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The decision of the Authority follows:
41 FLRA No. 63
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator B. R. Skelton 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.
The Arbitrator denied the Union's grievance which claimed that the Agency violated the parties' collective bargaining agreement by refusing to bargain over a pilot program. We conclude that the Arbitrator's award is contrary to the Statute and we will remand the case to the parties for further processing consistent with this decision.
II. Background and Arbitrator's Award
The mission of the Agency is to protect the public health and prevent economic fraud by inspecting meat and poultry that is shipped in interstate and foreign commerce. For a period of approximately ten years, the Agency periodically examined its inspection procedures to determine whether any changes were necessary to make those procedures more efficient. In connection with this process, the Agency implemented various pilot programs. It is uncontradicted that during this time the Agency consulted with the Union concerning the pilot programs but that no bargaining occurred. Rather, bargaining took place when the programs were implemented on a permanent basis. In April 1987 and February 1988, the Agency implemented a pilot program entitled Discretionary Inspection (DI) in various locations in Tennessee and Chicago. The Arbitrator described the DI as "a more scientific inspection approach that includes risk management, automated support systems, and structuring of inspection tasks to insure vital production areas are monitored." Award at 1. The Union requested to bargain on the impact of the pilot phase of the DI program. When the Agency refused, the Union filed a grievance contesting the Agency's right to pilot the inspection procedure without first bargaining. The grievance proceeded to arbitration.
In the absence of a stipulated issue, the Arbitrator framed the issue as follows:
Did the Agency violate the Agreement Between the Parties when it refused to bargain as demanded by the Union concerning the pilot testing programs? If so, what shall the remedy be?
Id. at 2.
Before the Arbitrator, the Union argued that it had a statutory right to negotiate with the Agency over the impact of the pilot phase of the DI; the Agency failed to establish that the Union waived its statutory right to negotiate over the impact of the pilot phase of the DI; the Union's past inaction concerning other pilot programs does not establish a waiver of the Union's bargaining rights in this instance; and unambiguous language in the parties' agreement expressly reserves to the parties all statutory rights.
The Agency argued that there was a past practice of consultation with the Union concerning pilot programs; that the Union did not challenge this practice until the grievance was filed; that the past practice became the equivalent of an express agreement between the parties; and that Article II, Section B of the parties' agreement establishes that there is no duty to bargain during the term of the agreement absent a management initiated change.(1) The Agency asserts that it did not change established conditions of employment or alter existing practices during the term of the agreement and, therefore, that there was no obligation to bargain.
According to the Arbitrator, the dispute centered on whether there was a past practice which relieved the Agency of the obligation to bargain with the Union prior to the implementation of pilot programs. The Arbitrator found that there existed a practice of at least 10 years duration during which the Agency did not bargain over pilot programs. Rather, the Arbitrator found that negotiations occurred once the programs were implemented on a permanent basis. The Arbitrator also found that the practice of not bargaining over the pilot programs had continued for a sufficiently long period of time to become a binding past practice which, although not contained in any contract language, had "the full force of contractual language." Id. at 6. The Arbitrator concluded that the Union failed to prove that the Agency violated any provision of the parties' agreement or section 7106(b) of the Statute, on which the Union had relied. In this latter regard, the Arbitrator found that negotiations under section 7106(b)(1), (2) and (3) of the Statute were at the election of the Agency and there was no showing that the Agency violated this section by failing to negotiate. The Arbitrator, therefore, denied the grievance.
In reaching his conclusion that the Agency did not improperly refuse to bargain, the Arbitrator addressed and rejected the Union's assertion that the DI differed from other pilot programs, thus giving rise to a bargaining obligation. While the Arbitrator "accepted as the factual testimony . . ." statements made by Union witnesses concerning changes in employees' working conditions, the Arbitrator found the record insufficient to establish whether the changes were more than de minimis. Id. at 4. The Arbitrator reasoned that just as the DI had "some impact" on employees' working conditions, so did the prior pilot programs over which the Union had not bargained. Id. at 6. The Arbitrator found that the past practice that had developed included implementing pilot programs that have some impact on working conditions and that the Union had acquiesced to this practice. Finally, the Arbitrator found that if the Union wished to change the past practice, the Union would have to wait until the parties renegotiated their agreement. At that time, the Union could secure its right to bargain over pilot programs.
III. Positions of the Parties
A. Union's Exceptions
The Union excepts to the award on the basis that it (1) conflicts with law in several respects; (2) fails to resolve the dispute; (3) fails to draw its essence from the parties' agreement; and (4) is not faithful to the arbitral process.
As to its first exception, the Union argues that under the Statute, there is no distinction between an agency's obligation to bargain over pilot or preliminary changes and permanent changes. The Union argues that a bargaining obligation exists whenever the impact of changes is more than de minimis. According to the Union, the Arbitrator erred in finding that the Agency had no obligation to bargain until the DI was made permanent. The Union further argues that the Arbitrator incorrectly found that bargaining under section 7106(b)(2) and (3) of the Statute was at the election of the Agency. The Union asserts that it has a statutory right to bargain under those sections that is not contingent on the Agency's election.
The Union also asserts that the Arbitrator erred in finding that the Union could waive future statutory bargaining rights as the result of a past practice. The Union maintains that a waiver of bargaining rights can only be effected by express agreement or bargaining history, and not by past practice. Finally, the Union argues that past practices can be established only with regard to conditions of employment and not with regard to the exercise of statutory rights.
In its second, third and fourth exceptions, the Union argues that the award will allow each party "to re-write statutory rights by claims of past practice[,]" thereby creating a new type of waiver of bargaining rights. Exceptions at 16. The Union also argues that the Arbitrator failed to properly address Article VII, Section B of the parties' agreement, which the Union claims preserves its bargaining rights. Finally, the Union argues that the Arbitrator was unfaithful to the arbitral process by suggesting alternative approaches to resolving the dispute and failing to answer the central dispute underlying the grievance. The Union adds that the award will lead to increased bargaining demands in order for the Union to protect its bargaining rights.
B. Agency's Opposition
In response to the Union's first exception, the Agency asserts that the Union is merely disagreeing with the Agency's reasons for not bargaining and not with the Arbitrator's conclusion. The Agency argues that the issue of whether there was a waiver of bargaining rights by past practice was fully considered by the Arbitrator and the Union's exception is simply an attempt to relitigate the merits of the issue before the Authority. The Agency also contests the Union's assertion that a past practice cannot exist with regard to a statutory right so as to constitute a waiver of that right. Again, the Agency asserts that the Union is attempting to relitigate the merits of the grievance before the Authority. Finally, the Agency agrees with the Union that the Arbitrator incorrectly concluded that bargaining under section 7106(b)(2) and (3) was at the election of the Agency. However, the Agency argues that this misstatement by the Arbitrator is not a basis for finding the award deficient because it did not affect the Arbitrator's finding of a past practice.
As to the Union's other exceptions, the Agency essentially argues that the Arbitrator properly interpreted the parties' agreement. Consequently, the Agency claims that the Union's reliance on the parties' agreement as preserving the Union's statutory bargaining rights constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement.
IV. Analysis and Conclusions
We conclude that the award is contrary to the Statute and that this case must be remanded to the parties for further processing. We find that the Arbitrator improperly determined that the Union had no statutory right to bargain over the impact and implementation of the pilot phase of the DI.
The Arbitrator determined that the issue raised by the grievance was whether the Agency violated the parties' agreement by refusing to bargain over the pilot program. The Arbitrator found that there was no language in the agreement concerning negotiations over pilot programs. Instead, the Arbitrator found that a past practice had developed, having the force and effect of contractual language, of not bargaining with the Union whenever the Agency implemented pilot programs.
It is well established that the duty to bargain under the Statute requires that, absent a clear and unmistakable waiver of bargaining rights, parties satisfy their mutual obligation to bargain before implementing changes in conditions of employment affecting unit employees. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990) (National Weather Service). A waiver of the right to bargain over particular matters can be established by express agreement or by reliance on bargaining history, where the plain language of the agreement is not a sufficient guide to the parties' intentions. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060, 1066 (1991) (Marine Corps Logistics Base), petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991). Additionally, in Marine Corps Logistics Base, the Authority stated that "[a]lthough the mere failure to request bargaining with regard to past management actions, without more, does not extinguish the right to request bargaining when a further management action occurs, . . . in certain circumstances a waiver also could be established by past practice." Id. However established, the waiver of a union's statutory right must be clear and unmistakable.
The Union argues, as a threshold matter, that it had a statutory right to bargain over the impact and implementation of the pilot phase of the DI and that it did not waive this right by failing to negotiate over previously implemented pilot programs. We agree. In our view, the Arbitrator's finding with regard to the Union's prior conduct does not establish that the Union clearly and unmistakably waived its right to bargain over the pilot phase of the DI.
The record establishes and the Arbitrator found that conditions of employment of unit employees were affected by the implementation of the DI. For example, statements of various Union witnesses at the arbitration hearing, which the Arbitrator credited as factual testimony, indicated that there were changes in annual leave usage, tours of duty, work schedules and rotations, training, and overtime. In addition to these changes, the Arbitrator found that the DI "increased responsibility and accountability on the employee." Award at 4. The Arbitrator also found that the DI was a more scientific inspection approach than previously existed at the various locations at which the DI was tested. Notwithstanding these changes, however, the Arbitrator concluded that previous pilot programs had also affected employees' working conditions, and the Union had not requested bargaining over the impact of those programs. Consequently, the Arbitrator concluded that the Union had acquiesced to the past practice of not bargaining over the impact and implementation of pilot programs.
Contrary to the Arbitrator, we conclude that the DI differed from previous pilot programs, both in terms of its particular effects and the employees who were affected by its implementation. Therefore, the absence of any bargaining requests by the Union concerning prior pilot programs does not establish that the Union clearly and unmistakably waived its right to bargain in this instance. The Arbitrator's finding that the Union's past conduct essentially constituted a waiver is inconsistent with the Union's statutory bargaining rights and is contrary to the Statute. See Marine Corps Logistics Base, 39 FLRA at 1070 (Authority adopted judge's finding that failure of union to seek bargaining over impact and implementation of prior management decisions to detail employees did not operate to waive union's right by past practice or acquiescence).
Our finding that the Union did not waive its statutory right to bargain over the impact and implementation of the pilot phase of the DI does not end the inquiry. In order to determine whether the pilot phase of the DI gave raise to a bargaining obligation, it is necessary to determine whether the effect of the changes on working conditions was more than de minimis.(2) See National Weather Service, 37 FLRA at 396. The Arbitrator addressed this point but found that the record was insufficient to establish whether the changes were de minimis. Consequently, we will remand this case to the parties for resubmission to an arbitrator of their choice for the purpose of ascertaining whether the pilot phase of the DI gave rise to a bargaining obligation and to resolve the issues raised in the grievance, without regard to the Arbitrator's erroneous finding that the Union was barred from negotiating by the existence of a past practice. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 41 FLRA No. 21 (1991), request for reconsideration filed July 5, 1991, (Authority set aside arbitrator's award that improperly relied on court decision and remanded case to parties to address bargaining obligation under section 7106(b)(2) and (3) of the Statute).(3)
The Arbitrator's award is set aside. The case is remanded to the parties for resubmission to arbitration in accordance with this decision.
(If blank, the decision does not have footnotes.)
1. Article VII, Section B provides in pertinent part:
Section B--Changes in Rules and Regulations:
The Parties agree that when there exists the duty to negotiate, they will do so in good faith to the extent permitted under Title VII of the Civil Service Reform Act of 1978 and will reserve all rights granted by that statute. . . .
2. The Union limited its bargaining request to the impact and implementation of the pilot phase of the DI.
3. In view of our conclusion with respect to the Union's first exception, we find it unnecessary to address the other exceptions advanced by the Union. However, we note that the Arbitrator stated that the obligation to bargain under section 7106(b)(1), (2) and (3) of the Statute was at the election of the Agency. As noted by both the Union and the Agency, the only matters that are negotiable at the election of the Agency are those contained in section 7106(b)(1) of the Statute. The Union's right to bargain under section 7106(b)(2) and (3) is not contingent on the Agency's election to bargain.