security Administration, 9 FLRA 161 (1982) (SSA) (advisory hearing procedure established as part of process for reaching a final agency decision on proposed adverse action is not a matter for which a party can obtain Authority review under section 7122(a) of the Statute).
We note that the Umpire designated his decisions as "final and binding." Interim Decision at 1; Final Decision at 1. However, in view of the Umpire's statements that the decisions were made "Pursuant to Art. 8.00, Section 8.06" of the agreement (Id.), and that the decisions were "Based on Art. 8.00, Section 8.06" (Interim Decision at 6) and "Based [on] the totality of Art. 8.00 of the CBA" (Final Decision at 8), we conclude that the Umpire's decisions on the impasse matters are advisory final offer selections, not binding arbitration awards to which exceptions may be filed under section 7122(a). The Umpire's decisions, like the arbitration in SSA, were "not under the province of the Statute, and thus there is no basis under the Statute for the Authority to review exceptions" to the Umpire's decisions. SSA, 9 FLRA at 163.
Because the Authority does not have jurisdiction to consider exceptions to the Umpire's advisory decisions, the Union's exceptions must be dismissed.(3)
The Union's exceptions to the Umpire's advisory final offer selection decisions under Section 8.06 of the agreement are dismissed for lack of Authority jurisdiction. In view of the Agency's uncontroverted statement that it has corrected the erroneous billing for the Umpire's services, that portion of the Union's exceptions is dismissed as moot.
(If blank, the decision does not have footnotes.)
1. Member Talkin did not participate in this decision because the case involves the Equal Employment Opportunity Commission and a dispute which arose while she was Chief of Staff of the Commission.
2. The Union also requested a stay of the award when it filed its exceptions to the award with the Authority on December 14, 1988. 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 taken.
3. In view of this disposition and in the absence of any discussion or argument by the parties on the court decisions pertaining to the review of interest arbitration awards, we do not address the effect, if any, of those decisions on our determination. See Department of Agriculture v. FLRA, 879 F.2d 655 (9th Cir. 1989), vacated in part on rehearing, 895 F.2d 1239 (9th Cir. 1990); Defense Logistics Agency v. FLRA, 882 F.2d 104 (4th Cir. 1989); Department of Defense v. FLRA, 879 F.2d 1220 (4th Cir. 1989); Panama Canal Commission v. FLRA, 867 F.2d 905 (5th Cir. 1989); and Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988).