31:0620(37)AR - Commander, Carswell AFB, TX and AFGE Local 1364 -- 1988 FLRAdec AR

  31 FLRA NO. 37

                  31 FLRA 620 (1988)

    23 FEB 1988

COMMANDER CARSWELL AIR FORCE
BASE, TEXAS

                  Agency

        and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1364

                  Union

Case No. 0-AR-1380

DECISION

     This matter is before the Authority on exceptions to the
award of Arbitrator Albert V. Carter filed by the Union 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 award consists of a number of bench
decisions issued by the Arbitrator on proposed contract articles
submitted to him by the parties in an interest arbitration
proceeding.

     This case presents an issue as to the authority of an
interest arbitrator to consider duty to bargain issues raised by
a union. We conclude that interest arbitrators and the Federal
Service Impasses Panel (the Panel) have the same authority under
the Statute to consider duty to bargain issues which arise in a
negotiation impasse. Interest arbitrators and the Panel may apply
existing Authority case law in resolving impasses.

     We conclude that the portion of the Arbitrator's award
pertaining to the number and location of Union stewards in the
workplace (Article 5, Section 1) is deficient because the
Arbitrator did not have the authority to resolve the impasse as
to that matter. Accordingly, we will modify that portion of the
award by striking Article 5, Section 1, and we will order the
parties to resume negotiations on that matter. We find that the
Union's exceptions concerning other portions of the award provide
no basis for finding those portions of the award to be deficient.


     II. Background and Arbitrator's Award

     The parties reached impasse in bargaining on a new
collective bargaining agreement and requested the Panel to
approve a procedure for binding mediation/arbitration to resolve
the impasse. The Panel approved the parties' request. Thereafter,
the parties selected Arbitrator Carter as a mediator-arbitrator
to resolve the dispute.

     After 1 day of mediation, the parties agreed that the
mediation process was not effective in resolving their
differences and decided to submit the disputed proposals to
arbitration. They agreed that Arbitrator Carter would hold
hearings to resolve, by bench decision, each of the proposed
contractual articles in dispute. The Arbitrator determined the
issue before him as follows:

     Which of the Union's proposed contractual articles, if any,
and which of the Employer's proposed contractual articles, if
any, shall be accepted and considered binding on both parties?

     During the afternoon of the second day of the
mediation-arbitration proceeding, after the arbitration
proceeding had begun, the Union's Chief Negotiator left the room,
accusing the Agency of "failing to negotiate in good faith."
Arbitrator's Decision at 3. On the third day, the Union was
represented for approximately 2 hours by its Vice President, who
did not return to the hearing after a short break. Id. That
afternoon, the Arbitrator received word that the Union's Chief
Negotiator was ill and unable to attend any further meetings. The
Union's Chief Negotiator did not claim illness at any time during
his participation in the proceeding, nor did he notify the
Arbitrator at any time during the second day that he would be
unable to attend on the third day. Arbitrator's Decision at
5-6.

     After receiving notification that the Union's Chief
Negotiator would not attend the proceedings, the Arbitrator
considered relevant factors relating to an ex parte proceeding,
including the claim of illness and the Union's failure to request
an adjournment or delay. The Arbitrator decided to continue the
proceeding in the absence of the Union. Id. at 6.

     Thereafter, the Arbitrator continued the proceeding under
the format to which the parties had agreed. He required
the Agency to submit each of the proposed articles in the same
fashion as if the Union were present. The Arbitrator considered
each proposal in turn, and reviewed the proposals submitted by
the Union. The Arbitrator ordered that 19 articles submitted by
the Agency--in addition to the provisions previously agreed to by
the parties--be included in the parties' agreement.

     The Union filed exceptions to the Arbitrator's award. The
Agency did not file an opposition to the exceptions.

     III. Discussion

     A. Authority of an Interest Arbitrator to Address Duty to
Bargain Issues

     Interest arbitrators are not authorized to make
negotiability rulings in order to resolve questions concerning
the duty to bargain under the Statute. Social Security
Administration and National Council of SSA Field Operations
Locals (NCSSAFOL), American Federation of Government Employees,
AFL - CIO (AFGE), 25 FLRA  238 (1987) (SSA). In SSA, 25 FLRA  at
239-40, the Authority stated:

     In . . . cases involving allegations of nonnegotiability
made in an interest arbitration proceeding, we will carefully
examine the record of the case and the arbitrator's award. This
examination will be made to determine whether the arbitrator made
a negotiability ruling or whether the arbitrator merely applied
existing Authority case law to resolve the impasse. In the event
of the former action, the award will be set aside . . . . In the
latter, we will resolve the exceptions on the merits and sustain
the award if existing case law is correctly applied.

     In cases where the award is set aside because an interest
arbitrator improperly asserted jurisdiction over and decided a
duty to bargain question, we may require the parties to resume
negotiations over the matter. United States Department of
Agriculture, Food and Nutrition service, Midwest Region and
National Treasury Employees Union, 28 FLRA  580, 583 (1987).

     If a proposal raising a duty to bargain issue is presented
to an interest arbitrator and that issue cannot be 
resolved on the basis of existing Authority case law, the
arbitrator may not impose that proposal. If the arbitrator
determines that he or she can resolve the duty to bargain issue
and does so in an award, we will consider the following questions
in order to determine whether the arbitrator applied existing
Authority case law in resolving an impasse: (1) was the proposal
raising the duty to bargain issue substantively identical to one
which was previously addressed by the Authority? (2) were the
parties' contentions before the arbitrator similar to ones
addressed by the Authority in previous cases? (3) did the
arbitrator cite and discuss applicable Authority case law and
other relevant precedent? and (4) are there any other
considerations which lead to a conclusion that the arbitrator
correctly or incorrectly considered the duty to bargain issue?

     We expect interest arbitrators, when presented with claims
that matters are outside the duty to bargain, to consider these
questions and to address them in their awards in order to provide
the parties and the Authority with the basis on which they have
resolved the claim. The parties likewise have an obligation to
provide interest arbitrators with relevant precedent on
particular duty to bargain issues. Consistent with our case law
as set forth above, if exceptions to an interest arbitration
award are filed with the Authority, we will examine the record to
determine whether the arbitrator applied existing Authority
precedent to resolve an impasse. If an examination of the award
supports the conclusion that the arbitrator applied existing
precedent, we will resolve the exceptions on the merits by
determining whether the arbitrator correctly applied the
precedent.

     B. Authority of the Federal Service Impasses Address Duty to
Bargain Issues

     Duty to bargain issues in connection with the resolution of
negotiation impasses can arise not only before interest
arbitrators, but before the Federal Service Impasses Panel as
well. The Panel's role in resolving negotiation impasses is an
important one for the effectuation of a successful Federal sector
labor-management relations program. It is also important that the
labor-management community understand the obligations and
limitations relating to the appropriate procedures to resolve
impasses which include duty to bargain issues. Accordingly, we
set forth here our view as to the Panel's authority in this area.


     In Interpretation and Guidance, 11 FLRA  626 (1983), the
Authority concluded that the Panel's authority under section 7119
of the Statute to assist the parties in resolving an impasse
through whatever methods or procedures the Panel considers
appropriate did not include resolving questions concerning the
underlying obligation to bargain. Subsequently, the Authority
stated that interest arbitrators have the same authority as the
Panel in resolving these issues. 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  710, 711 (1985).

     The view that the resolution of duty to bargain issues
arising in the context of specific proposals is a matter reserved
to the Authority under the Statute has been affirmed in the
courts. For example, in American Federation of Government
Employees v. FLRA,  778 F.2d 850, 854 (D.C. Cir. 1985), the court
stated that issues of negotiability are to be resolved by the
Authority, not the Panel. Similarly, in Department of Defense,
Army Air - Force Exchange Service v. FLRA,  659 F.2d 1140, 1146
at n.32 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1983), the
court noted that in determining the negotiability of disputed
proposals properly brought before it under section 7117(c), the
Authority must determine whether union proposals, as they are
actually drafted, satisfy the negotiability standards of the
Statute. For the reasons discussed below, we conclude that not
every claim in an impasse resolution proceeding that a proposal
is outside the duty to bargain must be addressed by the Authority
instead of the Panel or an interest arbitrator.

     There is now a substantial body of Authority precedent
resolving numerous duty to bargain issues. That precedent is
intended to provide guidance not only to the parties to the
bargaining process, but also to third parties like the Panel and
interest arbitrators whose function is to resolve negotiation
impasses. In our view, the purposes of the Statute are best
furthered by encouraging third party consideration and
application of this precedent so as to assist in the resolution
of negotiation impasses which raise substantively identical duty
to bargain issues to those already decided by the Authority. No
useful purpose is served by requiring the Panel or interest
arbitrators to refrain from applying precedent merely in order to
permit the Authority to address a substantively identical
proposal which varies slightly in wording from a proposal
previously addressed by the Authority. Accordingly, not
every claim in an impasse resolution proceeding that a proposal
raises a duty to bargain issue must be brought to the Authority
for resolution. In the circumstances outlined above, a proposal
as to which such claims are made may be resolved by the Panel or
an interest arbitrator without requiring the Authority to
consider the proposal.

     We believe that the Panel and interest arbitrators have the
same authority under the Statute to consider duty to bargain
issues which arise in a negotiation impasse. That is, if the
Panel can resolve an impasse relating to a proposal concerning a
duty to bargain issue by applying existing Authority case law,
the Panel may do so. In our view, this approach is consistent
with the Statute because it encourages prompt resolution of
impasses involving duty to bargain issues which have already been
ruled on by the Authority. This approach also preserves the
Panel's discretion as to whether or not to assert jurisdiction,
and, as intended by the Statute, ensures that undecided duty to
bargain issues will be resolved by the Authority.

     IV. First Exception

     A. Contentions

     The Union contends that the award of the following portion
of Article 5, Section 1 is contrary to law:

     The number and location of Stewards will be subject to
mutual agreement between the Employer and the Union so that the
employees will have access to a Steward in their working area.

     The Union contends that this provision is contrary to law
because it involved the designation of Union representatives, a
right reserved to the Union under the Statute. The Union contends
that it chose not to bargain on this provision, which was
proposed by management. Therefore, the Union claims that the
Arbitrator exceeded his authority when he required the parties to
incorporate this provision in their contract. The Union contends
that only the Authority "can resolve negotiability disputes."
Union's Exceptions at 1.

     B. The Union's Claim of Nonnegotiability

     The Union's exception in this case presents the issue
whether the authority of an interest arbitrator to resolve duty
to bargain issues depends on whether the claim of
nonnegotiability is made by an agency or a union. We conclude
that it does not.

     The principles discussed above concerning the extent of an
arbitrator's authority in this area apply equally to claims of
nonnegotiability made by unions as well as to claims made by
agencies. In our view, nothing in the Statute warrants a finding
that an arbitrator's authority to resolve duty to bargain
questions raised by a union differs from the arbitrator's
authority when the questions are raised by an agency. We conclude
that an arbitrator's authority to resolve duty to bargain issues
is the same whether the issues are raised by agencies or
unions.

     Where exceptions to interest arbitration awards raise either
union or agency claims that an arbitrator's award improperly
addressed a duty to bargain issue, we will apply the principles
discussed above. We note that in SSA, 25 FLRA  at 243-44, with
regard to a union's claim that an arbitrator improperly ruled on
a negotiability matter, the Authority stated that under section
7117(c)(1) of the Statute only an agency may make an allegation
of nonnegotiability and therefore the arbitrator did not make an
improper negotiability determination. To the extent that that
statement suggests that union claims of nonnegotiability will be
treated differently from agency claims in the resolution of
exceptions to interest arbitration proceedings, it will no longer
be followed.

     C. Whether the Arbitrator Correctly Addressed the Union's
Claim of Nonnegotiability

     We find that the portion of the award relating to Article 5,
Section 1 is deficient. The union claims, without challenge, that
it asserted during the arbitration proceeding that this section
was "nonnegotiable as being a right reserved to the (U)nion," and
that the Arbitrator, in spite of the Union's claim, imposed this
provision on the parties.

     As we noted above, in cases involving duty to bargain
questions which arise in an interest arbitration proceeding, we
will carefully examine the record in the case, including the
arbitrator's award, to determine whether the arbitrator applied
existing case law in resolving the issue. In this case, the
Arbitrator did not address the Union's claim in this decision,
did not address any relevant Authority precedent, and did not
provide any reasons for imposing this provision on the parties.
We find, therefore, that by imposing Article 5, Section 1 on the
parties, the Arbitrator resolved a negotiability dispute between
the parties, contrary to an arbitrator's authority under the
Statute. Accordingly, we will modify the award by striking
Article 5, Section 1, and will order the parties to resume
negotiations on the matter addressed in this provision. Insofar
as Article 5, Section 1 concerns the designation of union
representatives, the parties should refer to applicable Authority
precedent, including American Federation of Government Employees,
AFL - CIO, 4 FLRA  272 (1980).

     V. Second Exception

     A. Contentions

     The Union contends that the award of Article 13, Section 6,
Steps 1, 2, and 3 is contrary to section 7121 of the Statute
because this procedure restricts the processing of grievances to
certain Union officials. For example, this provision requires
Union stewards to handle grievances at Steps 1 and 2, and
requires the Union president or chief steward to process
grievances at Step 3. The pertinent text of Article 13 is set
forth in the Appendix.

     B. Discussion

     We conclude that the Arbitrator's award with respect to
Article 13, Section 6, Steps 1, 2, and 3 is not contrary to
law.

     In National Federation of Federal Employees, Local 29 and
Department of Defense, HQ, U.S. Military Entrance Processing
Command, 29 FLRA  726 (1987) (Provision 1), the Authority found
negotiable a provision which prohibited management officials from
delegating authority to decide a grievance to an official who had
decided the issue at a previous step. The Authority held that the
"requirement of section 7121 that the parties' mandatory
grievance procedure be negotiated carves out an exception to
management's right to assign work under section
7106(a)(2)(B) of the Statute." Id. at 728. The Authority noted
that the intent of the provision was to negotiate on the
structure of the grievance procedure; that is, to ensure that
different officials consider a grievance at successive steps of
the procedure. The Authority also found that the provision was
"consistent with the intent of Congress that the parties'
grievance procedure be a negotiated procedure." Id. at 729.

     We find that Article 13, Section 6, Steps 1, 2, and 3, like
the provision in U.S. Military Entrance Processing Command,
concerns the structure of the grievance procedure. In our view,
the rationale applied in U.S. Military Entrance Processing
Command is applicable to this case. We find, therefore, that in
this limited circumstance--when parties are negotiating over the
structure of the grievance procedure--a union's right to
designate its representatives is subject to the requirement of
section 7121 of the Statute that the parties negotiate over the
structure of grievance procedures. Accordingly, the exception
must be denied.

     VI. Third Exception

     A. Contentions

     The Union contends that certain other sections of the award,
namely Article 5, Section 3; Article 13, Section 2; and Article
28, Section 12, are contrary to law. The text of these provisions
is set forth in the Appendix.

     B. Discussion

     We find that the Union's exception provides no basis for
finding that award deficient. The Union objects to Article 5,
Section 3 because it allows management to deny the Union's
request for official time when the workload requires the presence
of employees or Union representatives at the worksite. The Union
asserts that the provision is contrary to Authority precedent
dealing with official time.

     The Union's assertion is without merit. The Authority has
explained that an exclusive representative is not entitled to an
allocation of official time without regard to management's needs
and requirements regarding the performance of its assigned work.
See Overseas Federation of Teachers and Department of Defense
Dependent Schools, Mediterranean Region, APO New York, 21 FLRA 
640 (1986). See also U.S. Small Business Administration and
American Federation of  Government Employees, Local 2532,
30  FLRA  75 (1987). Article 5, Section 3, which allows the
Agency to consider its workload requirements when granting
requests for official time, is not contrary to law.

     The Union also alleges that Article 13, Section 2, which
defines "grievance," is contrary to the definition of grievance
in 5 U.S.C. 7103(a)(9). However, the Union has failed to show how
the provision is contrary to section 7103(a)(9). Further, as to
the Union's assertion that Article 28, Section 12, which provides
for advanced sick leave, is contrary to 5 U.S.C. 6307(c), we find
that the provision is consistent with law. Section 6307(c) of
Title 5 of the United States Code provides: "When required by the
exigencies of the situation, a maximum of 30  days sick leave
with pay may be advanced for serious disabilities or ailment(.)"
Section 12 of Article 28 similarly provides for advanced sick
leave up to 30  days and also establishes the conditions under
which the Agency will grant a request for sick leave. The
provision is consistent with 5 U.S.C. 6307(c) because it allows
the Agency to determine when and whether the grant of sick leave
is required by the "exigencies of the situation."

     VII. Fourth Exception

     A. Contentions

     The Union contends that the Arbitrator denied the Union a
fair and impartial hearing by (1) conducting the hearing in an
arbitrary and capricious manner; and (2) refusing to delay the
hearing in spite of the Union representative's claim of
illness.

     B. Discussion

     We conclude that this exception fails to establish that the
award is deficient. As the Authority has previously indicated, an
arbitration award will be found deficient if it is established
that the arbitrator failed to conduct a fair hearing. U.S.
Department of Labor and American Federation of Government
Employees, Local No. 644, NCFLL, 12 FLRA  639, 641 (1983). There
is nothing in the record before us to indicate that the
Arbitrator acted improperly so as to deny the Union a fair
hearing. It is well established that an arbitrator has
considerable latitude in the conduct of a hearing. The fact that
the Arbitrator conducted the hearing in a manner  which
one party finds objectionable does not support a contention that
the Arbitrator denied the party a fair hearing. U.S. Department
of Health and Human Services, Social Security Administration and
American Federation of Government Employees, Local No. 547, 24
FLRA  959 (1986).

     As to the Union's claim that the Arbitrator denied it a fair
hearing by refusing to delay the hearing, the record shows that
the Arbitrator considered the circumstances surrounding the Union
Chief Negotiator's absence from the hearing, and, after finding
that no request for adjournment or delay had been made by either
party, decided to continue the hearing. Further, awards resulting
from ex parte hearings have been sustained by the Authority on
the rationale that since the losing party had a chance to be
heard but refused to participate, it should not later complain
because it chose to stay away. See, for example, Warner Robins
Air Logistics Center, Department of the Air Force, Warner Robins,
Georgia and American Federation of Government Employees, Local
No. 987, 24 FLRA  968 (1986).

     Therefore, we find that the Union's exception constitutes
nothing more than disagreement with the Arbitrator's
determination. Once the parties to a collective bargaining
agreement submit the subject matter of a dispute to arbitration,
procedural questions which grow out of the dispute and bear on
its resolution should be left to the arbitrator. Department of
Health and Human Services, social Security Administration and
American Federation of Government Employees, AFL - CIO, 27 FLRA 
706, 710 (1987). Thus, it is properly the function of the
Arbitrator to determine whether a proceeding should be delayed.
Accordingly, this exception must be denied.

     VIII. Fifth Exception

     A. Contentions

     The Union contends that the Arbitrator exceeded his
authority by: (1) failing to consider the Union's proposals; (2)
allowing management to introduce new matters; and (3) deleting
sections previously agreed to by the parties.

     B. Discussion

     The Union has failed to establish that the Arbitrator's
award is deficient. The Union is attempting to relitigate the
merits of the case before the Authority and the thrust of the Union's exception constitutes mere disagreement with the
Arbitrator's resolution of the issues before him. This
disagreement provides no basis for finding an award deficient
under the Statute. See American Federation of Government
Employees and Social Security Administration, 25 FLRA  173, 177
(1987). Accordingly, this exception must be denied.

     IX. Decision

     The portion of the Arbitrator's award concerning Article 5,
Section 1 is set aside. With respect to this provision, we order
that the parties resume negotiations on the matter addressed in
Article 5, Section 1. The remaining exceptions are denied.

     Issued, Washington, D.C., February 23, 1988

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

     Article 5, Union Representation

     Section 3. Should it be necessary for a Union Representative
to leave the work area, he/she must request permission from their
immediate supervisor or designee and must schedule any
meeting/visitors as far in advance as possible with the
supervisor in the section to be visited. The Representative will
give his/her supervisor as much notice as possible when
requesting permission to leave the work area. Permission will be
granted unless an emergency or workload requirement requires the
presence of the Union Representative or the employee to
accomplish their normal duties. The Representative must report to
his/her immediate supervisor or designee as soon as he/she
returns to work area and annotate the amount of time and purpose
for which the time was used on the Use of Official Time for
Representational Functions, AF Form 1510. The Union agrees that
representatives will guard against the use of excessive time in
performing duties considered appropriate by this agreement.

     Article 13, Grievance Procedures

     Section 2. A grievance is defined to be any dispute or
complaint between the Employer and the Union or an employee or
employees covered by this agreement; which may pertain to any of
the following:

     (1) Any matter involving the interpretation, application, or
violation of this agreement.

     (2) The Employer's interpretation and application of Agency
policies, regulations, and practices affecting working conditions
not specifically covered by this agreement. The right to grieve
does not extend to the content of the regulations, but only to
its interpretation and application by the Employer.

     Section 6. - Step 1 - The grievance will first be taken up
orally by the concerned employee or steward with the appropriate
supervisor in an attempt to settle the matter. Grievances must be
presented within fifteen (15) calendar days from the date the
employee or the Union became aware of the grievance. The steward
may be present if the employee so desires. However, if an
employee(s) presents a grievance directly to the Employer for
adjustment consistent with the terms of this agreement, the Union
shall have an observer present on official time. 

     Step 2 - If the matter is not satisfactorily settled
following the initial discussion, the steward may, within five
(5) working days, submit the matter in writing to the squadron
commander or equivalent. The grievance must contain the specific
nature of the complaint; time, date, place, and the corrective
action must be personal to the grievant(s). The squadron
commander or equivalent or his representative will meet with the
steward and the aggrieved employee(s) within five (5) working
days after receipt of the grievance. The squadron commander or
equivalent will give the steward his written answer within five
(5) working days after the meeting.

     Step 3 - If the grievance is not settled by the squadron
commander, the Union President or Chief Steward may, within five
(5) working days, forward the grievance to the Group Commander
for further consideration. The Group Commander or his designee
will review the grievance and give the Union President or Chief
Steward his written answer within fifteen (15) working days after
receipt of the grievance.

     Article 28, Leave

     Section 12. Advanced sick leave up to thirty (30)  days may
be granted subject to following conditions: (1) total employment
record and past record of sick leave usage justifies such action;
(2) the absence from duty because of illness is for a period of
five (5) or more consecutive work days; (3) the application for
leave (Standard Form 71) is supported by a medical certificate
containing clear and comprehensive explanation of the illness;
(4) the circumstances are such that repayment to the Employer of
the advanced leave can reasonably be expected; (5) employee is
serving under a career or a career conditional appointment and
has been under the Civil Service Retirement Act for one year or
more.