20:0391(41)AR - INS and AFGE Local 1917 -- 1985 FLRAdec AR



[ v20 p391 ]
20:0391(41)AR
The decision of the Authority follows:


 20 FLRA No. 41
 
 U.S. IMMIGRATION AND 
 NATURALIZATION SERVICE  
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1917  
 Union
 
                                       Case No. O-AR-556
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Sidney L. Cahn filed by the Department of Justice on behalf
 of the Immigration and Naturalization Service (INS) 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 an
 opposition.  /1/
 
    The grievance before the Arbitrator concerned the alleged failure of
 the Agency to comply with the requirements of the parties' collective
 bargaining agreement regarding a report of the Joint District Safety and
 Health Committee, which identified several health and safety problems at
 various facilities and recommended corrective actions.  The parties were
 unable to agree on an issue and the Arbitrator framed the issues in this
 matter as follows:
 
          (1) Has the Employer (hereinafter referred to as the Agency or
       District Director) violated the provisions of the parties'
       Collective Bargaining Agreement when it failed timely to respond
       to the report of March 1982 of a Joint District Safety & Health
       Committee (hereinafter referred to as the Committee) which was
       submitted to the Agency in May 1982?
 
          (2) By several such alleged similar failures (i.e. item (1)
       hereof) and other actions has the Agency effectively repudiated
       and rendered nugatory (solely for the purposes of this proceeding)
       Article 17D(3) of the parties' Collective Bargaining Agreement.
       If so, what, if any, shall be the remedy?
 
          (3) What constitutes an appropriate response by the District
       Director to a report of the Safety & Health Committee?
 
          (4) What constitutes a safety and health hazard?  Are there any
       safety and health problems which require correction by the
       Agency(?) If so, what, if any, shall be the remedy?
 
          (5) Does Article 17 of the parties' Collective Bargaining
       Agreement mandate Agency compliance with the recommendations of
       the Committee(?) If so, what, if any, shall be the remedy?
 
 The Arbitrator agreed with a number of the Committee's conclusions that
 problems existed which affected the safety and health of Agency
 employees and that the Agency violated the parties' agreement by failing
 to properly respond to the Committee's report and to correct those
 problems.  As his award, the Arbitrator directed the Agency to respond
 to the Committee's report within ten work days after receipt of the
 Committee's recommendations and to take certain actions regarding
 specific problems.
 
    In a general exception, the Agency excepts to the Arbitrator's
 finding that the Agency was obligated under the parties' agreement to
 correct unsafe and unhealthy working conditions and practices reported
 by the Committee.  The Agency contends that to the extent the
 Arbitrator's award mandates the correcting of any health and safety
 problem reported, the award is "ambiguous and overbroad as such
 corrective action may violate law, rule, or regulation and exceed the
 arbitrator's authority as such corrections may, under some
 circumstances, require actions outside the purview of the agency's
 authority and/or require an action in derogation of management's
 reserved rights." In support of this exception, the Agency asserts that
 the Arbitrator's (and the Committee's) definition of a "safety and
 health problem" is too broad because it encompasses conditions which
 merely involve discomfort and that given that overly broad definition
 "it is foreseeable" that a condition involving mild discomfort would be
 considered unsafe or unhealthy, and the related corrective action could
 be disproportionately expensive, outside the control of the parties, or
 violative of management's rights.  The Agency further asserts in support
 of this general exception that while it is unclear what constitutes
 corrective action, a requirement that management correct any reported
 unhealthy or unsafe condition could be read as requiring management to
 substantially alter a facility or practice that is entirely outside of
 its control, and as requiring the expenditure of Agency funds in
 violation of General Services Administration (GSA) regulations and other
 regulatory and legal restrictions on the expenditure of funds.
 
    As to the Agency's assertions in support of this general exception,
 the Authority finds that the Agency has failed to demonstrate that this
 portion of the Arbitrator's award is deficient as alleged.  Thus, with
 regard to the Agency's assertion that the award is overbroad and
 ambiguous, the Authority finds that the Arbitrator's award finding that
 the Agency is obligated under the parties' agreement to correct reported
 unsafe and unhealthy conditions is not so uncertain in its meaning and
 effect so as to make implementation of this portion of the award
 impossible.  Veterans Administration Hospital, Newington, Connecticut
 and National Association of Government Employees, Local R1-109, 5 FLRA
 64, 66-67(1981).  As to the Agency's assertions that the Arbitrator
 exceeded his authority and that this part of the award violates
 unspecified law, rule, regulation and management's rights, the Authority
 finds that the Agency has failed to substantiate its assertions.  The
 Agency's arguments are essentially speculative, i.e., centered on what
 the Agency speculates might be required by the award in the future.  The
 essence of the disputed portion of the award is a direction to the
 Agency to abide by its agreement to correct health and safety problems
 reported by the Committee to the extent that it properly can, i.e., to
 the extent that corrective action is within its authority and would not
 violate law, including management's reserved rights under section
 7106(a) of the Statute, or any rule or regulation.  Arbitrators have
 considerable latitude in fashioning remedies for a party's violation of
 its collective bargaining agreement, id. at 67, and the disputed portion
 of the award is not in excess of the Arbitrator's authority or otherwise
 deficient as contrary to law, rule or regulation.  See American
 Federation of State, County and Municipal Employees, AFL-CIO, Local 2477
 and Library of Congress, Washington, D.C. (and the case consolidated
 therewith), 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of
 Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir.
 1983);  Local 1688, International Brotherhood of Electrical Workers and
 U.S. Army Engineer District, Omaha, 5 FLRA 44, 48-49(1981).  Therefore,
 as to this general exception, the Authority concludes that the Agency's
 assertions in support of the exception constitute nothing more than
 disagreement with the Arbitrator's interpretation of the parties'
 collective bargaining agreement, unsupported speculation, and an attempt
 to relitigate the merits of the dispute before the Authority.
 Consequently, the exception provides no basis for finding this part of
 the award deficient.  See, e.g., Naval Air Rework Facility, Cherry
 Point, North Carolina and International Association of Machinists and
 Aerospace Workers, Local Lodge 2297, 14 FLRA 497, 498(1984);  Colorado
 Air National Guard, Buckley ANG Base and Association of Civilian
 Technicians, the Columbine Council, 7 FLRA 3, 6-7(1981).
 
    The Agency's exceptions to the specific corrective actions ordered by
 the Arbitrator will be considered separately below.  /2/
 
    The Arbitrator directed the Agency, in pertinent part, to take the
 following actions:  (1) to install or have GSA install a barrier or
 other form of protection against the cold on the first floor of 26
 Federal Plaza;  (2) to have all areas of the Brooklyn Citizenship Office
 building periodically exterminated and to arrange for and obtain
 appropriate cleaning for all facilities and adequate ventilation for all
 clerical sections in that building;  (3) to obtain and install an
 effective barrier at the American Airlines terminal at John F. Kennedy
 International Airport to prevent jet fumes from reaching the area where
 Agency employees are stationed and to obtain extermination services for
 all areas at the airport where its employees are stationed if such
 services are not rendered on a regular basis by the New York/New Jersey
 Port Authority and/or the airlines.
 
    In its exceptions to those portions of the Arbitrator's award, the
 Agency contends, among other things, that the Arbitrator exceeded his
 authority.  In support of its exception, the Agency argues that 26
 Federal Plaza is owned and operated by GSA;  that the Brooklyn
 Citizenship Office building is leased by GSA from a private owner;  and
 that JFK International Airport is owned by the Port Authority and the
 terminals at the airport are leased by the airlines.  Consequently, the
 Agency further argues, it is without authority to take the actions
 ordered by the Arbitrator or to compel GSA, the Port Authority or the
 airlines to do so.  The Agency acknowledges that it properly may be
 required to request the organizations which control the buildings and
 work areas to take the actions described and indicates that it has or
 will comply with the award to that extent.  However, the Agency
 essentially maintains that to the extent the award directs it to
 actually accomplish the corrective actions if the requests do not
 achieve the intended results, the award exceeds the Agency's and,
 therefore, the Arbitrator's authority.
 
    As to this exception, the Authority finds, in agreement with the
 Agency, that the Arbitrator could not properly direct the Agency to take
 the actions described in the disputed portions of his award, which
 actions were within the purview of GSA, the Port Authority or the
 airlines and not within the purview of the Agency.  /3/ The Arbitrator
 could properly direct the Agency to take only those actions which were
 within its authority and which, of course, would not violate law, rule
 or regulation.  The Authority therefore concludes, in agreement with the
 Agency, that the Arbitrator exceeded his authority to the extent he
 directed the Agency to take actions which were not within its purview.
 To that extent, the Arbitrator's award is deficient and must be
 modified.  /4/ Accordingly, the disputed portions of the award here
 addressed are modified to provide that the Agency shall take whatever
 actions are within its authority in the specific situations involved,
 including requesting appropriate third parties (1) to install a barrier
 or other form of protection against the cold on the first floor of 26
 Federal Plaza;  (2) to have all areas of the Brooklyn Citizenship Office
 building periodically exterminated and cleaned and to provide adequate
 ventilation for all clerical sections in that building;  and (3) to
 install an effective barrier at the American Airlines terminal at JFK
 International Airport to prevent jet fumes from reaching Agency employee
 work areas and to provide extermination services for all areas at the
 airport where Agency employees are stationed.
 
    In other portions of his award related to Agency employee work areas
 at JFK Airport, the Arbitrator directed the Agency to request Pan
 American World Airways and British Airways to continue to use climate
 controls during the appropriate summer and winter months in those areas
 of their terminals staffed by Agency employees.  Additionally, the
 Arbitrator directed the Agency to request Pan American Airways not to
 use its overhead baggage conveyor belts during peak passenger inspection
 periods.  The Arbitrator further directed that if the airlines do not
 comply with the request, the Agency is to inform the airlines that their
 failure to comply might require the Agency to:
 
          (1) Revoke the airline terminals' designation as ports of
       entry;
 
          (2) Revoke permission for passenger inspection at those
       terminals;  or
 
          (3) Reduce the number of Agency inspectors stationed at the
       terminals to a minimum.
 
 Finally, the Arbitrator directed that if Pan American and British
 Airways still decline to provide adequate climate controls as requested,
 the Agency is to supply all areas where its employees are stationed with
 an adequate number of electric heaters and fans sufficient to rectify
 the cold and heat problems identified by the Health and Safety
 Committee.
 
    The Agency did not file an exception to that portion of the award
 directing it to request the airlines to take the actions described.
 However, the Agency contends that the portion of the award which in
 effect directs the Agency to threaten to impose the sanctions described
 if the airlines refuse the requests is deficient because, among other
 things, it interferes with management's rights under section 7106 of the
 Statute.  The Authority agrees.
 
    It is well-established that an arbitrator's award may not interpret
 or enforce a provision of a collective bargaining agreement so as to
 improperly deny the authority of an agency to exercise its statutory
 rights under section 7106 of the Statute.  E.g., Veterans Administration
 Hospital, Lebanon, Pennsylvania and American Federation of Government
 Employees, AFL-CIO, Local 1966, 11 FLRA 193(1983).  Section 7106(a)(1)
 of the Statute reserves to management the exclusive authority to
 determine the mission of the agency, and section 7106(b)(1) reserves to
 management the authority to determine the number of employees or
 positions assigned to any work project.  In terms of this case,
 designation of ports of entry for aliens arriving by aircraft and the
 examination and inspection of passengers entering the United States at
 those ports clearly are so integrally related to the mission of the
 Agency (8 U.S.C. 1223, 1225 and 1229) that they must be considered
 matters which are exclusively reserved to management by section
 7106(a)(1).  Similarly, the number of inspectors to be assigned to the
 terminals is a matter reserved to management by section 7106(b)(1),
 unless the Agency elects to negotiate with the Union regarding the
 matter and the record reflects that the Agency has not negotiated this
 matter with the Union.  Therefore, by directing the Agency to threaten
 to revoke port of entry designations and permission for examination of
 passengers at the Pan American and British Airways terminals, the
 Arbitrator's award directly interferes with management's exclusive right
 under section 7106(a)(1) to determine its mission.  Furthermore, by
 directing the Agency to threaten to reduce the number of inspectors
 assigned to the terminals, the award interferes with management's right
 under section 7106(b)(1) to determine the number of employees assigned
 to the terminals.  Consequently, this aspect of the Arbitrator's award
 is deficient and is hereby set aside.  /5/
 
    The Agency also contends that the portion of the award directing the
 Agency to supply electric heaters and fans if the airlines decline to
 provide adequate climate controls is deficient for two reasons.  First,
 the Agency contends that the heaters and fans involve the technology,
 methods and means of performing work, a matter reserved to management
 under section 7106(b)(1) of the Statute.  However, the Authority
 concludes that the Agency has failed to establish that heaters and fans
 are sufficiently related to the work of the Agency to be considered
 technology, methods or means of performing work within the meaning of
 section 7106(b)(1).  See AFSCME and Library of Congress, 7 FLRA at
 587-88.  Accordingly, this contention provides no basis for finding the
 disputed portion of the award deficient.
 
    Second, the Agency essentially contends that the Arbitrator exceeded
 his authority by directing the Agency to supply electric heaters and
 fans for employee work areas.  In support of this exception, the Agency
 argues that electrical wiring necessary for the operation of heaters and
 fans is not within the control of the Agency, that the existing wiring
 in the work areas is inadequate for that purpose, and that the Agency is
 without authority to either install or require the airlines to install
 sufficient wiring.  As to this exception, the Authority finds that the
 Agency has established that the Arbitrator exceeded his authority to the
 extent that his award requires any preliminary actions which are outside
 the purview of the Agency, that is, those actions which must be taken
 before the Agency properly could supply heaters and fans for the
 employee work areas.  Thus, a prerequisite determination as to the
 adequacy of wiring for the safe operation of heaters and fans and the
 installation of any additional wiring that may be necessary for such
 safe operation are actions within the authority of the appropriate
 airline or Port Authority office and not the Agency.  Therefore, to the
 extent that this portion of the award entails such prerequisite actions,
 the award is deficient as in excess of the Arbitrator's authority.
 However, as the Agency has previously acknowledged, the Agency properly
 may be required to request that such necessary preliminary actions be
 taken by the appropriate airline or Port Authority office.
 
    Accordingly, this portion of the Arbitrator's award is modified to
 provide as follows:
 
          If the airlines decline to provide continuous climate control
       as requested, the Agency shall request the appropriate airlines
       and/or Port Authority office to ensure that sufficient electrical
       wiring is installed for the safe operation of heaters and fans in
       Agency employee work areas.  When it is determined that such
       wiring has been installed, the Agency shall supply an adequate
       number of heaters and fans for the employee work areas to rectify
       the cold and heat problems identified by the Safety and Health
       Committee.
 
    Issued, Washington, D.C., September 30, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The national and local offices of the Union separately filed
 timely oppositions.  The Agency objected and requested that one of the
 submissions be rejected.  However, the Authority has determined that it
 will consider both timely submissions as a combined opposition of the
 Union.
 
    In its opposition, the Union contends, among other things, that the
 Department of Justice lacks standing to file exceptions to the award
 because the Department was not a "party" to the arbitration and that
 only the INS could file exceptions.  However, the Authority finds that
 the exceptions were properly filed by the Department on behalf of the
 INS.  See, e.g., United States Department of Justice, Immigration and
 Naturalization Service and American Federation of Government Employees,
 Local 1917, 14 FLRA 638 n. 1 (1984).
 
 
    /2/ The record reflects that subsequent to the Arbitrator's award,
 the Agency vacated the Service Processing Center.  Therefore, the
 portion of the award directing specific actions with respect to that
 facility and the related dispute between the parties as raised by the
 Agency's exceptions to that portion of the Arbitrator's award
 specifically pertaining to the Service Processing Center are dismissed.
 
 
    /3/ See, e.g., AFSCME and Library of Congress, 7 FLRA at 585-86;
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 8 FLRA 409,
 411-13(1982).
 
 
    /4/ In view of this decision, it is not necessary to address the
 Agency's other exceptions to the disputed portions of the Arbitrator's
 award.
 
 
    /5/ In view of the Authority's decision with respect to this
 exception, it is unnecessary to address the Agency's other exceptions to
 this part of the award.
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