National Border Patrol Council and National Immigration and Naturalization Service Council (Union) and United States Department of Justice, Immigration and Naturalization Service (Activity)



[ v03 p401 ]
03:0401(62)AR
The decision of the Authority follows:


 3 FLRA No. 62
 
 NATIONAL BORDER PATROL COUNCIL
 AND NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE COUNCIL
 Union
 
 and
 
 UNITED STATES DEPARTMENT OF
 JUSTICE, IMMIGRATION AND
 NATURALIZATION SERVICE
 Activity
 
                                            Case No. 0-AR-12
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR JAMES M. HARKLESS FILED BY THE UNION /1/ UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE IMMIGRATION AND NATURALIZATION
 SERVICE (THE ACTIVITY) SENT COPIES OF PROPOSED REVISIONS TO OPERATING
 INSTRUCTION 287.10, WHICH DEALS WITH THE AGENCY PROFESSIONAL INTEGRITY
 PROGRAM, TO THE UNION.  AFTER THE UNION WAS GIVEN THE OPPORTUNITY TO
 COMMENT ON THE PROPOSED REVISIONS, THE ACTIVITY NOTIFIED THE UNION THAT
 THE OPERATING INSTRUCTION WAS BEING IMPLEMENTED WITH SOME OF THE UNION'S
 SUGGESTIONS BEING INCORPORATED INTO IT, BUT WITH OTHER SUGGESTIONS BEING
 REJECTED "AFTER DELIBERATION ON THE MERITS OF EACH."
 
    THE UNION PROTESTED THAT IMPLEMENTATION OF THE REVISED OPERATING
 INSTRUCTION, WITHOUT NEGOTIATIONS OVER THE DIFFERENCES REMAINING BETWEEN
 THE PARTIES, VIOLATED THE ACTIVITY'S BARGAINING OBLIGATION UNDER THEIR
 NEGOTIATED AGREEMENT.  THE MATTER ULTIMATELY WAS SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR STATED THAT THE TWO ISSUES BEFORE HIM WERE:
 
    1.  WHETHER THE AGENCY WAS UNDER A CONTRACTUAL DUTY TO BARGAIN WITH
 THE (UNION) OVER THE O.I. BEFORE IMPLEMENTING IT;  (AND)
 
    2.  IF SO, WHETHER THE AGENCY LIVED UP TO THAT DUTY IN THIS CASE.
 
    THE ARBITRATOR DENIED THE GRIEVANCES, HOLDING THAT THE ACTIVITY WAS
 NOT REQUIRED TO BARGAIN WITH THE UNION ABOUT THE INCLUSIONS WHICH THE
 UNION WISHED TO MAKE IN OPERATING INSTRUCTION 287.10 AND THAT THEREFORE
 THE ACTIVITY DID NOT VIOLATE THE PARTIES' AGREEMENT IN UNILATERALLY
 PUTTING THE OPERATING INSTRUCTION INTO EFFECT.
 
    IN HIS REASONING, THE ARBITRATOR STATED THAT WHEN THE MATTER WAS
 SUBMITTED TO ARBITRATION, ONLY TWO PROVISIONS OF THE OPERATING
 INSTRUCTIONS REMAINED IN DISPUTE:  (1) A PROPOSAL CONCERNING THE
 POTENTIAL EFFECT ON "WHISTLE-BLOWERS" AND (2) A PROPOSAL CONCERNING
 ALLEGATIONS BY EMPLOYEES AGAINST ALIENS WHO ARE ABOUT TO DEPART.  THE
 ARBITRATOR SET FORTH ARTICLE 3, SECTION G OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT, AS FOLLOWS:
 
    THE PARTIES RECOGNIZE THAT FROM TIME TO TIME DURING THE LIEF OF THE
 AGREEMENT, THE NEED WILL ARISE REQUIRING THE CHANGE OF EXISTING AGENCY
 REGULATIONS COVERING PERSONNEL POLICIES, PRACTICES AND/OR WORKING
 CONDITIONS NOT COVERED BY THIS AGREEMENT. THE AGENCY SHALL PRESENT
 THE CHANGES IT WISHES TO MAKE TO EXISTING RULES, REGULATIONS AND
 EXISTING PRACTICES TO THE UNION IN WRITING.  THE UNION WILL PRESENT ITS VIEWS
 (WHICH MUST BE RESPONSIVE TO EITHER THE PROPOSED CHANGE OR THE IMPACT OF
 THE PROPOSED CHANGE) TO THE AGENCY WITHIN 30 CALENDAR DAYS OF RECEIPT OF
 THE PROPOSED CHANGE.  REASONABLE EXTENSIONS TO THIS TIME LIMIT MAY BE
 GRANTED ON REQUEST.  CHANGES IN NATIONAL POLICY SHALL BE REFERRED TO THE
 PRESIDENT OF EACH NATIONAL COUNCIL OF SUCH CHANGES IMPACT ON EITHER OF THE
 NATIONAL COUNCILS.
 
    IF DISAGREEMENT EXISTS, EITHER THE AGENCY OR THE UNION MAY SERVE
 NOTICE ON THE OTHER OF ITS INTEREST TO ENTER INTO FORMAL NEGOTIATIONS ON THE
 SUBJECT MATTER. SUCH NEGOTIATIONS MUST BEGIN WITHIN 30 CALENDAR DAYS OF THE
 DATE THE AGENCY RECEIVES NOTICE FROM THE UNION THAT IT DOES NOT AGREE WITH
 PROPOSED CHANGES.
 
    CITING THIS ARTICLE, THE ARBITRATOR STATED:
 
    THERE IS LITTLE DISPUTE THAT THE PROVISION FOR MID-TERM NEGOTIATIONS
 SET OUT IN ARTICLE 3, SECTION G OF THE AGREEMENT ONLY OBLIGATES THE (ACTIVITY)
 TO BARGAIN OVER MATTERS WHICH ARE MANDATORY SUBJECTS FOR NEGOTIATION
 UNDER THE EXECUTIVE ORDER . . .  THE O.I. INVOLVED HERE DEALS WITH THE INTERNAL
 INVESTIGATIONS PROGRAM OF THE (ACTIVITY) TO INSURE THE PROFESSIONAL INTEGRITY
 OF THE EMPLOYEES WHO ARE ENGAGED IN IMPORTANT LAW ENFORCEMENT FUNCTIONS. 
 AS SUCH, IT IS A MANAGEMENT DOCUMENT DELINEATING CERTAIN INTERNAL ACTIVITY
 PROCEDURES.  IT IS PRIMARILY DIRECTED AT BETTER ORGANIZATION AND DEFINING
 RESPONSIBILITIES UNDER THIS PROGRAM.  THE REVISIONS DO NOT APPEAR TO CHANGE
 EXISTING RIGHTS OF EMPLOYEES UNDER THE AGREEMENT OR APPLICABLE CIVIL
 SERVICE  REGULATIONS. CONSEQUENTLY, THE ARBITRATOR IS PERSUADED THAT IT
 FALLS OUTSIDE THE SCOPE OF MANDATORY BARGAINING UNDER THE PROVISIONS OF
 SECTIONS 11(B) AND 12(B)(5) OF THE EXECUTIVE ORDER.
 
    . . . (T)HE (ACTIVITY) CORRECTLY POINTS OUT THAT THE LANGUAGE
 INCORPORATED IN THE OPENING POLICY STATEMENT OF THE O.I. IS NEITHER MORE NOR
 LESS THAN IS CONTAINED IN THE STANDARDS OF CONDUCT BINDING ON ALL FEDERAL
 EMPLOYEES UNDER FEDERAL LAW.  SINCE THIS AMOUNTS TO NO CHANGE IN EXISTING
 POLICY, THE (ACTIVITY) WAS NOT REQUIRED TO BARGAIN IT IN MID-TERM OF THE
 AGREEMENT EVEN IF THE O.I. WERE WITHIN THE SCOPE OF MANDATORY BARGAINING.
 ALSO, ASIDE FROM CONSIDERATIONS OF SECTIONS 11(B) AND 12(B)(5), THE PROPOSAL
 (CONCERNING ALLEGATIONS BY EMPLOYEES AGAINST ALIENS WHO ARE ABOUT TO
 DEPART) . . . DOES NOT PURPORT TO REGULATE EMPLOYEE CONDUCT AND NEED NOT BE
 BARGAINED OVER AS A PRECONDITION TO IMPOSING A PROGRAM DESIGNED TO
 REGULATE EMPLOYEES.  (ARBITRATOR'S AWARD AT 6-7.)
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411(1978),
 WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 44 F.R. 44741,
 REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE UNION SEEKS AUTHORITY
 ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTIONS DISCUSSED
 BELOW.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW OR REGULATION, OR ON OTHER GROUNDS SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
 EXECUTIVE ORDER NO. 11491, AS AMENDED, AND TITLE VII OF THE CIVIL
 SERVICE REFORM ACT OF 1978.  IN SUPPORT OF THIS EXCEPTION, THE UNION
 CONTENDS THAT THE ARBITRATOR FAILED TO CORRECTLY INTERPRET THE EXECUTIVE
 ORDER WITH RESPECT TO THE NEGOTIABILITY OF THE UNION'S PROPOSALS, THAT
 THE TWO UNION PROPOSALS AT ISSUE WERE NEGOTIABLE, AND THAT THE
 ARBITRATOR ERRED IN HIS INTERPRETATION OF THE PARTIES' AGREEMENT BY
 FINDING THAT THE ACTIVITY WAS NOT REQUIRED TO BARGAIN OVER THE INCLUSION
 OF THE PROPOSALS INTO OPERATING INSTRUCTION 287.10.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES LAW.  IN THIS CASE, HOWEVER,
 THE UNION'S PETITION DOES NOT CONTAIN A DESCRIPTION OF FACTS AND
 CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  IN THIS REGARD, THE UNION DOES
 NOT SHOW IN WHAT MANNER THE ARBITRATOR'S AWARD, IN WHICH HE DETERMINED
 THAT THE ACTIVITY DID NOT VIOLATE THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT WHEN IT PUT THE OPERATING INSTRUCTION INTO EFFECT, VIOLATES
 EITHER THE EXECUTIVE ORDER OR THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.  THE UNION STATES ONLY THAT THE PROPOSALS ARE
 NEGOTIABLE AND CITES CERTAIN NATIONAL LABOR RELATIONS BOARD CASES TO
 SUPPORT ITS POSITION.  THE CASES CITED ARE INAPPOSITE TO THE QUESTION OF
 WHETHER A PARTICULAR MATTER IS NEGOTIABLE OR NONNEGOTIABLE UNDER THE
 EXECUTIVE ORDER OR THE STATUTE. THUS THE UNION PROVIDES NO SUPPORT FOR
 ITS GENERAL ASSERTION THAT "(T)HE ARBITRATOR FAILED TO CORRECTLY
 INTERPRET THE EXECUTIVE ORDER . . . " FURTHER, AS TO THE UNION'S
 ASSERTION IN SUPPORT OF THIS EXCEPTION THAT "(T)HE ARBITRATOR COMMITTED
 A GROSS MISINTERPRETATION OF THE CONTRACT," SUCH AN ASSERTION DOES NOT
 PROVIDE A BASIS FOR REVIEW OF AN ARBITRATION AWARD.  UNITED STATES ARMY
 MISSILE MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, CASE NO. O-AR-7, 2 FLRA
 NO. 60 (JAN. 17, 1980).  THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES
 NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE
 AMENDED RULES.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
 FAILED TO CONDUCT A FAIR HEARING.  IN SUPPORT OF THIS EXCEPTION, THE
 UNION CONTENDS THAT THE ARBITRATOR ALLOWED AN ISSUE TO BE HEARD THAT WAS
 NEVER RAISED DURING THE GRIEVANCE PROCESS.  IN THIS REGARD, THE UNION
 REFERS TO ADMISSION BY THE ARBITRATOR OF EVIDENCE GOING TO THE
 ACTIVITY'S DEFENSE THAT THE MATTERS OVER WHICH THE UNION SOUGHT TO
 BARGAIN WERE NONNEGOTIABLE.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE EXCEPTION TO THE AWARD PRESENTS A GROUND
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 IN THE PRIVATE SECTOR, FEDERAL COURTS HAVE SUSTAINED CHALLENGES TO
 ARBITRATION AWARDS WHEN IT HAS BEEN ALLEGED THAT THE PETITION WAS NOT
 ACCORDED A FAIR HEARING PRIMARILY IN CASES WHERE IT APPEARS THAT THE
 ARBITRATOR'S CHALLENGED RULINGS PRECLUDED CONSIDERATION OF ALL THE
 PERTINENT AND MATERIAL EVIDENCE.  SEE HARVEY ALUMINUM V. UNITED
 STEELWORKERS OF AMERICA, AFL-CIO, 236 F.SUPP. 488, 493-95 (C.D. CALIF.
 1967).  SEE GENERALLY SHOPPING CART, INC. V. AMALGAMATED FOOD EMPLOYEES
 LOCAL 196, 350 F.SUPP. 1221 (E.D. PA. 1972) AND NEWARK STEREOTYPERS'
 UNION NO. 18 V. NEWARK MORNING LEDGER CO., 261 F.SUPP. 832 (D.N.J.
 1966), AFF'D. 397 F.2D 594 (3D CIR.), CERT. DENIED 393 U.S. 954(1968).
 THEREFORE, THE FEDERAL LABOR RELATIONS AUTHORITY WILL GRANT A PETITION
 FOR REVIEW OF AN ARBITRATION AWARD ON THE GROUND THAT THE ARBITRATOR
 FAILED TO CONDUCT A FAIR HEARING BY REFUSING TO CONSIDER PERTINENT AND
 MATERIAL EVIDENCE.
 
    IN THIS CASE, HOWEVER, THE UNION'S ARGUMENT IS NOT THAT THE
 ARBITRATOR REFUSED TO HEAR PERTINENT AND MATERIAL EVIDENCE, BUT INSTEAD
 THAT THE ARBITRATOR HEARD TO MUCH EVIDENCE, SPECIFICALLY EVIDENCE GOING
 TO THE ACTIVITY'S DEFENSE THAT THE MATTER WAS NONNEGOTIABLE.  THUS THE
 UNION ARGUES THAT IT WAS DENIED A FAIR HEARING BY THE FAILURE OF THE
 ARBITRATOR TO EXCLUDE CERTAIN PROFFERRED EVIDENCE.  IN THE PRIVATE
 SECTOR, WHILE REFUSAL TO HEAR PERTINENT AND MATERIAL EVIDENCE MAY
 CONSTITUTE A DENIAL OF A FAIR HEARING, COURTS HAVE LONG RECOGNIZED THAT
 LIBERAL ADMISSION OF TESTIMONY AND EVIDENCE IS THE USUAL PRACTICE IN
 ARBITRATION.  FOR EXAMPLE, IN HARVEY ALUMINUM, SUPRA, THE COURT QUOTED
 FAVORABLY FROM ARBITRATOR BENJAMIN AARON AS FOLLOWS:
 
    DESPITE THE GENERALLY ACCEPTED PRINCIPLE THAT ARBITRATION PROCEDURES
 ARE NECESSARILY MORE INFORMAL THAN THOSE IN A COURT OF LAW, OBJECTIONS TO
 EVIDENCE ON SUCH GROUNDS THAT IT IS HEARSAY, NOT THE BEST EVIDENCE, OR
 CONTRARY TO THE PAROL EVIDENCE RULE, ARE STILL FREQUENTLY RAISED IN AD HOC
 ARBITRATION.  TO THE EXTENT THAT THESE AND SIMILAR OBJECTIONS ARE INTENDED TO
 EXCLUDE PROFERRED EVIDENCE, THEY GENERALLY FAIL.  THE ARBITRATOR IS
 INTERESTED IN GATHERING ALL THE RELEVANT FACTS HE CAN, HIS PRINCIPAL OBJECTIVE
 IS TO RENDER AVIABLE DECISION, AND ANY INFORMATION THAT ADDS TO HIS
 KNOWLEDGE OF THE TOTAL SITUATION WILL ALMOST ALWAYS BE ADMITTED.  263
 F.SUPP.AT 491, QUOTING FROM AARON, SOME PROCEDURAL PROBLEMS IN ARBITRATION,
 10
 
    VAND.L.REV. 739, 743-44(1957).
 
    THUS, THE UNION'S CONTENTIONS THAT THE ARBITRATOR SHOULD NOT HAVE
 ADMITTED CERTAIN EVIDENCE PROVIDE NO BASIS FOR GRANTING ITS PETITION FOR
 REVIEW.  THE UNION STATES IN ITS PETITION THAT IT OBJECTED AT THE
 ARBITRATION HEARING TO THE ADMISSION OF THE EVIDENCE AND THUS THE
 ARBITRATOR HAD THE UNION'S OBJECTIONS BEFORE HIM WHEN DETERMINING WHAT
 WEIGHT TO GIVE TO THE DISPUTED EVIDENCE IN ARRIVING AT HIS AWARD.
 THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR GRANTING
 ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    IN ITS THIRD EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION, THE UNION STATES
 THAT THE PLAIN WORDING OF THE CONTRACT CALLS FOR "FORMAL NEGOTIATIONS"
 AND THAT THE AWARD HAS THE EFFECT OF INTERPRETING THE AGREEMENT AS
 PROVIDING FOR A WAIVER OF THE UNION'S RIGHT TO BARGAIN DURING THE
 MID-TERM OF AN AGREEMENT WHEN THE AGENCY DECLARES THE UNION'S PROPOSALS
 NONNEGOTIABLE.
 
    ON THEIR FACE, THE UNION'S ASSERTIONS IN SUPPORT OF ITS EXCEPTION ARE
 DIRECTED TOWARDS THE ARBITRATOR'S INTERPRETATION OF THE COLLECTIVE
 BARGAINING AGREEMENT AND CONSTITUTE DISAGREEMENT WITH THAT
 INTERPRETATION.  AS POINTED OUT IN CONNECTION WITH THE FIRST EXCEPTION,
 DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
 PROVISION OF THE AGREEMENT BEFORE HIM DOES NOT CONSTITUTE A BASIS FOR
 GRANTING ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
 THE REQUIREMENTS OF SECTION 2411.32 OF THE AMENDED RULES FOR ACCEPTANCE
 OF A PETITION FOR REVIEW OF AN