[ v06 p342 ]
06:0342(60)AR
The decision of the Authority follows:
6 FLRA No. 60 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164, AFL-CIO Union and THE SOCIAL SECURITY ADMINISTRATION Agency Case No. O-AR-109 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF ARBITRATOR IRWIN M. LIEBERMAN FILED BY THE UNION UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)). ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN THE UNION REQUESTED, PURSUANT TO A REOPENER PROVISION IN THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, THAT THE AGENCY'S BOSTON REGION (THE ACTIVITY) MEET AND CONFER ON A SERIES OF PROPOSALS WITH RESPECT TO CERTAIN MATTERS. AFTER A PRELIMINARY MEETING, THE ACTIVITY REFUSED TO NEGOTIATE, MAINTAINING THAT THE UNION'S PROPOSALS WERE NOT WITHIN THE PURVIEW OF THE AGREEMENT. CLAIMING THAT THIS REFUSAL VIOLATED THE AGREEMENT, THE UNION FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION. TWO WEEKS AFTER FILING THE GRIEVANCE, LOCAL 1164 WAS REPLACED AS EXCLUSIVE REPRESENTATIVE PURSUANT TO A UNIT CONSOLIDATION. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A CONSOLIDATED NATIONWIDE UNIT WHICH INCLUDED THE BARGAINING UNIT REPRESENTED BY LOCAL 1164 AND COVERED BY THE AGREEMENT IN DISPUTE IN THIS CASE. AT ARBITRATION THE ACTIVITY FILED A MOTION TO DISMISS THE GRIEVANCE ARGUING THAT IT WAS NOW MOOT AS A RESULT OF THE UNIT CONSOLIDATION. BECAUSE OF THE MOTION, THE ARBITRATOR STATED HIS "SOLE CONCERN" TO BE "WHETHER INDEED THE ISSUE OF THE CONTRACTUAL RIGHT TO NEGOTIATE HAS BEEN MOOTED BY THE UNIT CONSOLIDATION." HE DETERMINED THE DISPOSITIVE ISSUE TO BE "WHETHER FOLLOWING THE CONSOLIDATION OF THE BARGAINING UNIT, A RELATIONSHIP EXISTS WHICH UNDER THE CONTRACT GAVE THE UNION THE RIGHT TO BARGAIN ON A MIDTERM BASIS." THE ARBITRATOR RULES THAT BARGAINING OVER THE UNION'S PROPOSALS WAS PRECLUDED ONCE THE UNION'S EXISTENCE AS THE EXCLUSIVE BARGAINING REPRESENTATIVE HAD BEEN TERMINATED BY THE UNIT CONSOLIDATION PROCESS. CONSEQUENTLY, HE DETERMINED THAT THE UNION'S GRIEVANCE HAD BEEN MOOTED AND AS HIS AWARD DISMISSED THE GRIEVANCE. THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425. THE AGENCY DID NOT FILE AN OPPOSITION. THE UNION HAS FILED FIVE EXCEPTIONS TO THE AWARD. THE SUBSTANCE OF EACH OF THESE EXCEPTIONS IS ESSENTIALLY IDENTICAL: THAT LOCAL 1164 HAD A CONTINUING "RIGHT TO MIDTERM BARGAINING" AND THAT THE ACTIVITY HAD A CONTINUING "CONTRACTUAL OBLIGATION" TO BARGAIN, BOTH OF WHICH HAVE ASSERTEDLY BEEN IMPROPERLY DENIED BY THE ARBITRATOR'S AWARD. HOWEVER, THE AUTHORITY ADDRESSED PRECISELY THIS QUESTION IN DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION AND LOCAL 1346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 6 FLRA NO. 33(1981). IN THAT CASE THE AUTHORITY WAS PRESENTED IN RESPECT TO THE SAME UNIT CONSOLIDATION WITH THE QUESTION OF WHETHER THERE IS A DUTY TO BARGAIN NEW TERMS AND CONDITIONS OF EMPLOYMENT AT THE LOCAL LEVEL PURSUANT TO A REOPENER CLAUSE CONTAINED IN A LOCAL AGREEMENT ONCE THERE HAS BEEN A CERTIFICATION OF A REPRESENTATIVE FOR A NATIONWIDE CONSOLIDATED UNIT. THE AUTHORITY EXPRESSLY DETERMINED THAT THERE WAS NO SUCH DUTY AND THAT CONSEQUENTLY A REFUSAL TO BARGAIN BY MANAGEMENT IN SUCH CIRCUMSTANCES WAS NOT IMPROPER. BECAUSE THE ISSUE PRESENTED TO AND DECIDED BY THE ARBITRATOR BEARS NO MATERIAL DIFFERENCE FROM THE ISSUE DECIDED BY THE AUTHORITY IN AFGE LOCAL 1346 AND BECAUSE THE ARBITRATOR'S AWARD IS FULLY CONSISTENT WITH THAT DECISION OF THE AUTHORITY, FOR THE REASONS MORE FULLY SET FORTH IN AFGE LOCAL 1346, NONE OF THE UNION'S EXCEPTIONS PROVIDES A BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED. ISSUED, WASHINGTON, D.C., JULY 30, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ 5 U.S.C. 7122(A) PROVIDES: (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT-- (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS.