Air Force Logistics Command and AFGE Council 214 (Authority decision, June 21, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An interest arbitrator required full time official time for union representatives despite an agency negotiability objection. The Authority found that deciding whether the proposal was within the statutory duty to bargain belonged to its negotiability review process. It set aside the award.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); negotiability under §§ 7105(a)(2)(E) and 7117(c).
• Outcome: Interest arbitration award set aside.
• Key point: The arbitrator could not resolve a statutory negotiability dispute.

Full text (FLRA public release)

[ v18 p710 ]

18:0710(81)AR

The decision of the Authority follows:

18 FLRA No. 81

DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF LOCALS, NO. 214
Union

Case No. 0-AR-952

DECISION

This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator Jerome H. Ross 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 opposition.

The dispute before the Arbitrator concerned the impasse which arose during the parties' negotiation of a new Master Labor Agreement. The Federal Service Impasses Panel directed that the impasse be referred to mediation-arbitration for resolution. Negotiations under the Arbitrator's direction produced agreement on all issues except a Union proposal that 100 percent official time be authorized for certain Union representatives. Before the Arbitrator, the Agency contended, as it had earlier, that a proposal authorizing 100 percent official time for Union representatives would interfere with management's right under section 7106(b)(1) of the Statute to determine the number of employees assigned to an organizational subdivision or tour of duty and therefore was not within the duty to bargain. /1/ Nevertheless, the Arbitrator determined that allowing full-time Union representatives is the "more reasonable approach to official time." Accordingly, as his award, he directed that the parties' agreement include the following provision:

Full Time Representatives

In addition to representatives authorized official time provided above, the Union is hereby authorized the following numbers of representatives with 100 percent official time:

(a) 2 100% representatives at Warner Robins AFB, Kelly AFB, Tinker AFB, Hill AFB, and McClelland AFB.

(b) 1 100% representative at Newark Air Station and Wright-Patterson AFB.

(c) 1/2 100% representative at Battle Creek, Michigan.

In one of its exceptions, the Agency contends that the award is contrary to the Statute. Specifically, the Agency maintains on the basis of Interpretation and Guidance, 11 FLRA 626 (1983), that the Arbitrator resolved an issue relating to the duty to bargain which under section 7105(a)(2)(E) of the Statute /2/ must be resolved only by the Authority. The Authority agrees.

The Authority in Interpretation and Guidance, 11 FLRA 626 (1983), held that section 7119 of the Statute does not authorize the Federal Service Impasses Panel to resolve issues as to whether there is an obligation to bargain under the Statute. Correspondingly, an interest arbitrator acting pursuant to a direction of the Panel is likewise without authority to resolve such issues. Interpretation and Guidance, 16 FLRA No. 75, slip op. at 2 n.2 (1984). Rather, negotiability disputes which arise between an agency and an exclusive representative under section 7117(c)(1) must be resolved only by the Authority as required by section 7105(a)(2)(E). Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA No. 74, slip op. at 2-4 (1984). In terms of this case, by deciding that the parties' agreement should contain a provision authorizing 100 percent official time for Union representatives, despite the Agency's allegation that the matter was negotiable only at the election of the Agency, the Arbitrator necessarily determined that the Agency had an obligation under the Statute to bargain over the Union's proposal. However, the Agency's allegation that the proposal was not negotiable by reason of section 7106(b)(1) of the Statute presents an issue relating to the duty to bargain in good faith under the Statute and may be resolved only by an appeal to the Authority as set forth in section 7117(c). Accordingly, the Arbitrator's award by resolving that negotiability issue is contrary to section 7105(a)(2)(E) of the Statute and is set aside. /3/ Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Agency had first alleged that such a proposal was not within the duty to bargain during negotiations for the new agreement after which, but prior to the referral in this case to arbitration, the Union filed a petition for review of a negotiability issue which is currently pending before the Authority as Case No. 0-NG-1002.

/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 to the award. In addition, in determining that the Arbitrator was without authority to decide the negotiability issue in this matter, the Authority makes no determination on whether the Union's proposal interferes with management's right to determine the number of employees assigned to an organizational subdivision or tour of duty and is therefore subject to bargaining only at the election of the Agency. Rather, that issue will be properly resolved in the pending negotiability case.