47:1379(129)AR - - AFGE, Local 2076 and Justice, INS - - 1993 FLRAdec AR - - v47 p1379
[ v47 p1379 ]
The decision of the Authority follows:
47 FLRA No. 129
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
July 27, 1993
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 Alfred Avins filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
A grievance was filed disputing the Agency's denial of a request by two grievants to trade shifts. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to grant such requests. For the following reasons, we conclude that the Agency's exceptions fail to demonstrate that the award is deficient and we will deny the exceptions.
II. Background and Arbitrator's Award
The grievants, two Immigration Inspectors, requested permission to trade shifts. The request, which would have resulted in the Inspectors working 16 consecutive hours, was denied on the ground that the Inspectors "would have been too tired at the end of . . . 16 hours to properly perform their duties." Award at 1. The Union filed a grievance claiming that the denial violated Article 29(A)(8) of the parties' collective bargaining agreement.(*) When the grievance was not resolved, it was submitted to arbitration.
The issue to be resolved was neither stipulated by the parties nor set forth by the Arbitrator. However, each party presented its statement of the issue in its post-hearing brief. According to the Agency, the issue was:
Did Management violate Articles 5(E), 9(A) and/or 29 of the Negotiated Agreement by denying the shift trade requested by the grievants in February 1992? If so, what shall the remedy be?
Agency's Post-Hearing Brief at 2, Attachment to Union's Opposition. The Union stated the issue as:
Did the agency violate Article 5E, 9A, or 29(A)(8) of the Negotiated Agreement when it denied shift trades to the grievants, such trades having been previously approved? If so, what shall the remedy be?
Union's Post-Hearing Brief at 2, Attachment to Agency's Exceptions.
The Arbitrator stated that the parties' collective bargaining agreement "recognizes [shift trades] as a right, subject to the ability of employees to get the work done." Award at 1. In this connection, the Agency argued before the Arbitrator that a shift trade "which results in an [I]nspector being on duty for 16 consecutive hours is not 'consistent with the needs of the [S]ervice' because by the end of the shift, the [I]nspector is too tired to do his job properly." Id. The Arbitrator rejected the Agency's claim and found, instead, that there was a lack of evidence that "[I]nspectors in general, or the grievants in particular, cannot, due to fatigue, properly perform dut[ies] for 16 hours." Id. The Arbitrator noted that, previously, "Inspectors [were] permitted and even required to be on duty for 16 hours." Id.
The Arbitrator sustained the grievance on the basis that the Agency "failed to show that [the] grievants would have been unable to do their work adequately if they had been allowed to swap shifts[.]" Id. at 2. As his award, the Arbitrator ordered that "should [the grievants] seek to swap shifts, they be allowed to do so even if they are on duty for 16 hours." Id.
III. First Exception
A. Positions of the Parties
The Agency contends that the award is deficient because it conflicts with its right to determine its internal security practices pursuant to section 7106(a)(1) of the Statute. According to the Agency, all Immigration Inspectors are required to carry firearms and it has established an internal security policy that requires that "armed employees . . . must be alert." Exceptions at 4. The Agency maintains that "[t]he Arbitrator acknowledged [that] the Agency's firearms regulations expressly precluded armed officers from performing sixteen hour shifts." Id. at 7. The Agency claims that, by permitting the scheduling of double shifts and by requiring grants of requests for such shifts in the future, the award would "prevent the continued application" of the Agency's firearms policy. Id.
The Union asserts that the award has nothing to do with the Agency's internal security practices and is based only on the Arbitrator's interpretation and enforcement of Article 29(A)(8) of the parties' agreement. The Union argues that the Agency did not raise the issue of internal security at any time during the grievance and arbitration proceedings and should be precluded from raising the issue before the Authority.
B. Analysis and Conclusions
The Agency has not demonstrated that the award directly interferes with its right to determine its internal security practices. Although the Agency claims that it has established an internal security policy precluding the scheduling of Immigration Inspectors for 16-hour shifts, the Agency offers no substantiation of this claim. For example, the Agency has neither attached nor cited any policy or regulation precluding 16-hour shifts. In addition, although the Agency claims that "[t]he Arbitrator acknowledged the Agency's firearms regulations expressly precluded armed officers from performing sixteen hour shifts[,]" nothing in the Arbitrator's award, the hearing transcript, or the record supports this assertion. Exceptions at 7. Moreover, the Arbitrator found, and the Agency does not dispute, that, in the past, "[I]nspectors have been permitted and even required to be on duty for 16 hours." Award at 1. Because the Agency offers no support for its bare assertion that the award interferes with its right to determine its internal security practices, this exception provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Region V and National Treasury Employees Union, Chapter 230, 45 FLRA 737, 752-53 (1992).
IV. Second Exception
A. Positions of the Parties
The Agency contends that, by requiring the Agency to allow the grievants to trade shifts in response to all future requests, the award conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute. In this connection, the Agency argues that, according to the Arbitrator's remedy, the Agency "would be required to assign particular employees to particular shifts at their request without regard to [their] qualifications or to the needs of the service." Exceptions at 8.
The Union argues that the award does not interfere with management's right to determine the grievants' qualifications to work a particular shift. According to the Union, the clear language of Article 29(A)(8) preserves the Agency's "absolute right to deny shift trades when the needs of the Service would be hindered by the trades." Opposition at 8-9. The Union states that it never intended to restrict the Agency's right to require an employee to "'work a given shift because of his or her special skills, because of staffing or illness, because of weather or other emergencies, and for many reasons.'" Id. at 9 (quoting Hearing transcript at 5).
B. Analysis and Conclusions
We reject the Agency's claim that the award conflicts with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Nothing in the award precludes the Agency from determining the qualifications required to perform the duties of particular shifts or from determining whether the grievants possess those qualifications. The Arbitrator ordered only that the Agency grant the grievants' requests for shift trades "even if [the grievants] are on duty for 16 hours." Award at 2. Nothing in award precludes management from refusing to grant a request for other reasons, including qualifications to work on a particular shift.
As the award neither prohibits the Agency from making, nor requires the Agency to make, any determinations about employees' qualifications when granting or denying employees' requests for shift trades, the award does not interfere with management's rights to assign work under section 7106(a)(2)(B) of the Statute. See Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 445-46 (1992). Consequently, this exception provides no basis for finding the award deficient.
V. Third Exception
A. Positions of the Parties
The Agency argues that the Arbitrator exceeded his authority by deciding an issue not before him. Specifically, the Agency asserts that the Arbitrator did not limit his decision to the issue of "the propriety of the denial of two specific request[s] for shift changes." Exceptions at 9. The Agency claims that the award pertains to "all potential future shift change denials" by the grievants regardless of the circumstances and the "needs of the agency" that might exist at the time the request for a shift change is made. Id.
The Union asserts that the Arbitrator decided only the issue presented to him. The Union claims that the award does not preclude the Agency from denying shift trades "for a myriad of valid reasons." Opposition at 10. Further, the Union maintains that the Arbitrator was within the scope of his authority in ordering the Agency to grant future requests because the past violation could not longer be remedied.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration or by issuing an affirmative order that either awards relief to persons not encompassed within the grievance or that is beyond the scope of the matter submitted to arbitration. U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035, 1040 (1991). However, arbitrators have great latitude in fashioning remedies under the Statute to correct violations of collective bargaining agreements. For example, U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288 (1992), petition for review denied sub nom. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania v. FLRA, 981 F.2d 1339 (D.C. Cir. 1993).
In this case, it is clear that the issue before the Arbitrator was whether the Agency violated Article 29(A)(8) of the parties' agreement when it denied the grievants' requests to trade shifts. See, for example, Transcript at 3-6; Agency's Post-Hearing Brief at 6-7, Attachment to Union's Opposition. In resolving this issue, the Arbitrator rejected the Agency's position that "[I]nspectors in gen