[ v15 p347 ]
15:0347(74)AR
The decision of the Authority follows:
15 FLRA No. 74
LOUIS A. JOHNSON VETERANS
ADMINISTRATION MEDICAL CENTER,
CLARKSBURG, WEST VIRGINIA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2384
Union
Case No. O-AR-555
DECISION
This matter is before the Authority on an exception to the award of
Arbitrator Dennis R. Nolan filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
The dispute in this matter concerns the adoption by the Activity of
new criteria governing the eligibility for incentive awards. The Union
filed a grievance that was submitted to arbitration claiming that the
Activity violated provisions of the master and local collective
bargaining agreements by failing to negotiate with the Union before
modifying the criteria for the awards. Thus, the Arbitrator framed the
issues as follows: "A. Is the dispute arbitrable? B. If the dispute is
arbitrable, did the Employer violate the collective bargaining agreement
by adopting new criteria governing eligibility for incentive awards
without bargaining with the Union? If so, what shall the remedy be?"
After determining the dispute to be arbitrable, the Arbitrator
determined that the new criteria had been adopted without notification
to or bargaining with the Union. After considering the relevant
provisions of the master and local agreements, /1/ as well as the
Statute, the FPM and an FPM Bulletin, the Arbitrator determined that the
adoption and modification of policies governing the incentive awards
program are negotiable matters. Consequently, the Arbitrator ruled that
the Activity had violated its obligations under the master and local
agreements and ordered as follows:
The grievance is sustained insofar as it alleges that the
Employer adopted new criteria governing incentive awards in August
1982 without notifying or bargaining with the Union.
The Employer is ordered to give reasonable notice to the Union
if it proposes to use any criteria governing incentive awards
other than those applied prior to August 1982, or if it proposes
to modify those criteria.
The Employer is further ordered, upon request by the Union, to
bargain with the Union in good faith concerning any modification
or substitution of criteria governing incentive awards.
In its exception the Agency contends that the award is contrary to
the Statute. Specifically, the Agency maintains on the basis of
Interpretation and Guidance, 11 FLRA No. 107 (1983), that the award is
contrary to section 7105(a)(2)(E) of the Statute which provides: "The
Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-- resolve issues
relating to the duty to bargain in good faith under section 7117(c) of
this title(.)" The Authority in the Interpretation and Guidance
addressed the question of whether the Federal Service Impasses Panel has
the authority to resolve questions concerning the obligation to bargain
which arise after the Panel has asserted jurisdiction over an impasse in
negotiations pursuant to section 7119 of the Statute. The Authority
concluded that section 7119 does not authorize the Panel to resolve
issues as to whether there is an obligation to bargain. Rather, section
7105(a)(2)(E) requires that the Authority resolve such issues. The
Agency's position in support of this exception is essentially that
because the Authority concluded that the Panel was precluded by the
Statute from resolving issues concerning the obligation to bargain, the
Arbitrator was likewise precluded from resolving whether the criteria
governing incentive awards are within the duty to bargain.
The Authority concludes with respect to this contention of the Agency
that the award is not contrary to section 7105(a)(2)(E) of the Statute.
In the Interpretation and Guidance upon which the Agency relies the
Authority said, in pertinent part:
Specific provisions of the Statute provide for the resolution
by the Authority of disputes relating to the parties' obligation
to bargain. Thus, section 7105(a)(2)(E) of the Statute makes it
clear that the Authority is required to resolve issues relating to
the duty to bargain in good faith under section 7117(c) which
specifically contemplates an appeal "to the Authority." In order
to implement this statutory imperative, Part 2424 of the
Authority's Rules and Regulations sets forth the procedures for
union appeals to the Authority from agency allegations that the
duty to bargain in good faith does not extend to matters proposed
to be bargained. Therefore, it is clear that, based on the plain
language of the Statute as implemented in the Authority's Rules
and Regulations, negotiability issues which arise during the
collective bargaining process must be resolved through appeal to
the Authority. (Footnote omitted.)
Clearly, therefore, negotiability disputes which arise between an
agency and an exclusive representative under section 7117(c)(1) /2/ must
be resolved by the Authority as required by section 7105(a)(2)(E). /3/
Consequently, such disputes may not be resolved by an arbitrator in the
guise of a grievance under the negotiated grievance procedure contained
in the collective bargaining agreement between the exclusive
representative and the agency.
Of course, disputes relating to the meaning and application of
provisions of the parties' collective bargaining agreement, including
provisions therein dealing with the obligation to bargain, are subject
to resolution under the negotiated grievance procedure and a
negotiability appeal is not the proper forum in which to resolve such
disputes. See, e.g., National Federation of Federal Employees, Local
1430 and Department of the Navy, Northern Division, U.S. Naval Base,
Philadelphia, Pennsylvania, 9 FLRA 1086, 1087 (1982); American
Federation of Government Employees, AFL-CIO, Local 1931 and Department
of the Navy, Naval Weapons Station, Concord, California, 2 FLRA 182, 183
(1979). Therefore, the dispute concerning the meaning and application
of the collective bargaining agreement in this case was raised under the
negotiated grievance procedure and the parties quite properly did not
submit the matter to the Authority under the negotiability appeals
procedures.
Further, nothing prevents an arbitrator from considering the meaning
and applicability of relevant Federal law and regulations when resolving
a grievance under the negotiated grievance procedure. Indeed, where
exceptions to an arbitration award are filed with the Authority, section
7122 authorizes the Authority to take such action as it considers
necessary with respect to an arbitration award which it finds deficient
because the award is contrary to any law, rule or regulation. To avoid
such findings of deficiency by the Authority, an arbitrator must
perforce consider any relevant law, rule or regulation when fashioning a
grievance arbitration award in the Federal sector.
In this case, the Arbitrator was asked to resolve a grievance
properly before him of whether the Activity's actions violated
negotiated provisions of the collective bargaining agreements. In the
course of doing so, he considered whether the criteria governing
incentive awards were within the duty to bargain under the provisions of
the master and local agreements and collaterally, under relevant
provisions of law and regulation. Contrary to the Agency's contention,
the Authority finds that the Statute in no manner precluded the
Arbitrator from considering the collateral issue of whether, under
relevant statute and regulations, the obligation to bargain extends to
criteria governing incentive awards. Thus, the Arbitrator properly
considered the relevant laws, rules and regulations relating to the
obligation to bargain in the course of resolving the grievance before
him of whether the Activity's actions violated a negotiated clause of
the collective bargaining agreement. See National Archives and Records
Service, General Services Administration and Local 2578, American
Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982).
Although the Arbitrator was not prohibited by the Statute from
considering the collateral issue of the obligation to bargain in the
course of resolving the grievance, his conclusion in that regard, of
course, must be consistent with the Statute and relevant decisions of
the Authority and the determination is subject to review by the
Authority on the filing of an exception contending that the award is
deficient under section 7122(a) of the Statute. See id. at 383. In
this respect the Authority has expressly held that an integral aspect of
management's exercise of its right to direct employees under section
7106(a)(2)(A) and its right to assign work under section 7106(a)(2)(B)
is to prescribe the standards which an employee must attain in order to
be eligible for a reward for superior performance. National Treasury
Employees Union and Internal Revenue Service, 14 FLRA No. 77 (1984)
(proposals 1-2). Thus, in terms of this case, the Arbitrator could not
properly order the Activity to negotiate with the Union concerning the
decision of the Activity to modify the criteria governing incentive
awards. Consequently, the Authority finds that the award is deficient
as contrary to section 7106(a) of the Statute to the extent that it
subjects the Activity's decision to modify the criteria governing
incentive awards to negotiation. See Commander, 554th Combat Support
Group (TAC), Nellis Air Force Base, Las Vegas, Nevada and American
Federation of Government Employees, Local 1199, AFL-CIO, Nellis Air
Force Base, 14 FLRA No. 14 (1984). Accordingly, the award is modified
to provide as follows:
The grievance is sustained insofar as it alleges that the
Employer adopted new criteria governing incentive awards in August
1982 without notifying the Union and affording it an opportunity
to bargain on impact and implementation.
The Employer is ordered to give reasonable notice to the Union
if it proposes to use any criteria governing incentive awards
other than those applied prior to August 1982 or if it proposes to
modify those criteria.
The Employer is further ordered, upon request by the Union, to
bargain with the Union in good faith concerning the impact and
implementation of any modification or substitution of criteria
governing incentive awards.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ As the Arbitrator said in his award:
. . . More pertinently, the parties themselves agreed to
negotiate about such changes. Article 4, Section 5 of the Master
Agreement is the clearest statement of the duty to negotiate:
"Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request, the parties will negotiate as
appropriate." At least two other provisions of that Agreement
state the same obligation in different language (Preamble, Section
2 and Article 6, Section 6), as do two provisions of the Local
Agreement (Articles II and XXXII).
/2/ Section 7117(c)(1) reads as follows:
Except in any case to which subsection (b) of this section
applies, if an agency involved in collective bargaining with an
exclusive representative alleges that the duty to bargain in good
faith does not extend to any matter, the exclusive representative
may appeal the allegation to the Authority in accordance with the
provisions of this subsection.
/3/ Section 7105(a)(2)(E) reads as follows:
. . . .
(a)(2) The Authority shall, to the extent provided in this chapter
and in accordance with regulations prescribed by the Authority--
. . . .
(E) resolve issues relating to the duty to bargain in good faith
under section 7117(c) of this title(.)