19:0238(26)AR - Federal Correctional Institution, Texarcana, TX, Federal Prison System and AFGE Local 2459, Texarcana, TX -- 1985 FLRAdec AR
[ v19 p238 ]
19:0238(26)AR
The decision of the Authority follows:
19 FLRA No. 26 FEDERAL CORRECTIONAL INSTITUTION, TEXARCANA, TEXAS, FEDERAL PRISON SYSTEM Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2459, TEXARCANA, TEXAS Union Case No. O-AR-788 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn 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 Union filed an opposition. /1/ The parties submitted to arbitration the issue of whether the Agency's disapproval of certain provisions of the parties' supplemental agreement was in accordance with the master agreement. The Agency disapproved the provisions for a variety of reasons, including as to Article 2, Section c; Article 6, Section c and Sections i(6) and (8); and Article 18, Sections b, c, d, and e that such provisions interfered with management rights under section 7106(a) of the Statute and therefore were not within the duty to bargain. The Arbitrator as his award, in relevant part, directed that the following provisions be included in the parties' supplemental agreement: Article 2, Section c and Article 6, Section c and Sections i(6) and (8) (which the Arbitrator erroneously identified as h(6) and (8)). As to Article 6, Section b the Arbitrator directed the parties to draft language in accordance with his instructions. As to Article 18 the Arbitrator noted that the parties are in basic agreement. As to Article 19, Section g (erroneously identified as (8)), the Arbitrator noted that the parties had agreed to redraft the language. As to Article 21, Section c the Arbitrator noted that the parties had agreed to amended language. The Arbitrator also retained jurisdiction for purposes of implementation of the award. In its first exception the Agency contends that the award is contrary to section 7119(b)(2) of the Statute because the Arbitrator engaged in binding arbitration of a negotiation impasse without the approval of the Federal Service Impasses Panel. The Authority, however, concludes that this exception provides no basis for finding the award deficient. Contrary to the Agency's argument, the Authority finds that the Arbitrator appropriately resolved grievance dispute submitted to arbitration under the master agreement of whether under the controlling provisions of that agreement, the Agency's disapproval of provisions of the supplemental agreement was proper. See, e.g., Congressional Research Employees Association and Library of Congress, 18 FLRA No. 5 (1985), slip op. at 4 n.2. Thus, the Agency fails to establish in its exception that the Arbitrator resolved a negotiation impasse, and this exception is accordingly denied. With respect to the Arbitrator's award as it relates to Article 6, Section b; Article 19, Section g; and Article 21, Section c, the Agency contends in its exceptions that by directing the parties to draft new language, the award does not draw its essence from the master collective bargaining agreement; the Arbitrator exceeded his authority; and the award is incomplete. The Authority, however, concludes that these exceptions provide no basis for finding the award deficient. With respect to the first and second of these exceptions, the Agency essentially maintains that the master agreement does not authorize drafting of new language as a resolution of a dispute over provisions of a supplemental agreement. The master agreement in relevant part provides: "Disputes as to whether a matter is improper for inclusion in a supplemental agreement shall be resolved by arbitration in accordance with Article 32 (the arbitration provision of the grievance procedure)." The Authority finds that it has not been shown, as alleged by the Agency, that the award in any manner evidences an infidelity to the master agreement or is in disregard of a plain and specific limitation of that agreement. Similarly, with the Arbitrator directing the redrafting in accordance with his instructions or the prior agreement of the parties, the Agency has in no manner established that the award is incomplete. Accordingly, these exceptions are denied. With respect to the Arbitrator's award as it further relates to Article 19, Section g and Article 21, Section c, the Agency contends that the award is based on a nonfact because the Arbitrator erroneously found that the parties had agreed to renegotiate this language. The Authority, however, concludes that this exception provides no basis for finding the award deficient. It has in no manner been established that the Arbitrator's finding in this respect is "concededly erroneous." To the contrary, the Agency's allegation is nothing more than disagreement with the Arbitrator's findings of fact and in no manner establishes that the central fact underlying the award is concededly erroneous and in effect is a gross mistake of fact but for which the result would have been different. See, e.g., International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680 (1984). Accordingly, this exception is denied. With respect to the Arbitrator's award as it relates to Article 2, Section c; Article 6, Section c and Sections i(6) and (8); and Article 18, Sections b, c, d, and e, the Agency in its exception essentially contends that the award is contrary to the Statute because the Arbitrator resolved issues relating to the duty to bargain under the Statute. The Authority agrees. The Authority in Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Council of Locals, No. 214, 18 FLRA No. 81 (1985), found an interest arbitration award deficient as contrary to section 7105(a)(2)(E) of the Statute /2/ when the arbitrator ordered that the parties' agreement contain a provision despite the agency's allegation that the matter was negotiable only at the election of the agency under section 7106(b)(1) of the Statute. The Authority held the agency's allegation presented an issue relating to the duty to bargain in good faith under the Statute and must have been resolved only by an appeal to the Authority as set out in section 7117(c). Similarly, the Authority held in Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA No. 74 (1984), that issues relating to the duty to bargain in good faith under section 7117(c) cannot be resolved by an arbitrator in the guise of a grievance under the negotiated grievance procedure of the collective bargaining agreement between the exclusive representative and the agency. Thus, in terms of this case, although the Arbitrator could properly resolve whether the Agency's disapproval of provisions of the supplemental agreement was proper under the terms of the master agreement, see Congressional Research Employees Association, 18 FLRA No. 5, the Arbitrator could not properly resolve any issues relating to the duty to bargain in good faith under the Statute. However, by effectively rejecting the Agency's disapproval of the enumerated provisions, which disapproval was based on section 7106(a), the Arbitrator necessarily decided that the Agency had an obligation to bargain over the disputed provisions. However, the Agency's disapproval of these provisions as not negotiable by reason of section 7106(a) of the Statute presents an issue relating to the duty to bargain in good faith under the Statute and must be resolved only by an appeal to the Authority as set forth in section 7117(c). Accordingly, that portion of the Arbitrator's award pertaining to Article 2, Section c; Article 6, Section c and Sections i(6) and (8); and Article 18, Sections b, c, d, and e is deficient as contrary to section 7105(a)(2)(E) of the Statute and is struck from the award. /3/ Issued, Washington, D.C., July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its opposition, the Union argues that the exceptions must be dismissed as premature under the Authority's Rules and Regulations because the Arbitrator retained jurisdiction. However, the retention of jurisdiction to resolve possible problems of implementation provides no basis for finding premature the Agency's exceptions to the award. See Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 14 FLRA 444 (1984). /2/ Section 7105(a)(2)(E) provides: . . . . (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(.) /3/ In view of this decision, it is unnecessary to address the other exceptions relating to this portion of the award. In addition, in determining that the Arbitrator was without authority to decide the negotiability issues in this matter, the Authority makes no determination on whether the disputed provisions of the supplemental agreement interfere with management's rights under section 7106(a) of the Statute.