ACTION and American Federation of State, County and Municipal Employees, Local 2023 (Authority decision, September 22, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

ACTION and the union had agreed to a minimum twenty-one-day specific notice before reduction in force actions. When the union later proposed ninety days and the agency refused to bargain, an arbitrator denied the union’s grievance. The union argued that the arbitrator had denied it a fair hearing on the need for a longer period. The Authority found no proof that the arbitrator prevented relevant evidence and denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; award rejecting further notice period bargaining stands.
• Key point: The union did not establish that it was denied a chance to present evidence on the already negotiated notice period.

Full text (FLRA public release)

[ v13 p74 ]

13:0074(18)AR

The decision of the Authority follows:

13 FLRA No. 18

ACTION
Agency

and

AMERICAN FEDERATION OF
STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
LOCAL 2023
Union

Case No. O-AR-345

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Joseph M. Sharnoff 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 Agency filed an opposition.

The dispute in this matter concerns the Agency's refusal to bargain over a Union proposal pertaining to a general reduction-in-force (RIF) notice. On September 4, 1981, the parties agreed to revisions to the Agency regulation respecting RIF procedures. Among the agreed upon revisions was that no proposed action would be taken until the affected employee had a minimum of 21 days specific notice of what the action is to be. On September 21, 1981, the Agency issued a general RIF notice which stated that any affected employee would be given a specific notice at lease 21 days prior to the effective date of any action. The Union presented proposals for bargaining over the impact and implementation of the notice including a proposal that no RIF action may be taken until the affected employee has received a minimum of 90 days of specific notice. The Agency refused to bargain over a specific notice period contending that the agreement on a specific notice period of 21 days obviated any further obligation to bargain on this point. A grievance was filed and submitted to arbitration claiming that the Agency's refusal to bargain violated the parties' collective bargaining agreement.

The Arbitrator noted that the Union had not presented any evidence or argument as to why a greater minimum specific notice period was required as to the RIF action in dispute. Thus, he determined that the minimum specific notice period which already had been negotiated and on which agreement had been reached in revising the Agency regulation was not subject to renegotiation in this case. Accordingly, the Arbitrator ruled the Agency had not violated the agreement by refusing to bargain over the specific notice period, and as the award the Arbitrator denied the grievance.

In its exception the Union contends that the Arbitrator denied it a fair hearing. Specifically, the Union maintains that the Arbitrator decided the case on the basis of whether a greater specific notice period in the agency regulations was merited, and the Union claims that it failed to present evidence on the merits of its proposal because assertedly the Arbitrator acquiesced in its statement that such evidence would be irrelevant. The Union contends that once the Arbitrator determined that the merits of the Union's proposal were at issue, he was obligated to have given the parties an opportunity to introduce evidence on this point. The Union therefore argues that by relying instead on the lack of evidence, the Arbitrator denied it a fair hearing.

The Authority concludes that the exception provides no basis for finding the award deficient. As noted, the Agency denied the grievance on the basis that the agreement on a minimum specific notice period in the agency regulations obviated any further bargaining obligation in this respect, and the issue squarely presented to the Arbitrator concerned whether there was nevertheless an obligation under the parties' collective bargaining agreement to bargain over a greater minimum specific notice period. Finding that the Union had not presented evidence or argument as to why the already agreed upon specific notice period should not be applicable, the Arbitrator ruled that the Agency had not violated the agreement by refusing to renegotiate a subject which had already been negotiated and on which agreement had already been reached. The Union's contention pertaining to evidence of the "merits of the Union proposal" fails to establish that the Arbitrator denied the Union a fair hearing. In this regard, it has not been substantiated that the Arbitrator made representations to the Union on which it justifiably relied that evidence and argument as to the applicability of the agreed upon specific notice period were not pertinent, relevant, or material to resolving the grievance. Furthermore, the Authority takes notice of the Arbitrator's denial of the Union's motion to reopen the arbitration hearing in which the Arbitrator unequivocally states:

The issue concerning the extent of the parties' bargaining obligation over the specific notice period was squarely presented to the Arbitrator for resolution. The Union was not denied the opportunity to present such evidence or argument which it felt was relevant to that issue; for whatever reason, the Union did not present evidence or argue that the 21-day specific notice period provided was not applicable to the particular RIF in question. Further, there has been no showing that such evidence was unavailable to the Union at the time of the hearing.

For these reasons, the Union's exception is denied. Issued, Washington, D.C., September 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY