[ v31 p1123 ]
31:1123(94)AR
The decision of the Authority follows:
31 FLRA NO. 94
AKA: 0-AR-1444
31 FLRA 1123
Date: 13 APR 1988
UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL
Union
Case No. 0-AR-1444
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the
interest arbitration award of Arbitrator Ira F. Jaffe filed by
the Agency and 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 contract provisions which the Arbitrator imposed on
the parties to resolve their negotiation impasse. 1
In addition to the issue of whether the award is deficient
to the extent that it imposed specific provisions, the exceptions
present the following general issues: (1) whether the appropriate
mechanism for challenging the propriety of an interest
arbitration award is through the filing of exceptions to the
award under section 7122(a) of the Statute; (2) whether the
Federal Service Impasses Panel (the Panel) has the authority
under section 7119 to direct parties in a negotiation impasse to
use binding interest arbitration to resolve their impasse;
(3) whether the limitations on an arbitrator's authority in a
negotiation impasse to resolve agency allegations of
nonnegotiability concerning union proposals also apply to union
claims of nonnegotiability concerning agency proposals; and (4)
whether the Arbitrator exceeded his delegation of authority from
the Panel by failing to follow the Panel's instruction that he
could not resolve duty-to-bargain questions.
As to the general issues, we conclude, as follows: (1) the
appropriate mechanism for challenging interest arbitration awards
is through the filing of exceptions to the award under section
7122(a); (2) the Panel has the authority to direct parties
requesting its assistance to use binding interest arbitration to
resolve the impasse; (3) the limitations on an arbitrator's
authority in a negotiation impasse to resolve agency allegations
of nonnegotiability apply to union claims of nonnegotiability;
and (4) the Arbitrator did not exceed his delegation of authority
from the Panel.
As to whether the award is deficient to the extent that it
imposed specific provisions, we conclude that the award is not
deficient with respect to the following provisions: Article 3A,
Section A (arrangements for midterm impact bargaining); Article
3A, Section B (travel and per diem expenses for union
representatives); Article 4, Section H (inquiries or
investigations into employees' off-duty activities); Article 25,
Sections G - H (uniform allowances); Article 28, Section B
(postings of tours of duty); and Article 29, Section D (allowing
the wearing of beards by uniformed officers). Accordingly, we
deny the exceptions as to these provisions.
We conclude that the award is deficient as to Article 31,
Section B (representation of employees at investigatory
interviews) because the disputed portions of the article are
contrary to the Statute. Accordingly, we strike the disputed
portions from the award.
We also conclude that the award is deficient as to Article
32, Sections A, B, and F, which concern the release of
information which would affect the personal privacy of employees.
We find that the Arbitrator did not have the authority to impose
the disputed requirements of Article 32 on the Agency because the
Agency had raised duty-to-bargain questions concerning these
requirements and in imposing the requirements, the Arbitrator did
not apply existing Authority case law to resolve the Agency's
allegations. We strike these provisions from the award, and we
order that the parties resume bargaining on the disputed
requirements of Article 32 in accordance with applicable
Authority case law.
II. Background
After the parties were unable to reach full agreement in
their negotiations for a collective bargaining agreement, the
Union sought assistance from the Panel. The Panel recommended
that the parties submit their dispute to an arbitrator of their
choice for a final decision. The Agency objected. The Panel then
directed the parties to binding interest arbitration to resolve
their impasse and stated that the appropriate procedure to be
used was a matter for the Arbitrator to determine. The Panel also
stated that the Arbitrator could decline to consider any proposal
about which either party contends that it has no obligation to
bargain, but that he could also attempt to develop wording which
circumvents the negotiability issues.
The Arbitrator first attempted to resolve the matters at
impasse through the use of mediation. The Arbitrator resolved
issues which were not resolved through mediation by imposing
provisions on the parties as part of their collective bargaining
agreement.
The award imposes provisions for 16 articles, and the
exceptions contend that the award is deficient by imposing
provisions for 7 of these articles.
III. Discussion
A. The Appropriate Mechanism for Challenging Interest
Awards
The Agency acknowledges that the Authority has held that the
appropriate mechanism for challenging interest arbitration awards
is through the filing of exceptions to the award under section
7122(a). For example, Department of Defense Dependents Schools
(Alexandria, Virginia), 27 FLRA 586, 591-94 (1987), petition for
review filed sub nom. Department of Defense Dependents Schools v.
FLRA, No. 87-3126 (4th Cir. Aug. 17, 1987). However, the Agency
argues that we should reconsider this issue and asserts that the
Authority does not have jurisdiction to entertain exceptions to
interest arbitration awards under section 7122(a).
We find that the Agency's contentions provide no basis for
us to reconsider our decision in Department of Defense
Dependents Schools. We reaffirm our conclusion that interest
arbitration awards are reviewable by the Authority only after the
filing of exceptions to the award under section 7122(a).
B. Panel Directed Arbitration for Negotiation Impasses
The Agency asserts that the arbitration award is deficient
in its entirety because the Panel exceeded its authority under
section 7119 when it directed the parties to use binding interest
arbitration to resolve their impasse. We conclude that the Panel
was authorized to direct the parties to use binding interest
arbitration to resolve their impasse. Accordingly, we deny this
exception.
Section 7119(b) provides that parties have two alternatives
if they are unable to resolve their impasse through mediation:
(1) they may request that the Panel consider the matter; or (2)
they may agree to adopt a procedure for binding interest
arbitration, but only if the procedure is approved by the Panel.
Under these provisions, parties may use binding interest
arbitration to resolve their impasse rather than request Panel
assistance. The Panel, however, must approve the parties'
procedure. This requirement for Panel approval before the parties
may use binding interest arbitration is the only restriction on
the use of binding interest arbitration expressed in the
Statute.
When parties request the Panel to consider their impasse,
section 7119(c)(5)(A) provides that the Panel shall investigate
and consider the impasse. After investigation and consideration,
the Panel can either recommend procedures for the resolution of
the impasse or the Panel can assist the parties in resolving the
impasse. Under section 7119(c)(5)(B), if the parties do not
resolve their impasse through Panel-recommended procedures or
Panel assistance, the Panel is authorized to take whatever action
is necessary and not inconsistent with the Statute to resolve the
impasse. Under section 7119(c)(5)(C), the action taken by the
Panel constitutes the Panel's "final action" on the impasse and
is binding on the parties.
These provisions are plainly worded and, in our view,
indicate that the Panel is authorized to direct parties to use
binding interest arbitration to resolve their impasse. Nothing in
the Statute restricts that power. Although the Panel must
consider an impasse which has been referred to it, the Panel is
not compelled to provide direct assistance for resolution of the
impasse. Under section 7119(c)(5)(A), the Panel is
authorized to recommend procedures to the parties rather than
provide assistance. When the impasse is not resolved under the
Panel's recommended procedures, the Panel is authorized to direct
the parties to use binding interest arbitration. This is the
procedure used by the Panel in this case. The Panel is also
authorized to direct parties to use binding interest arbitration
when an impasse is not resolved after direct Panel assistance. In
both instances, the Panel may take final action by directing the
parties to use binding interest arbitration to resolve the
impasse and that action would be binding on the parties.
In arguing to the contrary, the Agency cites the following
portion of the legislative history:
4. Senate subsection (7222)(d) (concerning the powers and
duties of the Panel) states that arbitration or third-party fact
finding with recommendations to assist in the resolution of an
impasse may be used by the parties only when "authorized or
directed by the Panel." House subsection 7119(b) (also concerned
with the powers and duties of the Panel) states that after
voluntary arrangements prove unsuccessful, the parties may agree
to a procedure for binding arbitration, rather than to require
the services of the . . . Panel, "but only if the procedure is
approved by the Panel." The Senate recedes.
Civil Service Reform Act of 1978: Conference Report, H.R.
Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted in
Legislative History of the Federal Service Labor - Management
Relations Statute, Title VII of the Civil Service Reform Act of
1978, Comm. Print No. 96-7, 96th Cong., 1st Sess. 826 (1979)
(Legislative History). The Agency argues that the Senate
conferees' action shows that Congress intended to withhold
authority from the Panel to direct parties to use binding
arbitration. We disagree.
In our opinion, the Agency's interpretation of this
provision in the legislative history conflicts with the express
provisions of section 7119, which authorize the Panel to take
whatever action it deems necessary to resolve an impasse which
has been referred to it for its consideration. Absent provisions
in the Statute restricting the Panel's authority, the plain
meaning of these provisions is that once parties at impasse
request Panel assistance, the Panel has the authority to
direct parties to use binding interest arbitration. The
Conference Committee's explanation is consistent with this view.
The explanation refers to a restriction on the use of binding
interest arbitration in circumstances where the parties seek to
resolve the impasse on their own, "rather than to require the
services of the . . . Panel."
Furthermore, the Agency's interpretation of section 7119 is
not supported by the legislative history of the House bill. Under
Executive Order 11491, as amended, the Panel was authorized to
direct parties at impasse to binding interest arbitration. See,
for example, Federal Service Labor - Management Legislation:
Hearings on H.R. 13, H.R. 9784, H.R. 10700 and Related Bills
Before the Subcomm. on Manpower and Civil Service of the House
Comm. on Post Office and Civil Service, 93d Cong., 2d Sess. 38-39
(1974) (statement of Robert E. Hampton, Chairman, U.S. Civil
Service Commission). There is no indication in the legislative
history that either the House or the Senate intended to change
the Panel's authority to direct parties at impasse to use binding
interest arbitration.
Finally, in our view, Panel action in directing parties to
use binding interest arbitration to resolve an impasse
effectuates the purposes and policy of the Statute of
facilitating the settlement of disputes. Directing parties to
binding arbitration is one of a number of techniques the Panel
has used since 1979 to provide for resolution of negotiation
impasses under the Statute. See, for example, Civil Service
Oversight, 1980-Labor-Management Relations: Hearings Before the
House Committee on Post Office and Civil Service, 96th Cong., 2d
Sess. 9, 11 (1980) (statement of Howard W. Soloman, Executive
Director of the Federal Service Impasses Panel) (1980 Hearings);
Federal Labor Relations Authority and Federal Service Impasses
Panel, Seventh Annual Report 47-53 (Fiscal Year 1985). As
explained by Panel representatives, the success of the Panel in
providing for the resolution of the many impasses which are
referred to it depends on the variety of techniques it may apply
to an impasse and its ability to remain flexible and
unpredictable in applying many techniques. 1980 Hearings at 11.
C. Union Claims of Nonnegotiability
In Commander, Carswell Air Force Base, Texas and American
Federation of Government Employees, Local 1364, 31 FLRA 620
(1988), we addressed the issue of 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 concluded that it did not. We found that
nothing in the Statute warranted a finding that an arbitrator's
authority to resolve duty-to-bargain questions raised by a union
differs from an arbitrator's authority when the questions are
raised by an agency. Accordingly, we stated that we would apply
the same principles to determine whether an arbitrator's award
improperly addressed a duty-to-bargain issue whether the issue
was raised by an agency or a union.
D. Delegation of Authority from the Panel
The Agency contends that the Arbitrator exceeded the
delegation of authority from the Panel by failing to follow the
Panel's instructions that he could not resolve duty-to-bargain
questions. We deny this exception.
The Panel stated that the Arbitrator could determine the
manner in which he would resolve the impasse. Therefore, the
manner in which the Arbitrator chose to resolve the impasse was
not in excess of the authority delegated by the Panel. The issue
of whether the award is deficient because the Arbitrator resolved
a duty-to-bargain question is a separate issue which will be
addressed in the discussion of the exceptions to specific
proposals, which follows.
IV. Article 3A - Mid - Term Bargaining
Section A. The parties recognize that . . . during the life
of the agreement, the need will arise requiring the change of
existing Service regulations covering personnel policies,
practices and/or working conditions not covered by this
agreement. The Service shall present the changes it wishes to
make . . . to the Union. The Union will present its views and
concerns (which must be responsive to either the proposed change
or the impact of the proposed change) within a set time after
receiving notice from Management of the proposed change. In the
absence of timely Union proposals management will have no
obligation to enter into negotiations. . . . (Emphasis added.)
A. Positions of the Parties
The Union contends that the underscored wording in this
provision is outside its statutory duty to bargain because it requires the Union to waive its statutory rights to engage
in midterm bargaining. The Union asserts that the award is
deficient because (1) the Arbitrator exceeded his authority by
imposing this requirement on the Union despite its claims that
the requirement was outside its duty to bargain under the
Statute, and (2) the requirement conflicts with its right to
bargain under the Statute.
The Agency disputes the Union's views and contends that the
disputed language does not affect the Union's statutory
bargaining rights.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award
is deficient. In the decision accompanying the award, the
Arbitrator stated his understanding of the wording in question as
follows:
It must be underscored . . . that the Arbitrator's
understanding of the Service's proposal does not involve a waiver
of any rights possessed by the Union under the Statute to make
mid-term bargaining proposals concerning matters not covered by
the Agreement.
Arbitrator's Award at 19. Consistent with the Arbitrator's
determination, we conclude that this provision would not limit
the Union's statutory rights to engage in midterm bargaining.
Consequently, we find that the Arbitrator did not exceed his
authority by imposing this provision on the Union and further
that the provision does not conflict with the Union's statutory
rights. See National Treasury Employees Union and Internal
Revenue Service, 30 FLRA 1097 (1988); Social Security
Administration and National Council of SSA Field Operations
Locals (NCSSAFCL), American Federation of Government Employees,
AFL - CIO (AFGE), 25 FLRA 238, 244 (1987). Accordingly, we deny
the Union's exception.
V. Article 3A - Mid - Term Bargaining
Section B. Negotiation teams at the National, Regional, or
Sector level will be authorized an equal number of
representatives present on official time. Travel and per diem for
the Union representatives will be borne by the employer.
(Emphasis added.)
A. Positions of the Parties
The Agency contends that the underscored portion of this
provision is deficient because payment of travel and per diem
expenses for Union representatives conflicts with law and
Government-wide regulation. The Union disputes the Agency's
contentions.
B. Analysis and Conclusions
The Agency presents the same arguments which the Authority
rejected in determining that the travel and per diem expense
requirements of an analogous union proposal were negotiable in
National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA 6 (1986) (Customs Service),
enforced sub nom. Department of the Treasury, U.S. Customs
Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988). Accordingly,
for the reasons set forth in Customs Service, we conclude that
the requirements of this provision do not conflict with law or
Government-wide regulations. Therefore, we deny the Agency's
exception.
VI. Article 4 - Rights and Obligations
Section H. Any inquiry and investigation into allegation(s)
of off-duty misconduct must be based on activity which, if
verified, would have some nexus (i.e., some relationship) to the
employee's position. The Service and the Union agree that the
conduct of employees while off duty shall result in action
concerning the employees only when there is a nexus between that
conduct and the employee's official position. Employees will not
be subject to harassment or frivolous inquiries.
A. Positions of the Parties
The Agency contends that the award is deficient as to this
provision because (1) the Arbitrator lacked authority to impose
this provision on the Agency because the Agency contended before
the Arbitrator that the Union's proposal imposed by the
Arbitrator was outside the duty to bargain, and (2) the provision
imposes requirements on the Agency which are inconsistent with
law. The Union disputes the Agency's claims.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the
award is deficient as alleged.
The provision imposed by the Arbitrator was the Union's
proposal modified by the Union to alleviate the Agency's
negotiability concerns. As explained by the Arbitrator, the
modified provision would only restrict investigations or
inquiries into off-duty activities which "could not form the
basis for any action by the (Agency against the employee)" and
which "had no relationship whatsoever to the employee's ability
to continue in his position or to receive particular
assignments." Arbitrator's Award at 23. Thus, this provision does
not preclude investigations or inquiries into off-duty conduct
which might lead to some disciplinary action against the
employee. This asserted effect was the basis for the Agency's
allegation before the Arbitrator that the Union's proposal before
modification interfered with management's rights to discipline
and to determine internal security practices and conflicted with
regulations pertaining to disciplinary actions. Accordingly, we
find that the Arbitrator did not exceed his authority in imposing
the disputed proposal.
We also find that the provision as explained by the
Arbitrator does not interfere with: (1) Executive Order 10450 and
its implementing regulations, which pertain to national security;
(2) Executive Order 12564, which pertains to drug testing: or (3)
management's right to determine its internal security practices.
The Agency argues that the provision would restrict
investigations required or authorized by the executive orders and
regulations in the area of national security or drug testing. The
Agency, in addition, argues that the provision would restrict
investigations encompassed by management's right to determine its
internal security practices. However, the executive orders,
regulations, and investigations encompassed by management's
internal security practices all relate in some manner to conduct
which can form the basis for an agency action against an employee
or to the employment of the employee. Consequently, we find that
the award, by only restricting investigations and inquiries that
have no relationship to the employment of an employee, does not
prevent any investigation required or authorized by the executive
orders, the implementing regulations, or management's internal
security practices. Accordingly, we conclude that the award does
not conflict with the provisions cited by the Agency, and we deny
the Agency's exception.
VII. Article 25 - Uniforms
Section G. (1) The basic uniform allowance shall be $480 per
year, payable in quarterly installments of $120, except that
probationary employees shall receive additional supplements in
G(2).
(2) Employees in probationary positions will be paid, in
addition to the result (sic) allowance, a $240 supplement to help
defray uniform expenses during the first year. The supplement
will be paid within 30 days after the employee enters on duty
and the yearly allowance will be paid in a lump sum within thirty
days after the successful completion of the Border Patrol
Academy.
If the cost of uniforms increases by an amount greater than
10%, the parties will reopen this provision to negotiate an
appropriate increase to G(1) and G(2).
Section H. In the event the Employer is not legally able to
pay the uniform allowance in Section G, the Employer will furnish
to employees any and all uniform items the employees may be
required to wear.
A. Positions of the Parties
The Agency contends that the award is deficient as to these
provisions because (1) the Arbitrator lacked authority to impose
these provisions on the Agency because the Agency contended
before the Arbitrator that this matter was outside the duty to
bargain, and (2) the provision conflicts with 5 U.S.C. 5901. The
Union contends that the award is not deficient.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the
award is deficient as to these provisions.
Before the Arbitrator, the Agency alleged that a uniform
allowance in excess of $125 would be nonnegotiable because it
conflicted with the statutory maximum of 5 U.S.C. 5901. However,
as shown by the award and as conceded by the Agency in its
exception, the $125 statutory limit did not apply to
the Agency when the impasse over uniform allowances was before
the Arbitrator because the Agency had been exempted from the
limitation of section 5901 by Congress under continuing
resolutions. Accordingly, we reject the Agency's contention that
the Arbitrator exceeded his authority in imposing these
provisions.
The Agency further maintains, however, that unless further
legislation is enacted the disputed provision will be contrary to
law. We conclude that no basis is provided for finding that the
provision is contrary to section 5901. Further legislation has
been enacted and the statutory maximum of section 5901 does not
apply to the Agency. Congress has continued the Agency's
exemption from the statutory limit for uniform allowances set
forth in section 5901 through fiscal year 1988. Continuing
Appropriations Act of 1988, Pub. L. No. 100-202, 1988 U.S. Code
Cong. & Admin. News (101 Stat.) 1329-1, 1329-12. Accordingly, we
deny the Agency's exception.
VIII. Article 28 - Tours of Duty
Section B. Assigned tours of duty shall be posted five days
in advance in appropriate work areas covering at least a two week
period.
A. Positions of the Parties
The Agency contends that this provision would preclude
management from changing tours of duty as necessary after the
tours have been posted. For this reason, the Agency asserts that
the award is deficient as to this provision because (1) the
Arbitrator exceeded his authority by imposing the requirement on
the Agency because the Agency contended before the Arbitrator
that such a requirement was nonnegotiable, and (2) the provision
is inconsistent with 5 C.F.R. 610.121(a).
The Union contends that the award is not deficient as to
this provision because it does not impose a requirement which
conflicts with 5 C.F.R. 610.121(a).
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the
award is deficient as to this provision.
The record in this case shows that the provision to which
the Agency objects was part of the Agency's proposal.
Consequently, we reject the Agency's contention that the
Arbitrator exceeded his authority by imposing the provision.
Section 610.121(a) provides that assignments to tours of
duty are to be scheduled in advance of the workweek over periods
of not less than 1 week "(e)xcept when the head of an agency
determines that the agency would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased." In contending that the provision is contrary to 5
C.F.R. 610.121(a), the Agency argues that the provision prevents
management from changing tours of duty once they have been
posted. We reject this contention. The language of the provision
in no manner prevents management from changing tours of duty once
they have been posted. Moreover, in imposing the provision, the
Arbitrator explained that the Agency's proposal was adopted
because it was best designed to fulfill management's right to
schedule work and to grant the Agency flexibility to modify work
tours and hours of work. Arbitrator's Award at 50. Accordingly,
we deny the Agency's exception.
IX. Article 29 - Grooming and Appearance
Section D. Head and facial hair, including sideburns,
mustaches, and beards, shall be neatly trimmed and clean, and
shall neither interfere with the wearing of the required uniform
nor constitute a safety hazard or an impediment to the employee's
ability to properly perform his assigned duties. Hair will not be
worn below the outer portion of the shirt collar, nor completely
cover the ears, nor cover any portion of the eyebrows. (Emphasis
added.)
A. Positions of the Parties
The Agency contends that the award is deficient as to this
provision because the wearing of beards by uniformed officers of
the Border Patrol conflicts with management's right to determine
the methods and means of performing its work under section
7106(b)(1) of the Statute. The Union contends that the allowance
for beards in this provision is not contrary to section
7106(b)(1).
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the
award is deficient. In American Federation of Government
Employees, AFL - CIO, National Immigration and Naturalization
Service Council and U.S. Department of Justice,
Immigration and Naturalization Service, 8 FLRA 347, 351-53
(1982) (Proposal 3), enforcement denied as to other matters sub
nom. U.S. Department of Justice, Immigration and Naturalization
Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), the Authority
determined that a union proposal which would allow uniformed
immigration inspectors to wear beards was negotiable. The
Authority concluded that management's determination that its
uniformed officers must adhere to grooming standards to ensure
that such officers are readily recognized as representatives of
the Agency in their dealings with the public constituted a
determination regarding the means of performing the Agency's work
under section 7106(b)(1). However, the Authority concluded that
the proposal's provision for grooming standards, which permitted
beards and as a result varied from the Agency's standards, did
not impede the general public's ready recognition of such
uniformed officers as representatives of the Agency. Accordingly,
the Authority decided that the proposal did not interfere with
section 7106(b)(1).
This provision's allowance for beards is virtually identical
to the proposal in Immigration and Naturalization Service. The
Agency's position in this case is virtually identical to its
position in Immigration and Naturalization Service. The Agency
argues that the uniformed officers of the Border Patrol must
adhere to grooming standards established by the Agency, which do
not permit beards, in order to ensure their recognition as
officers of the Agency. The Agency also argues that in contrast
to immigration inspectors who were involved in Immigration and
Naturalization Service, this case involves uniformed officers of
the Border Patrol who are law enforcement officers. The Agency
maintains that the purpose of being readily identifiable as a law
enforcement officer is critical to the ability of such officers
to carry out their functions.
We find, as was found in Immigration and Naturalization
Service, that management's determination that Border Patrol
officers must adhere to grooming standards constitutes a
determination regarding the means of performing work under
section 7106(b)(1). However, we find that the provision imposed
by the Arbitrator does not conflict with section 7106(b)(1). In
our view, the Agency has failed to establish that the provision's
grooming standards, which permit beards and which vary from the
Agency's standards, would interfere with employees' assigned work
or affect the public's ability to recognize such officers as law
enforcement officers of the U.S. Government. Accordingly, we deny
the Agency's exception.
X. Article 31 - Formal meetings and Interviews
Section B. (1) The Service will provide the Union (or
another person of the employee's choice not involved in the
investigation) the opportunity to be represented at any
examination of an employee in the unit by a representative of the
Service if:
a. the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
b. the employee requests representation.
(3) The Service agrees prior to taking a written or sworn
statement from an employee, or when an employee is going to be
interrogated . . . , he will be advised in writing of his right
to be represented by the Union (or another person of the
employee's choice not involved in the investigation).
For purpose of this Section, the union waives any right it
may have under statute to be represented if the employee elects
to be represented by a person other than the union. (Emphasis
added.)
A. Positions of the Parties
Both parties contend that the award is deficient as to
respective underlined portions of Article 31 on the grounds that
(1) the Arbitrator lacked authority to impose these portions
because each party asserted before the Arbitrator that the
requirements contained in the respective portions were outside
the statutory duty to bargain, and (2) the provisions are
contrary to the Statute.
The Agency's exception concerns the wording which would
allow employees in investigations or interrogations encompassed
by section 7114(a)(2)(B) of the Statute to be represented by
persons who are not Union representatives. In its response to the
Agency's exception, the Union agrees that the provision disputed
by the Agency is contrary to the Statute. The Union's
exception concerns the wording which would require the Union to
waive its right to be represented in such an investigation or
interrogation when an employee is represented by a person who is
not a Union representative.
B. Analysis and Conclusions
The record in this matter shows that the requirements for
representation of employees by persons who are not Union
representatives originated in Agency proposals presented to the
Arbitrator. Accordingly, we reject the Agency's contention that
the Arbitrator exceeded his authority by imposing the provisions
disputed by the Agency.
Although the Arbitrator did not exceed his authority by
imposing the provisions disputed by the Agency, we agree with the
Agency and the Union that the provisions for representation of
employees in investigations or interrogations encompassed by
section 7114(a)(2)(B) by persons who are not Union
representatives conflict with section 7114 of the Statute. The
rights of the exclusive representative under section 7114(a) of
the Statute preclude an employee from being represented by other
than the exclusive representative in such investigations and
interrogations. Accordingly, the award is deficient as to these
provisions, and we will modify the award by striking this wording
from the provisions.
The wording which is excepted to by the Union has no meaning
once we strike the language from the provisions disputed by the
Agency. Accordingly, apart from any other considerations, we will
also strike this wording from the provisions.
XI. Article 32 - Disciplinary and Adverse Actions
Section A. . . . Information and documents which are not
releasable will not be used in taking a disciplinary or adverse
action. . . . .
Section B. When the Union is not designated as the
representative in a disciplinary or adverse action, copies of the
notice of the proposed action, final action taken, and the
decision(s) on any subsequent appeals, will be furnished to the
Union by certified mail. It is understood that such information
is sensitive in nature and will be used only for purposes
authorized by the CSRA and this Agreement. The Union agrees to
provide the Service with a list of representatives
designated to receive such notices.
Section F.5. (For a final decision on a written reprimand, a
suspension of 14 days or less, or a disciplinary transfer), (t)he
deciding official will consider only the reasons specified in the
notice (of proposed action) and the material in the investigatory
and disciplinary files, and shall consider any answer of the
employee and his representative.
A. Positions of the Parties
The Agency contends that the Arbitrator lacked the authority
to impose these provisions because the Agency had alleged that
the requirements were outside the Agency's statutory duty to
bargain. The Agency also contends that the provisions are
inconsistent with law and Government-wide regulation. The Union
contends that the award is not deficient as to these
provisions.
B. Analysis and Conclusions
These provisions impose requirements on the Agency which
were the subject of Agency allegations of nonnegotiability before
the Arbitrator. The Agency alleged that the requirements of
section A and section F.5 were nonnegotiable because they would
require release of certain medical information concerning
employees which is prohibited from disclosure by Government-wide
regulations. The Agency also alleged that the requirements of
section B were nonnegotiable because they would require release
of information affecting employees' personal privacy which is
prohibited from disclosure by the Privacy Act, 5 U.S.C.
552a(b).
In Commander, Carswell Air Force Base Texas and American
Federation of Government Employees, Local 1364, 31 FLRA 620
(1988), we reviewed the limitations on the authority of an
interest arbitrator to address duty-to-bargain questions. We
explained that an arbitrator may not impose a proposal as to
which a party has raised a duty-to-bargain issue unless the
arbitrator can resolve the duty-to-bargain question by relying on
existing Authority case law.
As to these disputed provisions, the Arbitrator clearly
imposed requirements on the Agency about which it had raised
duty-to-bargain questions before the Arbitrator.
Moreover, the Arbitrator did not impose these provisions by
relying on existing Authority case law to resolve the
negotiability issues raised by the Agency. In the decision
accompanying the award, the Arbitrator explicitly stated that he
would not attempt to resolve any claims of nonnegotiability in
this fashion.
In these circumstances, we find that the award as to these
provisions is deficient. The Arbitrator was not authorized to
impose the requirements of the provisions because the Agency had
raised duty-to-bargain questions and he did not resolve the
duty-to-bargain questions on the basis of existing Authority case
law. Accordingly, we will modify the award by striking these
disputed provisions, and we will order the parties to resume
bargaining on these matters consistent with Authority case law.
With respect to the matters in sections A and F.5, the parties
should refer to U.S. Department of Justice, Office of the U.S.
Attorney, Southern District of Florida, 29 FLRA 3, 14-15 (1987)
(Provision 7). With respect to the matters in section B, the
parties should refer to Department of Defense, Office of
Dependents Schools and Overseas Education Association, 28 FLRA
871, 881-83 (1987) (Article 9).
XII. Decision
For the reasons stated above, the award is modified to
strike the disputed portions of Article 31, Section B and Article
32, Section A, B, and F.5. We order that the parties return to
the bargaining table with a sincere resolve to reach agreement
consistent with the Statute on the matters involved in the
disputed provisions of Article 32.
Issued, Washington, D.C., April 13, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 Case No. 0-NG-1480, pending before the Authority,
also involves these provisions.