43:0921(72)AR - - Treasury, Customs Service, Southeast Region and NTEU - - 1992 FLRAdec AR - - v43 p921



[ v43 p921 ]
43:0921(72)AR
The decision of the Authority follows:


43 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

SOUTHEAST REGION

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2136

DECISION

January 7, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roger I. Abrams 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 to the Union's exceptions.

The Arbitrator determined that a grievance alleging that the Agency violated law and regulation by changing the procedures by which Customs Officers board and inspect certain vessels was not arbitrable. For the following reasons, we will remand the case to the parties for further processing consistent with our decision.

II. Background and Arbitrator's Award

In 1990, the Agency changed the procedure by which vessels arriving in the United States to deliver cargo to more than one port are boarded by Customs Officers for document and manifest verification. Formerly, such vessels were boarded by Customs Officers at each port. Under the new procedure, Coastwise Advanced Preliminary Entry (CAPE), after boarding at the initial port of arrival by Customs Officers, verification functions at subsequent ports are performed by agents of the shipping companies. The effect of CAPE "was a significant reduction in seaport officer overtime." Award at 11.

The Union filed grievances claiming that the implementation of CAPE violated law and regulation.(1) When the grievances were not resolved, they were consolidated and submitted to arbitration. As relevant here, the issue before the Arbitrator was whether the consolidated grievance was arbitrable.

The Arbitrator stated that whether the matter was arbitrable depended "on what the [parties' collective bargaining] [a]greement says." Id. at 17. The Arbitrator noted that, under Article 31 of the agreement,(2) alleged violations of laws, rules, or regulations were arbitrable.

The Arbitrator found that "not all laws, rules and regulations" were arbitrable. Id. According to the Arbitrator, "Congress intended that . . . unions could use grievance procedures to help resolve workplace disputes involving . . . certain personnel-related provisions of law, rules and regulation." Id. at 18. The Arbitrator concluded that because the statutory and regulatory provisions relied on by the Union were intended to regulate international commerce and "were not intended to protect or to regulate--or even to affect--the employment interests of Customs Officers[,]" they were "not the types of statutes, rules or regulations cognizable in the parties' arbitration system." Id. at 20. Therefore, the Arbitrator concluded that the grievance was not arbitrable. The Arbitrator stated, however, that the Supreme Court had addressed "an analogous question[]" and that if the Authority determined that the grievance was arbitrable, he would hold that the Agency unlawfully implemented CAPE.(3) Id. n.5.

III. Positions of the Parties

The Union contends that the award is contrary to the Statute, as interpreted by the Authority. According to the Union, the Statute defines "grievance" as "any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment[.]'" Exceptions at 10 (quoting 5 U.S.C. § 7103(a)(9)(C)(ii)) (emphasis omitted). The Union argues that "[i]t is the actual impact on conditions of employment that triggers the Union's right to grieve not the intended benefit . . . Congress sought to protect in promulgating the law in the first place." Id. at 14.

The Agency argues that the Arbitrator properly determined that the grievance was not arbitrable and that the definition of "grievance" argued by the Union is inconsistent with the Supreme Court's decision in IRS.

VI. Analysis and Conclusions

As a general matter, "we will not disturb an arbitrator's award that is based solely on a contract interpretation." U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 43 FLRA 147, 153 (1991) (Defense Mapping Agency). However, where a contractual provision reiterates a provision in the Statute, "we must exercise care to ensure that the interpretation is consistent with the Statute, as well as the parties' agreement." Id. If the parties intend such a provision to be interpreted differently from the Statute, "that should be made known to the arbitrator, who can then clearly specify the basis for an award." Id.

In this case, the parties' contractual definition of grievance is the same as that set forth in the Statute. That definition, in turn, encompasses grievances alleging violations of "any law . . . affecting conditions of employment." See n.2. See also 5 U.S.C. § 7103(a)(9).

Where, as here, a grievance challenges the exercise of a management right under section 7106(a)(2) of the Statute,(4) the "law" referenced in section 7103(a)(9) includes the "applicable laws" referenced in section 7106(a)(2). See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Public Debt, 42 FLRA 1333, 1338 (1991) (Public Debt). Stated otherwise, alleged violations of "applicable laws" are encompassed by the definition of "grievance" in section 7103(a)(9).

The term "applicable laws" encompasses, among other things, "provisions of the United States Code or other lawfully enacted statutes." Treasury, 42 FLRA at 389. In addition, in cases such as the one before us, the Statute does not limit the arbitrability of grievances alleging violations of law to "statutes that prescribe employee rights and benefits." Public Debt, 42 FLRA at 1338. Instead, the Statute permits arbitration of alleged violations of "all 'laws' that apply to, or are relevant to, the subjects set forth in section 7106(a)(2) insofar as those subjects relate to the conditions of employment of unit employees." Id.

In this case, the Arbitrator concluded that "Congress intended . . . grievance procedures to help resolve workplace disputes involving . . . certain personnel-related provisions of law, rules, and regulation." Award at 18. The Arbitrator found the grievance nonarbitrable because "the statutes and regulations relied upon by the Union were not intended to protect or to regulate . . . the employment interests of Customs Officers." Id. at 20. Based on Treasury and Public Debt, we conclude that, insofar as the Arbitrator's award is based on an interpretation of the scope of a grievance procedure permitted under the Statute, the award is deficient as inconsistent with the Statute.(5)

It also is clear, however, that under the Statute parties "may exclude any matter from the application of the grievance procedures . . . ." 5 U.S.C. § 7121(a)(2). As such, parties may agree "to a [grievance] procedure having narrower coverage[]" than permitted under the Statute. American Federation of Government Employees, AFL-CIO, Local 3669 and Veterans Administration Medical Center, Minneapolis, Minnesota, 3 FLRA 311, 314 (1980). Therefore, insofar as the Arbitrator's award is based solely on an interpretation of the parties' agreement, it appears that the award is not deficient.(6)

The Arbitrator stated that his award "must turn on what the . . . [a]greement says." Award at 17. However, the Arbitrator also stated that the parties had presented him "with a challenging question of contract and statutory interpretation." Id. at 14. Moreover, the Arbitrator acknowledged that the Authority might differ with his award based on its decision in Treasury, which, as noted, addressed the interpretation of the term "applicable law" in section 7106(a)(2) of the Statute. Accordingly, we are unable to determine whether the Arbitrator resolved the grievance based on an interpretation of the parties' agreement or section 7103(a)(9) of the Statute.

In the absence of a clear understanding as to the basis of the Arbitrator's award, we are unable to determine whether the award is deficient. Therefore, we will remand this case to the parties for resubmission to the Arbitrator to clarify the basis of his award. See Defense Mapping Agency, 43 FLRA at 154-55.

V. Decision

The case is remanded to the parties for resubmission to the Arbitrator in accordance with this decision.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Among other things, the Union claimed that the Agency violated 19 U.S.C. § 1448, which provides, in part, that "no merchandise, passengers, or baggage shall be unladen from any vessel . . . arriving from a foreign port . . . until entry of such vessel . . . has been made and a permit for the unlading of the same issued by the appropriate customs officer[.]" Award at 3.

2. Article 31 provides, in pertinent part, that "grievance" means any complaint by any employee concerning:

any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment.

Award at 9.

3. Consistent with the award and the record as a whole, we assume that the Arbitrator referred to the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. Federal Labor Relations Authority, 110 S. Ct. 1623 (1990) (IRS). Subsequent to issuance of the award, the Authority issued its decision on remand in IRS, addressing the term "applicable laws" in section 7106(a)(2) of the Statute, in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991) (Treasury), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91