[ v26 p563 ]
26:0563(66)AR
The decision of the Authority follows:
26 FLRA No. 66
U.S. DEPARTMENT OF ENERGY
WASHINGTON, D.C.
Agency
and
NATIONAL TREASURY EMPLOYEES UNION
Union
Case No. 0-AR-1189
DECISION
I. Statement of the Case
This matter is before the Authority on the exceptions to the interest
arbitration award of Arbitrator Howard W. Solomon 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. The Union filed an opposition.
II. Background and Arbitrator's Award
The National Treasury Employees Union requested the assistance of the
Federal Service Impasses Panel (the Panel) in a bargaining impasse with
the Agency concerning ground rules for negotiation of a new collective
bargaining agreement. The Panel recommended that the dispute be
referred to Mr. Solomon, Executive Director of the Panel, for
mediation-arbitration. Mr. Solomon was authorized by the Panel to
mediate with respect to all issues and to render a decision as an
arbitrator on any that remained unresolved. During the course of
mediation, the parties reached agreement on several issues. However,
the dispute persisted as to a number of other issues, including an issue
concerning the submission of Union proposals on alternative work
schedules for employees. Mr. Solomon proceeded to resolve all of the
remaining issues through arbitration.
The dispute before us concerns the ground rules for negotiating
alternative work schedules (AWS). The Union argued for a rule to the
effect that if the Agency alleged that an AWS proposal would have an
adverse impact on the Agency, the Union would be permitted to submit
another AWS proposal. The Union contended that such a ground rule was
necessary because of the difficulty it encountered in bargaining with
the Agency over alternative work schedules during the term of the
parties' then current agreement.
The Agency opposed the proposed rule. According to the Arbitrator,
although the agency did not dispute its duty to bargain concerning the
proposal, the Agency claimed that it had some "questions" about the
legality of the proposed rule. Moreover, the Agency asserted that
unfair labor practice procedures were the best way to resolve any
dispute over Agency unwillingness to consider a second AWS proposal from
the Union if the Agency claimed that a previous proposal would have an
adverse impact.
The Arbitrator found that it was unlikely that the subject of
alternative work schedules could be successfully negotiated without an
exchange of proposals and counter-proposals. The Arbitrator determined
that the Agency's position would frustrate the bargaining process. He
concluded that the Union's proposed ground rule, which affords it an
opportunity to make a second proposal, clearly provided a more
reasonable basis for resolving the issue. Therefore, in his decision of
June 27, 1986, the Arbitrator directed the parties to adopt the ground
rule proposed by the Union. The Arbitrator also established a time
limit for the Agency to declare whether a particular AWS proposal of the
Union had any adverse impact.
The ground rule provided as follows:
No counter proposals shall extend the scope of that party's
original proposal. Except, however, that any AWS proposal found
to have adverse agency impact may be replaced by another AWS
proposal. Any declaration of adverse impact on the Union's May
23, 1986, AWS proposal shall be submitted to the Union in writing
no later than July 11, 1986.
The Agency filed exceptions to the underlined portion of the
provision.
III. Exceptions
In its exceptions, the Agency contends that the disputed portion of
the ground rule violates the Federal Employees Flexible and Compressed
Work Schedules Act of 1982, 5 U.S.C. Sections 3401, 6101 and note, 6106,
6120-6133, which was made permanent under the Federal Employees Flexible
and Compressed Work Schedules Act of 1982, Permanent Authority (the 1986
Act), Pub. L. No. 99-196, 99 Stat. 1350. More specifically, the Agency
argues that the award is contrary to 5 U.S.C. Sections 6131(a) and
6131(c)(3)(A), because it would preclude management, after July 11,
1986, from declaring that the Union's AWS proposal has an adverse Agency
impact.
Second, the Agency contends that the award violates section 2472.2(j)
of the Panel's Rules and Regulations, which defines "impasse" in AWS
disputes. The Agency argues that the regulatory provision contemplates
that the parties should meet to discuss any proposal before the Agency
declares an adverse impact and that the disputed ground rule would
require a declaration of adverse impact before the parties discuss the
proposal. The Agency further argues that under the regulation, the
decision as to when to declare an adverse impact is up to the Agency and
not the Arbitrator. Third and finally, the Agency contends that the
Arbitrator improperly resolved an issue relating to the duty to bargain
which, under section 7105(a)(2)(E) of the Statute, must be resolved only
by the Authority.
IV. Analysis and Conclusions
We find that the Agency has misconstrued the Arbitrator's award and
has failed to establish that the award is deficient as alleged.
First, the ground rule established by the Arbitrator does not
preclude the Agency from declaring that the particular alternative work
schedule proposed by the Union would have an adverse impact. Rather,
the ground rule merely established a due date for the Agency to make a
declaration regarding the Union's May 23, 1986 proposal. The Agency had
approximately two weeks from the date of the Arbitrator's June 27, 1986
award to evaluate the proposal and make such a declaration if it wished
to do so. Moreover, the Agency had an ample opportunity to consider the
proposal prior to the award. The ground rule therefore clearly does
nothing more than facilitate bargaining on the Union's AWS prposal.
We have determined that Congress intended that the use of alternative
work schedules was to be fully negotiable, subject only to the
provisions of the Federal Employees Flexible and Compressed Work
Schedules Act of 1982 itself. American Federation of Government
Employees Local 1934 and Department of the Air Force, 3415 ABG, Lowry
AFB, Colorado, 23 FLRA No. 107 (1986), slip op. at 2. We further held
in that decision that under 5 U.S.C. Section 6131(a)-(c), an agency may
object to the negotiation of an AWS proposed by a labor organization
only when the agency can establish that the proposed schedule will have
an adverse agency impact; and that if the parties need assistance in
resolving a dispute concerning an alleged adverse impact they must
present their dispute to the Federal Service Impasses Panel in
accordance with 5 U.S.C. Section 6131(c)(2) and part 2472 of the Panel's
Rules and Regulations. Id. at 3. Of course, as we held in National
Treasury Employees Union, Chapter 27, and Department of the Treasury,
Internal Revenue Service, 25 FLRA No. 27 (1987), issues as to whether a
proposed alternative work schedule conflicts with the 1982 Act are
appealable to the Authority under section 7117 of the Statute. Slip.
op. at 3.
We find that the ground rule established by the Arbitrator in this
case is consistent with the pertinent provisions and legislative history
of the 1982 Act. The rule expressly provided for the Agency to exercise
its right to declare that the AWS proposal of the Union would have an
adverse impact and the rule also facilitates bargaining on the proposal.
Moreover, the ground rule would cease to have any effect after
negotiations are completed. If the Union's AWS proposal became part of
the parties' new collective bargaining agreement through the negotiation
process, the rule would not operate to prevent the Agency from
subsequently seeking to terminate the provision on the basis that the
provision had an adverse impact and the Panel would not be prevented
from resolving any dispute concerning such an allegation. We conclude
that the Arbitrator's award is not contrary to 5 U.S.C. Section 6131 as
the Agency alleges.
We likewise conclude that the Agency has failed to demonstrate that
the ground rule established by the Arbitrator is contrary to the Panel's
Rules and Regulations. As stated above, the rule expressly provided for
the Agency to declare an adverse impact regarding the Union's AWS
proposal if it wished to do so and further provided ample opportunity
for the Agency to make such an allegation. Nothing in the Arbitrator's
award prohibited the parties from discussing both the proposal and any
Agency allegation or from referring any related dispute to the Panel for
resolution in accordance with Panel procedures.
Finally, we conclude that the Agency has failed to establish that the
Arbitrator's award is contrary to section 7105(a)(2)(E) of the Statute
because the Arbitrator assertedly resolved a negotiability issue. The
Agency fails to provide any support for its allegation. Moreover, it
does not appear from the Arbitrator's award that the Arbitrator
addressed any negotiability issue whatsoever in resolving the dispute
before him. On the contrary, the award indicates that the Agency did
not raise any such issue but apparently merely stated that it had some
"questions" about the matter. Such a statement does not raise any
negotiability issues and the Agency's bare assertion to the contrary
provides no basis for finding the Arbitrator's award deficient under the
Statute.
V. Decision
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., April 8, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY