[ v40 p636 ]
The decision of the Authority follows:
40 FLRA No. 57
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Patrick E. Zembower 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.(1) The Union did not file an opposition to the Agency's exception.
The Union filed a grievance claiming that the Agency violated the parties' collective bargaining agreement when it unilaterally implemented certain Government-wide regulations. The Arbitrator upheld the grievance and directed the Agency to rescind its implementation of the regulations to the extent that they affected related articles of the agreement.
For the following reasons, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The parties' collective bargaining agreement was executed by the parties on August 24, 1987. Article 41 of the agreement provides, in pertinent part::
Article 41. Duration of the Agreement
This agreement will remain in full force and effect for 30 months from the date of approval by the agency and the union. . . .
Either party may give written notice to the other, no more than 105 nor less than 60 days prior to the contract expiration date, and each subsequent expiration date, for the purpose of renegotiating this agreement. The present agreement will remain in full force and effect during the renegotiation of said agreement and until such time as a new agreement is approved.
If neither party serves notice to renegotiate this agreement, the agreement shall be automatically renewed for 1-year period, subject to the provisions of this article.
Award at 6.
Neither party provided notice, pursuant to Article 41, Section 2, of an intent to renegotiate the agreement.
However, as relevant here, the Agency notified the Union on February 5, 1990, that it intended to implement provisions of Federal Personnel Manual (FPM) Chapters 339 and 351 on March 1, 1990. The Agency provided the Union with an opportunity to bargain over the impact and implementation of the new regulations under Article 3, Section 7 of the agreement, which provides:
Section 7. Impact and Implementation Bargaining
Impact and implementation bargaining is defined as negotiations regarding proposed changes on matters outlined in Section 7106 Title 5 USC for appropriate arrangements for employees adversely affected by those changes. . . . It is understood and agreed the employer will identify all proposed changes of working conditions and notify the union at least 7 calendar days in advance of the proposed effective date. As a minimum, the notification will include the names of the affected employees, their work location, and the nature of the change. If no request for impact/implementation bargaining is received by the proposed effective date, the employer will implement the change. If the union requests bargaining, negotiations will commence not later than 7 calendar days from the date of receipt of the request . . . .
The Union did not accept the Agency's offer to bargain "because of its belief that the notice was invalid, because the Employer failed to follow the contract." Id. at 7. The Agency then implemented FPM Chapters 339 and 351.
The Union filed a grievance over the issue of when the Agency can "'reopen' the contract to implement higher level regulations that change the contract[,]" and whether the Agency's unilateral implementation violated the agreement. Id. at 2. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issues before him as follows:
When did the agreement expire?
Did the agency violate the agreement when it unilaterally implemented certain government- and agency-wide regulations following expiration of the agreement?
If so, what should the remedy be?
Award at 2.
Before the Arbitrator, the Agency asserted that the parties' agreement expired on February 24, 1990, and, pursuant to Article 41, was automatically renewed on February 25. The Agency claimed that as the agreement expired, it was obligated under a Department of Defense regulation to bring the renewed agreement into conformance with Government-wide regulations.(2) The Agency claimed that "[w]hile the agency could have given the union notice during the renegotiation window, it elected not to do so." Award at 3. According to the Agency, it was obligated only to bargain over the impact and implementation of the disputed regulations and, as a result, properly gave the Union notice of its intent to implement the regulations under Article 3, Section 7 of the agreement.
The Arbitrator rejected the Agency's arguments. First, the Arbitrator determined that the automatic renewal date of the agreement was February 24, 1990, not February 25, as the Agency claimed. The Arbitrator then determined that, under Article 41, Section 2, the "renegotiating window" was from November 10, 1989, through December 25, 1989. Id. at 7.
Second, the Arbitrator determined that Article 41, Section 2 applied to the Agency's decision to "bring the agreement into conformance with new or changed regulations that change the collective bargaining agreement[.]" Id. at 10. The Arbitrator stated, in this regard, that the Agency "was obligated to follow Article 41, section 2 rather than Article 3, section 7." Id. at 11-12. Noting that the Agency provided the Union with notice of its intention to implement the disputed regulations on February 5, 1990, the Arbitrator concluded that the Agency violated Article 41 of the agreement.
Third, the Arbitrator rejected the Agency's argument that it was required, under the DoD regulation, to implement the disputed regulations. The Arbitrator held that the Agency was required to follow the "controlling provisions" of the parties' agreement. Id. at 10. The Arbitrator stated that he did not believe that the DoD regulation could be interpreted as requiring the Agency to "violate its agreement when implementing governing regulations . . . ." Id. at 11.
The Arbitrator concluded that "[t]he contract has not expired. By its own terms, the contract is still in full force and effect." Id. at 8. Consequently, as the Arbitrator concluded also that the Agency violated Article 41 of the parties' agreement, he sustained the grievance and ordered the Agency to rescind the implementation of FPM Chapters 351 and 339, as they related to the provisions of the agreement. Id. at 13.
III. The Agency's Exception
The Agency excepts to the award to the extent that it orders the Agency to rescind implementation of FPM Chapters 339 and 351. The Agency asserts that requiring the Agency to adhere to provisions of an agreement which conflict with Government-wide regulations in effect prior to the effective date of the renewed agreement is contrary to section 7117 of the Statute. According to the Agency, it properly gave the Union notice of its intention to implement the disputed regulations and, even though the parties did not bargain pursuant to the Agency's notice, the Agency was required "upon the expiration of [the] agreement, to adhere to existing [G]overnment-wide rules and regulations . . . and to conform its practices to those rules and regulations." Exception at 5. The Agency also asserts that it acted in accordance with the DoD regulation when it "attempted to bring its expired agreement into compliance with existing laws and government-wide regulations. . . ." Id. at 4.
IV. Analysis and Conclusions
Under section 7117 of the Statute, Government-wide rules and regulations bar negotiation over and agreement to union proposals that conflict with them. Except for Government-wide rules or regulations implementing 5 U.S.C. § 2302, however, Government-wide rules or regulations do not control over conflicting provisions in a collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed. See 5 U.S.C. § 7116(a)(7). See also U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 193 (1990) (Fort Campbell).
Section 7116(a)(7) of the Statute is interpreted and applied by the Authority "narrowly." DCA, 37 FLRA at 1228. As such, provisions in a collective bargaining agreement control over conflicting Government-wide regulations "for the express term of the agreement during which the Government-wide regulation was first prescribed, but no longer." Id. Moreover, the enforceability of Government-wide regulations is not "dependent on negotiations upon the expiration of the collective bargaining agreement." Id. Instead, such Government-wide regulations become enforceable "by operation of law when the agreement expires." Id.
Applying the foregoing principles in this case, it is clear that the award does not conflict with section 7117 of the Statute. The Arbitrator found that the Agency was obligated by the parties' collective bargaining agreement to provide notice, in accordance with Article 41, of its intention to implement the disputed Government-wide regulations. It is not disputed that the Agency did not do so. The Arbitrator concluded, based on his interpretation of the agreement, that as neither party gave appropriate notice under Article 41, the agreement "has not expired. By its own terms, the contract is still in full force and effect." Award at 8.
It is clear from the award that the parties did not agree that the Agency could implement the disputed Government-wide regulations without regard to the procedures set forth in Article 41 of the agreement. Instead, the parties agreed that Article 41 governed the implementation of the regulations. Moreover, unlike the situation in DCA, where there was no dispute that the parties' agreement had expired and been renewed, the Arbitrator found here that the agreement did not expire. Accordingly, the disputed Government-wide regulations did not become enforceable by operation of law.
We reject, in this regard, the Agency's argument that Article 41, as interpreted and applied by the Arbitrator, conflicts with section 7117 of the Statute. Indeed, the Authority previously has considered and rejected a similar argument. In American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1068-72 (1988) rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 2, 1989), the Authority held negotiable a provision which established the duration of a collective bargaining agreement and provided that the agreement would remain in full force and effect during any renegotiations. Specifically, the Authority rejected the agency's argument that the provision was inconsistent with the same DoD regulation relied on by the Agency here. The Authority stated, in this regard, that the disputed provision did not conflict with the DoD regulation and did not otherwise prevent the agency from bringing the agreement into conformance with governing regulations because:
The [a]gency has the opportunity to give notice to the [u]nion that it wishes to reopen the contract 90 days prior to its expiration. If the [a]gency provides appropriate notice, all matters would be reopened and subject to renegotiation.
Id. at 1071. Accord American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1609-10 (1987).
As interpreted and applied by the Arbitrator, the Agency agreed to provide notice of its intention to implement the disputed Government-wide regulations pursuant to Article 41 of the parties' collective bargaining agreement. In fact, the Agency conceded that although it "could have given the union notice during the renegotiation window, it elected not to do so." Award at 3. Consistent with Authority precedent, Article 41, as interpreted and applied by the Arbitrator, is fully enforceable. Consequently, the award enforcing Article 41 does not conflict with section 7117 of the Statute and is not deficient under section 7122(a) of the Statute.
Finally, it is unnecessary for us to determine whether, as the Agency asserts, the Agency acted consistent with the DoD regulation. The Arbitrator found that Article 41 of the parties' agreement applied, and was "controlling[,]" with respect to the issue in this case. Award at 10. Provisions in a collective bargaining agreement "take precedence over agency rules and regulations with respect to matters to which they both apply." Fort Campbell, 37 FLRA at 194. Accordingly, even if the Agency acted consistent with the DoD regulation, that fact would not excuse its violation of the parties' agreement or otherwise render the Arbitrator's award deficient.
In sum, we have no basis on which to conclude that the Arbitrator's award conflicts with section 7117 of the Statute or is deficient on any of the grounds set forth in section 7122 of the Statute. Accordingly, we will deny the Agency's exception.
The Agency's exception is denied.
(If blank, the decision does not have footnotes.)
1. The Agency also filed a supplemental submission noting the Authority's decision in U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 37 FLRA 1218 (1990) (DCA), and presenting additional arguments. The Authority's Regulations do not provide for the filing of supplemental submissions and we find no circumstances justifying our consideration of the Agency's submission in this case. We are, however, cognizant of DCA and will address it in our analysis of the Agency's exception.
2. The Agency relied on Department of Defense Civilian Personnel Manual (CPM) 1400.25-M, Chapter 711, Subchapter 3-3c(2) (hereinafter the DoD regulation), which provides:
Federal law and rules and regulations implementing 5 U.S.C. 2302 regarding prohibited personnel practices supersede conflicting provisions in a collective bargaining agreement. Other substantive Government-wide, DoD and cognizant primary national subdivision rules, regulations and policies, which do not merely transmit requirements imposed by law, do not supersede such provisions during the term of that agreement. However, provisions must be brought into conformance with those rules, regulations, and policies at the time the agreement is renegotiated or when it is renewed or extended and such renewal or extension will result in its being in effect for more than three years and 90 days since it was last brought into conformance with applicable laws and regulations.
Attachment 2 to Exceptions at 2.