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50 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MARION, INDIANA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 1020

(Union)

0-AR-2633

_____

DECISION

January 25, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator William Belshaw 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's opposition was filed untimely and will not be considered in this decision.⁽¹⁾

The Arbitrator determined that certain proposals, which the Union submitted during local supplemental negotiations, did not conflict with the parties' master collective bargaining agreement.

For the following reasons, we find that the Agency's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

During local negotiations, the Agency asserted that 3 Union proposals, consisting of 83 subparts (hereinafter the subparts are referred to as proposals), were inconsistent with the parties' master agreement and, therefore, were "non[]negotiable" under Article 5, Section 2B of that agreement.⁽²⁾ Attachment to Award at 1. The parties submitted the dispute to arbitration, where they agreed to the Arbitrator's formulation of the issue as whether the disputed proposals were "negotiable" under the agreement. Award at 4.

The Arbitrator stated that his role was to determine whether the disputed proposals "probably would or presumably would" conflict with the master agreement and, in a chart attached to the award, the Arbitrator indicated whether each proposal was negotiable or nonnegotiable. Id. at 7 (emphasis omitted). The Arbitrator found 65 of the 83 proposals negotiable.

III. Exceptions

The Agency argues that, with respect to the proposals found by the Arbitrator to be negotiable under the terms of the parties' agreement, the award fails to draw its essence from the parties' agreement because the proposals conflict with the agreement. The Agency also argues that the award conflicts with law and regulation based on alleged conflicts between 5 of the proposals and various management rights under the Statute as well as other laws and regulations.

IV. Analysis and Conclusions

A. The Award Draws Its Essence from the Parties' Agreement

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 706 (1991).

The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement and his findings that the disputed proposals did not conflict with the agreement are irrational, unfounded, implausible, or in manifest disregard of the agreement. Consequently, the Agency's exception does not provide a basis for finding the award deficient. See id. at 711.

B. Contrary To Law

As noted previously, and consistent with the Arbitrator's interpretation of it, Article 5, Section 2B of the parties' agreement does not encompass negotiability disputes within the meaning of section 7117 of the Statute. Moreover, based on our reading of the award as a whole, we do not construe the award as encompassing any determinations regarding conflicts between the proposals and law or regulation.⁽³⁾ Accordingly, the award does not resolve questions concerning negotiability of the disputed proposals under section 7117 of the Statute, and the Agency's exception that the award conflicts with law and regulation provides no basis for finding the award deficient.⁽⁴⁾

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union concedes that the opposition is untimely and that the reasons it was filed late "[do] not justify the late response[.]" Response at 2. As such, the Union has not established extraordinary circumstances under section 2429.23(b) of our Rules and Regulations which warrant a waiver of the expired time limit. See Department of the Treasury, U.S. Customs Service and U.S. Customs Service Region IX, Chicago, Illinois, 34 FLRA 76 (1989).

2. Article 5, Section 2B provides, in pertinent part, that:

Negotiability disputes as to whether certain proposals would conflict with the provisions of the Master Agreement shall be jointly submitted to arbitration upon the proponent's request.

Exceptions, Attachment 4 at 5.

Consistent with the Arbitrator's express finding that, under this provision, his role was limited to determining whether the disputed proposals conflicted with the agreement, we do not construe the phrase "negotiability disputes," as used in the provision, as encompassing negotiability disputes under section 7117 of the Statute. Instead, the phrase encompasses only disputes regarding consistency between proposals and the parties' agreement. See American Federation of Government Employees, Local 1020 and U.S. Department of Veterans Affairs, Medical Center, Marion, Indiana, 47 FLRA 258, 259 (1993) (AFGE, Local 1020) (dispute over whether proposals were covered by agreement not cognizable under section 7117; negotiability appeal under the Statute dismissed as to those proposals).

3. We note that the Authority has exclusive jurisdiction under section 7105(a)(2)(E) to make negotiability determinations. For example, U.S. Department of the Air Force, HQ Air Force Materiel Command and American Federation of Government Employees, Council 214, 49 FLRA 1111, 1118 (1994). Compare, American Federation of Government Employees, Local 3723 and U.S. Department of the Navy, Navy Exchange Service Center, 49 FLRA 1256, 1258-59 (1994) (Authority has exclusive jurisdiction to make unit determinations; award encompassing such a determination set aside as contrary to law).

4. In this regard, nothing in the award precludes the Agency from alleging that any proposal is nonnegotiable under section 7117 or the Union from thereafter filing a negotiability appeal. See AFGE, Local 1020, 47 FLRA at 259.

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