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56 FLRA No. 54
U.S. Department of The Treasury, IRS, Washington, D.C. and National Treasury Employees Union (Kaplan, Arbitrator), 0-AR-3172 (Decided May 10, 2000)
The Arbitrator determined that the Agency had agreed to a contractual election to bargain over matters covered under section 7106(b)(1) of the Statute and that this election obligated the Agency to proceed to the Federal Service Impasses Panel or other third-party impasse procedures to resolve the parties' bargaining impasse. The Authority concluded that the Agency failed to establish that the award was deficient.
The Authority noted that under section 2429.5 of its Regulations, it will not consider issues that could have been, but were not, raised before the arbitrator. Therefore, issues raised by the Agency on appeal that it conceded could have been raised earlier were found to be barred by section 2429.5. The Authority also rejected the claim that the award failed to draw its essence from the agreement.
Also rejected was the allegation that the award was contrary to law. The Authority noted that matters covered under section 7106(b)(1) are negotiable only at the election of the agency. However, when an agency does elect to bargain and a provision that concerns a matter covered under section 7106(b)(1) is included in an agreement, the provision is enforceable through grievance arbitration. A contractual provision constituting an election to bargain over matters covered under section 7106(b)(1) is, itself, a matter covered under section 7106(b)(1) and is enforceable by an arbitrator. Section 7106(b)(1) is an exception to section 7106(a) such that bargaining over matters encompassed by section 7106(b)(1) is permitted notwithstanding that such matters also affect rights under section 7106(a).
Once the parties have negotiated a collective bargaining agreement that is submitted to arbitration on the issue of whether the parties have agreed to matters covered under section 7106(b)(1), the meaning of the agreement determines whether there has been an election to bargain. That is, whether there has been bargaining and agreement on any matters covered under section 7106(b)(1) rests entirely on the arbitrator's construction of the agreement.
The Authority added that the Agency's reliance on a right to withdraw from bargaining over matters covered under section 7106(b)(1) prior to agreement is misplaced because the Arbitrator found that the Agency had already agreed on matters covered under section 7106(b)(1). Lastly, the Authority concluded that the award was not contrary to the ··___··OPM guidance.