American Federation of Government Employees, Local 1917, National Immigration and Naturalization Council (Union) and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York (Agency)

[ v56 p521 ]

56 FLRA No. 81

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1917
NATIONAL IMMIGRATION AND
NATURALIZATION COUNCIL
(Union)

and

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK, NEW YORK
(Agency)

0-AR-3248

_____

DECISION

July 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Member Cabaniss for the Authority.

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Charlotte Gold 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency did not violate the parties' agreement when it reassigned the grievant from the position of Special Agent to that of District Adjudications Officer. For the reasons that follow, we deny the exceptions.

II.     Background and Arbitration Award

A.     Background

      The grievant was a Special Agent, and also served at the applicable time as the Union's First Vice President. The Agency proposed to remove his Law Enforcement Availability Pay (LEAP) certification because of his alleged failure to work the number of unscheduled duty hours required to maintain certification. The LEAP removal was described as a non-disciplinary adverse action. The Agency decided to remove the grievant's LEAP and he did not elect to contest the decision in any of the three avenues open to him for doing so: the grievance procedure in the parties' collective bargaining agreement, the Merit Systems Protection Board, or the Equal Employment Opportunity Commission.

      After the removal of the grievant's LEAP, the Agency reassigned him from a Special Agent position to District Adjudications Officer. The Agency explained that "'this action is being taken under the management-need provision of section 2265 of the Administrative Manual.'" Award at 2. The Agency also explained that the reassignment did not provide law enforcement retirement coverage for the grievant, but it did maintain him at the same grade and pay. The Agency stated that the only other position in the district at the grievant's grade level was Deportation Officer, but there were no such vacancies available. The Agency noted that the grievant had prior experience with adjudications, having served on a task force adjudicating relative visa petitions.

      The grievant filed a grievance protesting the reassignment. When the grievance was not resolved it was submitted to arbitration.

B.     Arbitration Award

      The parties could not agree on an issue to submit to arbitration, so the Arbitrator framed the issue as:

Did the Agency violate the [a]greement when it reassigned the [grievant] from the position of Special Agent to that of District Adjudications Officer? If so, what shall the remedy be? 

Award at 5.

      The parties each raised arguments concerning alleged procedural errors. Specifically, the Agency maintained that the grievance should have been filed initially at Step 2 of the grievance procedure and that by the time the grievance reached that level it was untimely filed. The Union contended that the Agency erred because the reassignment decision was made by the District Director rather than by the Associate Deputy Regional Commissioner, Management. The Arbitrator framed the threshold issue as:

Are there any procedural defects that warrant either the rescinding of [the Agency's] reassignment decision, or the dismissal of the Union's grievance as untimely filed?

Id.

      The Arbitrator concluded that the procedural violations present were de minimis in nature and caused no [ v56 p522 ] harm. In this regard, the Arbitrator applied the "harmful error" principle to the question of the timely filing of the grievance at the appropriate level and concluded that there was no harmful error in the way the grievance was handled. The Arbitrator observed that the Agency was placed on notice that its decision was a subject of protest and that any minor delay that may have occurred did not place the Agency at a disadvantage. Likewise, the Agency argued before the Arbitrator that even if it erred procedurally by having this decision initiated by the District Director, there was no harmful error because the reassignment was fully reviewed by the Acting Regional Director. Thus, any error that may have occurred did not cause the Agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The Arbitrator determined that the grievance should be considered on its merits.

      On the merits, the Union had requested as a remedy the reinstatement of the grievant's LEAP status. The Agency argued that the Arbitrator had no jurisdiction over that issue because the grievant never filed an appeal over its loss and that issue was not part of the arbitration. The Arbitrator concurred with the Agency's argument and found that because the grievant had not filed an appeal in one of the three forums available, the grievant could not now seek restoration of LEAP at arbitration.

      Turning to the reassignment issue, the Arbitrator found that regulations permit an agency to suspend entitlement to LEAP for an appropriate period when an investigator has failed to perform unscheduled duty. [n1]  The Arbitrator also determined that the regulation did not prevent an agency from reassigning an employee, should the agency have a compelling need to do so. In this case, the Arbitrator found that the Agency determined that it was essential to have Special Agents perform unscheduled duty, and that there was also a need for a District Adjudications Officer. [n2]  The Arbitrator concluded that "there are no grounds to dispute the Agency's decision." Award at 14.

III.     Positions of the Parties

A.     Union's Exceptions

1.     Whether the award is contrary to law, rule or regulation

a.     The Agency policy that LEAP certification is not required

      The Union argues that the Arbitrator "misunderstood appropriate law." Exceptions at 1. [n3]  In particular, the Union refers to the Agency's interim policy concerning LEAP which states that employees who serve as criminal investigators prior to October 1, 1995, (which includes the grievant) will receive LEAP without regard to the eligibility requirements of the policy. The Union contends that because LEAP certification was not a requirement for the grievant's job, the reason for his reassignment must fail. The Union contends that the Arbitrator misunderstood this argument.

b.     Agency regulations and a C.F.R. provision that in effect do not permit reassignments but only provide for a 6 month suspension

      The Union argues that under applicable regulations, where an employee has not worked the necessary LEAP overtime, the agency must give the employee the opportunity to recertify such failure within 6 months. The Union asserts that the grievant was never afforded the chance to resume his LEAP status, but was summarily reassigned, in direct contradiction to the Agency's own regulations.

c.     The Agency's Administrative Manual

      The Union contends that the Agency's action was defective because the Agency's Administrative Manual requires that a reassignment based on management needs be authorized at the Regional Level. In this case, the Union asserts, the reassignment was accomplished at the District level, a level below the Regional level.

2.     Whether the Arbitrator exceeded her authority

      The Union contends that the Arbitrator did not address its argument that the grievant's reassignment was accomplished as "a punitive measure or in retaliation for protected activities such as [U]nion advocacy." Exceptions at 7. The Union asserts that the Agency's actions against the grievant were premeditated and deliberate because of his Union activities. [ v56 p523 ]

3.     Whether the Arbitrator failed to conduct a fair hearing

      The Union argues that the Arbitrator ignored uncontroverted evidence. The Union contends that under the Agency's LEAP policy, LEAP certification was not a requirement for the grievant, because the grievant had been a criminal investigator prior to October 1, 1995.

B.     Agency's Opposition

1.     Whether the award is contrary to law, rule or regulation

a.     The Agency policy that LEAP certification is not required

      The Agency asserts that the award is consistent with the Agency's LEAP policy and 5 C.F.R. § 550.184(d). [n4]  The Agency argues that the Arbitrator did understand the LEAP policy, but found that the policy did not prevent the Agency from reassigning an employee if it had a need to do so. The Agency contends that the Union's claim is "untrue and unsubstantiated by the record." Opposition at 6.

b.     Agency regulations and a C.F.R provision that in effect do not permit reassignments but only provide fora 6 month suspension

      The Agency does not specifically address this issue, but argued generally that because the grievant had not appealed the removal of his LEAP status, any question regarding that LEAP status was not part of this case.

c.     The Agency's Administrative Manual

      The Agency asserts that the Arbitrator framed this issue as a procedural issue and concluded that the procedural violations presented were de minimis in nature and caused no harm. The Agency argues that the Arbitrator's judgment on what issues were before her should be given "substantial deference." Opposition at 2.

2.     Whether the Arbitrator exceeded her authority

      The Agency argues that the Arbitrator framed the issues on the merits and agreed with the Agency's position that she had no jurisdiction over the grievant's loss of LEAP. The Agency asserts that the award specifically states that the grievant failed to appeal the loss of his LEAP. According to the Agency, the Arbitrator properly framed the issue before her regarding the grievant's reassignment.

      The Agency claims that the Union's contention that the Arbitrator ignored its arguments is nothing more than an attempt to relitigate the merits with the Authority and constitutes mere disagreement with the Arbitrator's findings. Contrary to the Union's contention that the Arbitrator did not consider the grievant's retaliation claim, the Agency states that the Arbitrator specifically noted that the grievant was the Union's Vice President when he was informed of the reassignment.

3.     Whether the Arbitrator failed to conduct a fair hearing

      The Agency does not specifically address this exception, but argues generally that because the grievant had not appealed the removal of his LEAP status, any question regarding that LEAP status was not part of this case.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law, Rule or Regulation

1.     The Agency Policy that LEAP Certification Is Not Required Was Not Violated  [n5] 

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, [ v56 p524 ] Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998).

      The issue resolved by the Arbitrator concerned whether the Agency's reassignment of the grievant was proper. The Union maintained that the Agency's LEAP policy did not require the grievant, as a criminal investigator prior to 1995, to certify his availability to perform unscheduled extra duty. The Agency Memorandum issued to implement the interim LEAP policy provides that current criminal investigators receiving LEAP will receive LEAP without regard to eligibility requirements of the policy. However, that same document provides that the criminal investigators must certify their availability. The waiver for current criminal investigators pertains solely to eligibility requirements, not to the certification requirement. [n6]  We find that those same certification requirements for current criminal investigators are set forth in 5 C.F.R. § 550.184, a Government-wide regulation.

      We note that the Arbitrator found that the original notice given to the grievant cited 5 U.S.C. § 5545a(a) as the authority for the conclusion that an investigator must or shall be available to perform unscheduled duties based on the needs of the Agency. [n7]  The Arbitrator found that "the Agency determined that it was essential to have Special Agents perform unscheduled duty." Award at 12. Therefore, based on the Arbitrator's findings and the documents she quoted and cited, we find that criminal investigators were required to certify their availability to work unscheduled extra hours in order to receive LEAP.

      The Union's reliance on the policy and regulations is misplaced and provides no basis to find the award deficient. Accordingly, we deny the exception.

2.     Agency Regulations and the C.F.R. Provision Were Not Violated

      We note that the only issue before us is the reassignment of the grievant; the termination of LEAP status is not part of this case. We address this exception only as it pertains to making the reassignment.

      The Agency's LEAP policy, at section 9, provides for the certification of availability to work additional unscheduled duty. Section 11 of that policy addresses non-certification and recertification. However, nothing in the policy guarantees an employee continuation of LEAP if certification requirements are not fulfilled. More importantly, nothing in the policy precludes the Agency from reassigning an employee. The Union has not demonstrated that the award is inconsistent with Agency policy or regulation. We therefore deny this exception.

3.     The Agency's Administrative Manual Was Not Violated  [n8] 

      In its exception, the Union maintains that the Arbitrator's award is deficient because it violates a provision of the Agency's Administrative Manual. Specifically, the Union asserts that the reassignment was accomplished at the District level, rather than at the Regional level as required by the manual.

      There is no dispute among the parties that the reassignment was initiated at the District level and was reviewed by the Acting Regional Director. The Arbitrator found that the violation was de minimis because the Acting Regional Director reviewed the reassignment, and the same result would have occurred had the reassignment been signed by the Acting Regional Director. Although the Arbitrator found that the reassignment action did not comply with the Administrative Manual, she concluded that no other remedy was needed because the result would have been the same had the designated official signed the reassignment. In this respect, the Arbitrator effectively found that the reassignment decision was made by an official at the Regional level. The Union is disagreeing with the remedy formulated by the Arbitrator. As such, the exception provides no basis to overturn the award and we deny the exception. [ v56 p525 ]

B.     The Arbitrator Did Not Exceed Her Authority

      We construe the Union's exception, that the Arbitrator failed to address its assertion that the grievant was reassigned as retaliation for Union activity, as a contention that the Arbitrator exceeded her authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      The parties could not agree on the issues to submit to arbitration, so the Arbitrator framed the issues. The Arbitrator was aware of the grievant's Union activity and clearly referenced his Union office in the award. However, the Arbitrator did not frame an issue of retaliation and, given the deference to arbitrators on matters of issue formulation, the Union has not demonstrated that the Arbitrator exceeded her authority. Accordingly, we deny the Union's exception.

C.     The Arbitrator Did Not Fail to Conduct a Fair Hearing

      We construe the Union's argument that the Arbitrator failed to consider uncontroverted evidence as an exception that the Arbitrator did not conduct a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126-27 (1995); U.S. Department of the Air Force, Hill Air Fore Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 105-07 (1991).

      The Union states that the award ignores evidence that the grievant was reassigned due to Union activities and was not given an opportunity to recertify under the regulations. Because neither the issue of Union animus nor that of termination of LEAP was before the Arbitrator, we find no basis for the Union's exception. The Union has failed to demonstrate that the Arbitrator failed to conduct a fair hearing and we deny the exception.

V.     Decision

      Consistent wit