U.S. Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma (Agency) and American Federation of Government Employees, Local 171, Council of Prison Locals C-33 (Union)

[ v57 p158 ]

57 FLRA No. 40

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL TRANSFER CENTER
OKLAHOMA CITY, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 171
COUNCIL OF PRISON LOCALS C-33
(Union)

0-AR-3300

_____

DECISION

May 18, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Patrick E. Zembower filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exception.

      The Arbitrator ordered the Agency to open all work assignments to bid on a quarterly basis. We conclude that the Agency fails to establish that the award is deficient. Accordingly, we deny the Agency's exception.

II.     Background and Arbitrator's Award

      Article 18, section d of the parties' 1998 collective bargaining agreement provides procedures for the preparation of "[q]uarterly rosters" of work assignments and the submission by employees of their preference requests for the upcoming quarter. Section (d)(2)(d) provides, in pertinent part: "[T]he roster committee will consider preference requests in order of seniority and will make reasonable efforts to grant such requests." In addition, Article 3 provides that the agreement takes precedence over agency policies that are not derived from governing laws and regulations. When management designated certain work assignments for a duration of 6 or 9 months, rather than for 3 months, the Union filed a grievance.

      Before the Arbitrator, the Union argued that the Agency had violated the seniority provisions of Article 18, section (d) when it established work assignments that were longer than 3 months. The Union also argued that the operations manual that had authorized work assignments of longer than 3 months had been superceded by the 1998 agreement pursuant to Article 3. The Agency argued that any limitation on management's right to determine the duration of any work assignment would be contrary to management's rights under § 7106(a) of the Statute to determine its internal security practices and to assign work.

      The Arbitrator determined that the 1998 agreement terminated the practice of work assignments for 6 or 9 months and that the agreement took precedence over the operations manual under the terms of Article 3. In addition, he noted that the agreement expressly provides for quarterly rosters and that there is no reference to assignments for 6 or 9 months. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to open all assignments "to bid on a quarterly duration basis." Award at 31.

III.     Agency's Exception

      The Agency contends that the award is contrary to § 7106(a) of the Statute. Specifically, the Agency asserts that the award is contrary to management's right to assign work under § 7106(a)(2)(B) and to determine its internal security practices under § 7106(a)(1).

      The Agency acknowledges that the framework for resolving its exception is set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). The Agency notes that in cases where the arbitrator has enforced a collective bargaining agreement in a manner that affects the exercise of a management right, the Authority examines whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to § 7106(b) of the Statute. The Agency maintains that the award affects both its right to assign work and its right to determine its internal security practices and that the award does not provide a remedy for a contract provision negotiated under § 7106(b)(2) or (b)(3).

      The Agency argues that the award affects its right to assign work because it limits management's ability to determine the nature and duration of work assignments. [ v57 p159 ] The Agency also argues that because the Arbitrator has enforced Article 3 and Article 18 to place substantive limitations on management's ability to determine the nature and duration of work assignments, the contract provisions directly interfere with its right to assign work and, consequently, cannot constitute procedures within the meaning of § 7106(b)(2). The Agency further argues that as interpreted by the Arbitrator, Article 3 and Article 18 do not provide a specific, narrowly tailored balm to those employees affected by management's right to assign work and, consequently, cannot be characterized as arrangements within the meaning of § 7106(b)(3). Accordingly, the Agency asserts that the award fails prong I of BEP and is deficient as contrary to §7106(a)(2)(B).

      With respect to internal security, the Agency notes that agency officials specifically testified that designating certain work assignments for a duration of 6 or 9 months was necessary for purposes of safety and security. The Agency maintains that the practice of designating certain work assignments for a duration of 6 or 9 months constitutes an exercise of its right to determine its internal security practices because this testimony shows the necessary link between the practice and the objective of safeguarding agency personnel, property, or operations.

      The Agency argues that because the enforcement of Article 3 and Article 18 directly interferes with its right to determine its internal security practices, the contract provisions cannot constitute procedures within the meaning of § 7106(b)(2). The Agency further asserts that the contract provisions do not constitute appropriate arrangements within the meaning of § 7106(b)(3). As it argued with respect to management's right to assign work, the Agency maintains that the contract provisions do not provide the narrowly tailored balm necessary to constitute an arrangement. In addition, the Agency argues that the Arbitrator's enforcement of the contract provisions "completely negates management's decision on this security issue," and excessively interferes with its right to determine its internal security practices. Exceptions at 12. Accordingly, the Agency contends that the award fails prong I and is deficient as contrary to § 7106(a)(1).

IV.     Analysis and Conclusions

A.     Standard of Review and Framework

      When a party's exception challenges an arbitration award as contrary to law, we review the questions of law raised in the exception and arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). When applying a de novo standard of review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE Local 1437, 53 FLRA 1703, 1709 (1998). As noted by the Agency, the Authority's framework for resolving exceptions alleging that an arbitrator's award is contrary to management rights under § 7106(a) is set forth in BEP. For awards that affect the exercise of a management right under § 7106(a), BEP establishes a two-prong test to determine whether the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for the violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contract provision at issue.

B.     The award is not contrary to management's right to assign work

      By limiting the duration of work assignments to 3 months, the award affects management's right to assign work. See, e.g., AFGE Council of Locals No. 163, 51 FLRA 1504, 1513 (1996). Consequently, it is necessary in this case to examine whether the award satisfies BEP. Under prong I, the Agency's exception presents the issue of whether Articles 3 and 18 are contract provisions negotiated pursuant to § 7106(b)(2) or (b)(3). [n2] 

      The Authority applies the analysis set forth in Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service) to determine whether an arbitrator has enforced an agreement provision that was negotiated pursuant to § 7106(b)(3) of the Statute. See, e.g., Federal Aviation Admin., Washington, D.C., 55 FLRA 1233, 1236 (2000) (FAA). Under that framework, the Authority examines whether the provision [ v57 p160 ] of the collective bargaining agreement enforced by the arbitrator: (1) constitutes an arrangement under § 7106(b)(3) of the Statute, and (2) does not abrogate the exercise of a management right.

      A collective bargaining agreement provision constitutes an arrangement within the meaning of § 7106(b)(3) if it is intended to provide relief to ameliorate the adverse effects flowing from the exercise of a management right. See id. at 1236-37. There was specific testimony from union witnesses on the intent of Article 3 and Article 18. The Arbitrator noted testimony that the use of quarterly rosters of work assignments, with preference requests considered in the order of seniority "was to take favoritism out of [assignments]" and "to make it as fair as possible for everyone involved." Award at 19. Accordingly, we find that the provisions constitute arrangements under § 7106(b)(3) of the Statute. See NAGE Local R5-82, 43 FLRA 25, 39 (1991) (provision limiting the duration of details to ensure fairness constituted an arrangement within the meaning of § 7106(b)(3)).

      With respect to the second part of the Customs Service test, an award abrogates a management right when the award precludes an agency from exercising that right. See FAA, 55 FLRA at 1237. We find that the provisions enforced by the Arbitrator do not abrogate management's right to assign work because whatever the duration of assignments under the rotation schedule, all work necessary to accomplish the Agency's mission will be performed at all times the agency deems it necessary.

      In claiming that the award does not satisfy prong I, the Agency argues that the provisions are not sufficiently tailored to be within the duty to bargain. This argument is unavailing.

      In determining whether a proposal is within the duty to bargain in a negotiability proceeding, the Authority examines whether a claimed arrangement is sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management rights. See, e.g., POPA, 56 FLRA 69, 71 (2000). As the Authority has explained, § 7106(b)(3) brings within the duty to bargain proposals that provide the "balm" to be administered "only to hurts arising from" the exercise of a management right. See id. The requirement that an arrangement must be tailored is based on the language of § 7106(b)(3), which requires that the Authority assure that arrangements redress employees adversely affected by a management action. See United States Dep't of the Interior v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992). In determining whether a proposal is within the scope of bargaining in a negotiability proceeding, it is necessary to review the proposal in all of its possible applications.

      In contrast, in an arbitration proceeding, what is reviewed is the provision of the agreement, as specifically interpreted and applied by the arbitrator to particular aggrieved employees. See Customs Service, 37 FLRA at 314. Thus, in arbitration cases, balms are inherently administered only to hurts arising from the exercise of a management right. Contrary to our dissenting colleague, we conclude that the application of a provision to actual, aggrieved parties, satisfies the tailoring objective, i.e., that the arrangement redress employees adversely affected by the exercise of a management right.

      In terms of this case, Article 3 and Article 18 have been applied by the Arbitrator to redress employees who were adversely affected by the exercise of a management's right. Accordingly, as Article 3 and Article 18 constitute arrangements the enforcement of which does not abrogate management's right to assign work, we conclude that Article 3 and Article 18 constitute contract provisions negotiated pursuant to § 7106(b)(3) and that the award satisfies prong I of BEP.

      The Agency does not argue that the award fails to satisfy prong II of BEP. Consequently, we do not address prong II. See United States Dep't of the Navy, Naval Undersea Warfare Ctr. Div., Keyport, Wash., 55 FLRA 884, 887 (1999) (Authority found that award satisfied prong I when the agency focused its arguments exclusively on prong II); United States Dep't of Def., Departments of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 41 (1998) (Authority found that the agency effectively conceded that award satisfied prong I when it focused its arguments on reconstruction); United States Dep't of Def., Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 54 FLRA 487, 491-92 (1998) (Authority did not address prong I when the agency only disputed prong II). Accordingly, the Agency fails to establish that the award conflicts with § 7106(a)(2)(B).

C.     The award is not contrary to management's right to determine its internal security practices

      Management's right to determine its internal security practices under § 7106(a)(1) of the Statute includes the right to determine the policies and practices that are part of an agency's plan to secure and safeguard its personnel and physical property and to prevent the disruption of the agency's activities and operations. See, e.g., Social Sec. Admin., Baltimore, Md., 55 FLRA 498, 502 [ v57 p161 ] (1999). When there is a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice, the Authority will find that the disputed practice constitutes the exercise by management of its right under § 7106(a)(1) to determine its internal security practices. See id.

      We conclude that the Agency has established that the disputed practice of work assignments of a duration of 6 or 9 months is sufficiently linked to the goal of safeguarding personnel or property or of preventing disruption of agency operations so as to constitute an exercise of its right to determine its internal security practices. See AFGE, AFL-CIO, Local 683, 30 FLRA 497, 500 (1987) (AFGE Local 683) (determination of the duration of a shift rotation constituted an exercise of the agency's right to determine its internal security practices). Accordingly, by limiting the duration of work assignments to 3 months, the award affects management's right to determine its internal security practices under § 7106(a)(1). See id. Consequently, it is necessary to examine whether the award satisfies BEP.

      In claiming that the award does not satisfy prong I with respect to internal security, the Agency makes two arguments. First, it repeats the claim that the provisions are not sufficiently tailored to be within the duty to bargain. Second, it claims that the Arbitrator's enforcement of the provisions "completely negates" and excessively interferes with its right to determine internal security practices. Exceptions at 12. In dissent, Chairman Cabaniss would find abrogation, but, more fundamentally, asserts that the Statute requires "the use of an `excessive interference' test to determine whether a matter violates § 7106(b)(3)." See Dissent, slip op at 14.

      As noted above, Article 3 and Article 18 were negotiated to ameliorate the effects of the exercise of management rights and have been applied by the Arbitrator to redress only those employees who were adversely affected by the exercise of a management right. Accordingly, we conclude that the provisions constitute arrangements under § 7106(b)(3) of the Statute for employees adversely affected by management's right to determine its internal security practices under § 7106(a)(1). See NAGE Local R5-82, 43 FLRA 25, 39 (1991) (provision limiting the duration of details to ensure fairness constituted an arrangement within the meaning of § 7106(b)(3)).

      We reject the argument that the Arbitrator's enforcement of the provisions completely negated its decision on a security issue. The award merely requires the Agency to adhere to its agreement to use 3-month rotations. It does not preclude management from adopting other measures to address the "control of potentially dangerous and manipulative inmates." Exceptions at 9. Therefore, the award does not abrogate or completely negate management's right. See Customs Service, 37 FLRA at 314 (an award that abrogates a management right is an award that "precludes" management from exercising the right); cf. AFGE Local 3302, 37 FLRA 350, 360 (1990) (proposal 3) (proposal did not "totally negate" management's right because it did not "preclude" management from supplementing its internal security practices by adopting other measures to address the problem of disruptive clients).

      Our dissenting colleague would find abrogation because of the special security considerations attendant to Federal correctional facilities. We disagree. We find no abrogation even considering security concerns. Accordingly, we conclude that Article 3 and Article 18 constitute contract provisions negotiated pursuant to § 7106(b)(3) and that the award satisfies prong I of BEP.

      We also reject any reliance on an excessive interference standard in claiming that the provisions impermissibly affect management's right to determine its internal security practices. The Authority has specifically held in applying the BEP framework that "negotiability cases employing an `interference' analysis do not control the abrogation analysis required under Customs Service." See FAA, 55 FLRA at 1237; see also Customs Service, 37 FLRA at 313-16 (refusing to apply an excessive interference standard prior to BEP).

      In this regard, for the past 11 years, Customs Service has provided the uncontested approach of the Authority to the question of whether an arbitrator has enforced a contract provision consistent with § 7106(b)(3) of the Statute. Specifically, the Authority has uniformly ruled that when an arbitrator has enforced an arrangement negotiated by the parties in a manner that does not abrogate the exercise of a management right, the enforcement is consistent with § 7106(b)(3) of the Statute. In view of this settled approach and the fact that the Agency has not asked us to reexamine Customs Service, we see no reason to depart from this well-established precedent in this case. Accordingly, we reaffirm the holding in FAA, 55 FLRA at 1237, in which our dissenting colleague joined, that "negotiability cases employing an `interference' analysis do not control the abrogation analysis required under Customs Service."

      Moreover, we are persuaded that abrogation remains the correct analysis when resolving exceptions to arbitration awards. In Customs Service, the Authority recognized that under § 7122(a)(1), the question for [ v57 p162 ] determination is whether the award is contrary to law, namely § 7106. The Authority found this determination to be fundamentally different from the issue and determination of the extent of the duty to bargain under § 7117 of the Statute. For these reasons, the Authority determined that it would "not apply the test established in KANG to determine whether the provision excessively interferes with the exercise of a management right. This is a matter for the negotiation process under the Statute." 37 FLRA at 314. The Authority explained that this approach "more fully carries out the purposes of the Statute because it recognizes the fundamental differences under the Statute between the process for negotiation of a collective bargaining agreement and the process for enforcement of the collective bargaining agreement." Id. at 315.

      In establishing the Customs Service framework, the Authority adhered to the legal principle of § 7106 that management rights cannot be waived. See id. at 316. Restating the waiver principle in terms of an enforcement standard, the Authority concluded that "[s]ection 7106 prohibits an agency from agreeing to a provision that abrogates management's rights." Id. The Authority ruled that it would "examine the award for abrogation because an award that abrogates, that is, precludes an agency from exercising, a management right inherently cannot constitute an appropriate arrangement under section 7106(b)(3)." Id. at 314. The Authority explained that "[i]f it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute." Id. Simply stated, a provision that abrogates the exercise of a management right is unenforceable in all circumstances because it constitutes the waiver of the right and, as a result, is contrary to law. Short of abrogation, however, parties are free to agree to provisions (even if they would not otherwise be required to bargain over them) and, once agreement is reached, the provisions are enforceable. [n3] 

      As the Authority explained in Customs Service, parties should assess during bargaining the effect of the provision on management's rights and the benefits to employees from the provision. In other words, employers and unions should determine, through the collective bargaining process, what provisions best fit their working conditions and what arrangements are "appropriate." Thus, Customs Service reflects a justifiable reluctance on the part of the Authority to substitute its judgment on the wisdom of bargaining, or the merits of particular terms, for that of the parties who have reached agreement on the contract provision.

      Our dissenting colleague has noted that when provisions have been disapproved under § 7114(c) the dispositive question is not whether the provision is within the duty to bargain, but like the question under § 7122(a)(1), whether the provision is "in accordance with" law, rule, or regulation. In this regard, both sections require compliance with applicable laws. In considering this point, we conclude that for the reasons set forth in Custom Service, the Authority should be reluctant to substitute its judgment for the wisdom of the parties who have reached agreement on the appropriateness of an arrangement, provided the provision constitutes an arrangement and does not abrogate the exercise of any management right. Accordingly, it appears appropriate to reexamine at the first opportunity the application of the excessive interference standard in cases where a provision has been disapproved under § 7114(c). [n4] 

      Finally, contrary to the view of the dissent, the Authority does not provide arbitrators deference when none is permitted in the de novo review of exceptions contending that the award is contrary to § 7106. Under Customs Service, the Authority reviews de novo the legal standard applicable to the assessment of whether an arbitrator has enforced a contract provision consistent with § 7106(b)(3). As clearly reflected by United States Dep't of Def., Def. Mapping Agency Aerospace Ctr., St. Louis, Mo., 39 FLRA 286 (1991), the Authority does not defer to the arbitrator's legal conclusions under § 7106(b)(3) of the Statute. As relevant here, the Authority defers to an arbitrator's determination of what a contract provision means, not whether, given that interpretation, the provision is enforceable. [ v57 p163 ]

      The Agency does not argue that as it relates to management's right to determine its internal security practices, the award fails to satisfy prong II. Accordingly, we do not address prong II, and we conclude that the Agency fails to establish that the award conflicts with § 7106(a)(1).

      In sum, we reject the Agency's contention that the award is contrary to either § 7106(a)(2)(B) or § 7106(a)(1), and we deny the Agency's exception.

V.      Decision

      The Agency's exception is denied.


Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from my colleagues on the limited issue of whether the Arbitrator's imposition of a temporal limitation on shift rotations violates the Agency's § 7106(a)(1) right to determine its internal security practices. In that regard, I disagree with the analysis used to arrive at that conclusion, and with the majority's assessment of whether that right has been violated, even when utilizing the analysis being challenged.

      The right of an arbitrator to interpret a collective bargaining agreement is extremely broad, but is not without limit. One discussion of this right is in the Authority's caselaw pertaining to essence exceptions to arbitration awards, i.e., where one party challenges an arbitral interpretation of the parties' collective bargaining agreement. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find an award deficient (based upon an essence analysis) when the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      There is no such deferential standard, however, when an arbitrator's contract interpretation is challenged as being contrary to law, rule, or regulation: the analysis of the arbitrator's rationale is done de novo, and one looks at whether the arbitrator's reasoning is consistent with the "applicable standard of law," to determine whether the award violates § 7122(a)(1), i.e., whether it is contrary to law. That "applicable standard of law" is § 7106(b)(3) in this instance, and our caselaw uses § 7106(b)(3) to determine whether the language in question "excessively interferes" with an agency's § 7106(a) rights. Section 7106(b)(3) does not recognize or authorize the ability to use one § 7106(b)(3) "appropriate arrangement" legal standard for the negotiation of collective bargaining agreements (which must not "excessively interfere" with § 7106(a) rights), then create a different § 7106(b)(3) "appropriate arrangement" legal standard for the interpretation of those same collective bargaining agreements (which must not "abrogate" § 7106(a) rights). This attempted distinction is not provided [ v57 p164 ] for by §§ 7106 or 7122, and is not otherwise supportable.

      Section 7114 of our Statute confirms that a § 7106(b)(3) conflict (or other matters discussed below) does not change after the appropriate arrangement language has gone into effect. Section 7114(c)(2) reflects an agency's right to review a collective bargaining agreement to determine whether it is in accordance with "the provisions of this chapter and any other applicable law, rule, or regulation." Actions taken to ensure that a provision is "in accordance with the provisions of this chapter" include, inter alia, whether a provision excessively interferes with the agency's rights and thus is barred by § 7106(b)(3). See, e.g., NTEU, 55 FLRA 1174 (1999) (disapproval of provision caused examination to determine whether provision excessively interfered with agency rights, in conflict with § 7106(b)(3)). Section 7114(c)(3) notes that, even where an agency does not approve or disapprove an agreement under § 7114(c)(2), the agreement then goes into effect and is binding, subject to those same "provisions of this chapter and any other applicable law, rule, or regulation."

      Authority precedent does not change this conclusion. In AFGE, AFL-CIO, Local 1858, 4 FLRA 361, 362 (1980), the Authority held that an agency's failure to disapprove a provision does not otherwise make enforceable a provision that is contrary to the Statute or any other applicable law, rule, or regulation. In Veterans Admin., Washington, D.C. and Veterans Admin. Medical Center, Minneapolis, Mn., 15 FLRA 948, 953 (1984), the Authority dismissed a complaint against an agency accused of refusing to abide by certain already agreed to provisions that the agency believed were in violation of "applicable law." The Authority held that, even though the agency's disavowal of the legality of the provisions was not timely under § 7114(c)(2), "such tardiness does not alter the result" of the agency's actions because of § 7114(c)(3). Id. Consequently, I fail to see any basis for not finding that the standard of review under § 7114(c)(3) is the same as the standard of review under § 7114(c)(2), i.e., the use of an "excessive interference" test to determine whether a matter violates § 7106(b)(3).

      In light of this statutory directive regarding the interpretation of collective bargaining provisions, regardless of whether the provision in question was challenged pursuant to agency head review, I find no justifiable basis for subjecting § 7106(b)(3) to a different interpretation (vis-a-vis an agency's § 7106(a) rights) when the same issue comes before an arbitrator. This lack of a justifiable basis is further reinforced by the fact that no other "provisions of this chapter and any other applicable law, rule, or regulation" discussed in § 7114(c)(3) are subjected to a different process when in arbitration. Most notably, § 7106(b)(2) is interpreted in the same manner regardless of whether the entity interpreting it is the Authority or an arbitrator. See United States Dep't of Health and Human Services, Social Security Admin., Baltimore, Md., 41 FLRA 1052, 1054 (1991) (Authority held that arbitrators must apply Authority precedent in interpreting the Statute).

      While I acknowledge the information set out in the majority's footnote 3, I do not concur with the implication from that footnote or the discussion that precedes it in the majority opinion. Information on the enforceability of contract provisions, especially ones pertaining to permissive subjects of negotiation, provides little in the way of guidance regarding contract provisions encompassing what the Authority's negotiability caselaw would classify as prohibited subjects of bargaining. In that regard as well, I do not believe that an agency has the ability, short of abrogation, to negotiate a provision that violates its § 7106(a) rights as determined by our negotiability caselaw. The Authority has stated that a reserved management right under § 7106 cannot be waived by collective bargaining. See NLRB Union, Local 21, 36 FLRA 853, 860 (1990), citing to Michigan ANG, Selfridge ANG Base, Mi., 34 FLRA 296, 298 (1990), and OEA v. FLRA, 827 F.2d 814, 819 (D.C. Cir. 1987). I know of nothing that permits an arbitrator to require an agency to engage in some action that the agency itself could not do, and to permit an arbitrator the ability to do just that in this matter results in a violation of both §§ 7106 and 7114, and hence a violation of § 7122(a).

      I would also find that the Authority's negotiability caselaw establishes the kind of substantive rights under a statute that are incorporated into a negotiated grievance procedure. See, e.g., NTEU, 53 FLRA 1469, 1490 (1998) (hereinafter FDIC). In FDIC, the Authority discussed the differences between substantive rights and procedural rights, and noted that standards and burdens of proof are substantive in nature. Id. In discussing why a statute of limitations under 29 U.S.C. § 255(a) was substantive rather than procedural, the Authority noted that the statute in question "establishes standards by which violations of the FLSA [Fair Labor Standards Act] are to be judged, and supports a finding that Congress viewed this section as a substantive part of the FLSA." Id.

      In assessing § 7106 against these comments, few would have difficulty finding that statute (and its implementing precedent) to be substantive rather than procedural in nature. It clearly establishes standards by which [ v57 p165 ] bargaining proposals and provisions, and conduct based thereon, are judged. Put another way, § 7106 affirmatively establishes both limitations and entitlements upon the rights and obligations of agencies and unions. Few statutes have such a substantive impact on the parties affected by it. Therefore, I would also rely on this line of Authority precedent to find adherence to Authority negotiability precedent to be nondiscretionary on the part of arbitrators.

      In contrast to these concerns, the Customs Service decision essentially argues that negotiation of agreements, and arbitral interpretation of those same agreements, are different. What Customs Service does is to conflate the distinction between an arbitrator's deference in determining what a contract means (an essence analysis) with the total lack of deference to that same interpretation in terms of whether it conflicts with law (a de novo analysis).

      It is apparent that the Customs Service decision disregards that distinction by attempting to provide arbitral deference where none is permitted. Several portions of the Customs Service decision are illustrative of this conflation. That decision rejected use of the excessive interference test because it "unduly impinges on the role of arbitration and arbitrators under the Statute." 37 FLRA at 315. The Authority also went on to explain that it believed Congress expected it to "narrowly review" arbitration awards. Id. at 315-16. The Authority's discussion is replete with references to narrow review authority and speaks in terms of all arbitration awards, yet we now know (and it is undisputed) that legal challenges to arbitration awards are not subject to some deferential standard regarding the arbitrator's application of law, rule, or regulation to the parties' agreement, and that the arbitration exception process does "impinge" on arbitrators as to legal issues by denying them the deference normally accorded them. While there may have been some doubt by the Authority in 1990 as to the extent to which an arbitrator's legal analyses would be accorded no deference, that doubt was eliminated by the decision of United States Dep't of the Treasury, United States Customs Service, 43 F.3d 682, 686-87 (D.C. Cir. 1994), which stated that reviews of such legal questions would be "de novo." Id.

      Therefore, I view the Authority's Customs Service decision as providing no basis for the result urged here, and would overturn it as being in violation of §§ 7106 and 7114, and hence § 7122(a) of our Statute. Accordingly, I would utilize the Authority's negotiability precedent regarding "appropriate arrangements" to review the Agency's exceptions, including application of the "tailoring" requirement to the arbitrator's interpretation of the provision.

      In the present matter, based upon Authority precedent, I would find the award to excessively interfere with the Agency's right to deter