United States, Department of Homeland Security, United States, Customs and Border Protection, Port of Seattle, Seattle, Washington (Agency) and National Treasury Employees Union, Chapter 139 (Union)

[ v60 p490 ]

60 FLRA No. 97

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES
CUSTOMS AND BORDER PROTECTION
PORT OF SEATTLE
SEATTLE, WASHINGTON
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 139
(Union)

0-AR-3785

_____

DECISION

December 17, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo 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 filed an opposition to the Agency's exceptions.

      The grievance alleged that the Agency violated § 7116(a)(1) and (5) of the Statute by refusing to bargain over the impact and implementation of changes in overtime assignment practices at the local level at the Port of Seattle. The Arbitrator sustained the grievance and ordered a status quo ante remedy along with backpay for all affected employees.

      For the following reasons, and consistent with our decision in NTEU, Chapter 137, 60 FLRA No. 96 (Dec. 17, 2004), decided this date, we find that the award is deficient as contrary to law. Accordingly, we set aside the award.

II.     Background and Arbitrator's Award

      This case, like NTEU, Chapter 137, arises out of a dispute stemming from the implementation in 2001 of the revised National Inspectional Assignment Policy (RNIAP) by the Agency at the national level. [n2]  The RNIAP replaced an earlier NIAP that had been negotiated and implemented in 1995 by the parties at the national level. The 1995 NIAP provided for the local negotiation of matters set forth in § 7106(b)(1) of the Statute, including staffing levels and tours of duty at the local level.

      As relevant here, a Local Inspectional Assignment Policy (LIAP) was negotiated by the parties at the local level for the Port of Seattle. The Seattle LIAP "generally provided for a port-wide equalization of overtime, setting out procedures for assigning and canceling overtime so as to effectuate equalization of overtime." Award at 5.

      By letter dated August 2, 2001, the Agency notified the National Treasury Employees Union (the national Union) that it no longer intended to be bound by provisions in the parties' National Labor Agreement (NLA), in which the Agency had agreed to bargain over § 7106(b)(1) matters. [n3]  The letter also stated that the Agency would not be bound by provisions in other agreements, including the 1995 NIAP and existing LIAPs, "which contain provisions that involve § 7106(b)(1) matters, including several that require local level bargaining on such things as minimum staffing levels and tours of duty." Jt. Exhibit D. Along with this letter, the Agency transmitted a copy of its proposed RNIAP, which included the following language in Section 3 entitled "Precedence and Function:"

The policies and procedures contained in this [RNIAP] take precedence over any and all other agreements, policies, or other documents or practices executed or applied by the parties previously, at either the national or local levels, concerning the matters covered within this [RNIAP].
The policies and procedures [in the RNIAP] reflect the parties' full and complete agreement on the matters contained and addressed herein. No further obligation to consult, confer, or negotiate, either upon substance or impact and implementation of any decision or action, shall arise upon the exercise of any provision, procedure, right or responsibility addressed or contained within this [RNIAP].

Award at 4. [ v60 p491 ]

      After receiving the August 2 letter and the proposed RNIAP, the national Union requested bargaining over the impact and implementation of the RNIAP. The national Union also indicated that it intended to renegotiate provisions of the NLA along with the proposed RNIAP. The national Union proposed certain ground rules for the negotiations; however, the national Union and Agency did not reach agreement on these ground rules.

      Following an exchange of correspondence, the Agency implemented the proposed RNIAP nationwide on October 1, 2001, and notified the national Union on that date that it was doing so. [n4]  The Agency directed Field managers "to implement the terms of the RNIAP without further bargaining with the Union at any level." Id. at 5.

      As relevant here, following the implementation of the RNIAP, the Agency notified NTEU, Chapter 139 (the local Union) of changes to the Seattle LIAP that it intended to make pursuant to the RNIAP. The local Union's chapter president requested bargaining over the changes. In response to the local Union's request, the Agency's Port Director advised the local president "that the changes to the negotiated local overtime policy were within the purview of the management rights clause under the Statute and the substance of the changes w[ere] non-negotiable." Id. at 5. The Agency's Port Director also claimed that under the RNIAP, she was not obligated to negotiate the impact and implementation of the changes. Id.

      Subsequently, a grievance was filed alleging that the Agency had committed an unfair labor practice by its refusal to negotiate over the local changes. The Agency implemented "Overtime Assignment Guidelines" at the Port of Seattle. These Overtime Assignment Guidelines changed provisions of the pre-existing Seattle LIAP concerning the equalization of overtime and the procedures for the assignment of and participation in overtime. Arbitration of the implementation of the Overtime Assignment Guidelines was later invoked.

      The parties did not stipulate to the issues to be resolved by the Arbitrator. The Arbitrator framed the issues as follows:

Is the grievance arbitrable?
If so, did the Agency violate applicable law when it unilaterally changed conditions of employment and refused to negotiate with the Union? If so, what should the remedy be? Id. at 3.

      The Arbitrator found that the grievance was arbitrable. The Arbitrator rejected the Agency's argument that the grievance was barred by § 7116(d) of the Statute since the same or similar facts and issues were raised in the Customs Service arbitration concerning the implementation of the RNIAP and exceptions to the award in Customs Service were then pending on appeal before the Authority. [n5]  The Arbitrator found that he was not obligated to adopt or adhere to the arbitrator's award in Customs Service and reviewed the parties' arguments de novo.

      The Arbitrator sustained the grievance. The Arbitrator rejected the Agency's argument that it was not obligated to engage in impact and implementation bargaining at the local level in the Port of Seattle since the changes were covered by the RNIAP. The Arbitrator found that the Authority's "covered by" doctrine applies only when there is a "`collective bargaining agreement'" that has been "produced through the joint efforts of the parties (either traditional bargaining or interest proceedings) . . . [and] cannot, in any event[,] be created through the unilateral implementation of one party." Id. at 13-14.

      The Arbitrator also rejected the Agency's claims that it had no duty to bargain at the local level since the level of recognition is at the national level and the RNIAP repudiated the Agency's prior election at the national level to bargain locally on these matters as set forth in Article 37 of the parties' expired NLA. In this respect, the Arbitrator found that the Agency failed to provide specific notice revoking the portions of Article 37 of the parties' NLA that required notice and bargaining at the local level, and further found that the Agency had no intention of rescinding those portions of the NLA. The Arbitrator also found that the RNIAP and the August 2 transmittal letter repudiated bargaining obligations only as to § 7106(b)(1) matters, but did not repudiate the Agency's obligation to bargain at the local level under Sections 3 and 6 of Article 37. [n6] 

      The Arbitrator further concluded that the Section 3 Precedence provision of the RNIAP did not waive the Union's right to bargain over the impact and implementation [ v60 p492 ] of local changes. The Arbitrator found that "[e]ven assuming [that the Union] waived [its] right to bargain over the [RNIAP], it certainly did not waive its in futuro statutory and contractual bargaining rights by `agreeing' to the Agency's proposed zipper clause[,]" in Section 3 of the RNIAP. Id. at 18. The Arbitrator noted that the Union "submitted proposals that clearly rejected the `precedence clause'" under Section 3 of the RNIAP. Id. at 19.

      Lastly, the Arbitrator found insufficient evidence to justify the local, unilateral implementation of the RNIAP on the basis of national emergency.

      Applying the factors in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), the Arbitrator concluded that a status quo ante remedy was appropriate and that the Agency was liable for backpay for all employees affected by the adverse monetary impact of the Agency's failure to bargain on the local changes in the Port of Seattle.

III.     Agency's Exceptions

      The Agency asserts that the Arbitrator misapplied Authority case law and § 7116(d) of the Statute in finding that this dispute was arbitrable. [n7] 

      The Agency also asserts that any changes instituted by local management on or after implementation of the RNIAP are covered by that policy and the Agency had no duty to bargain over such changes at the local level. Alternatively, the Agency maintains that even if the Union at the national level had not waived its right to bargain on the RNIAP, bargaining on inspectional assignments at the local level (as opposed to at the national level of recognition) involves a permissive subject regarding which the Agency is not obligated to bargain. In this respect, the Agency maintains that it provided sufficient notice to the Union at the national level that it would not bargain over permissive subjects such as § 7106(b)(1) matters after expiration of the NLA at "any organization subdivision" level, and "specifically repudiated local inspectional assignment agreements and local level bargaining" on this subject. Exceptions at 24 (citing August 2, 2001 letter sent to national Union with proposed RNIAP).

      The Agency also maintains that clauses 3 and 4 of the RNIAP supersede any previous local agreements and practices concerning inspectional assignments, and require the parties to conduct impact and implementation bargaining on procedures and appropriate arrangements at the national level. Id. at 19-20 n.7 (citing United States Border Patrol Livermore Sector, Dublin, Cal., 58 FLRA 231 (2002)) (Border Patrol). Thus, the Agency asserts that since the level of recognition is at the national level, the Union cannot insist on bargaining on inspectional assignment policies and procedures at the local level.

      In addition, the Agency maintains that the Arbitrator's consideration of the validity of the RNIAP was precluded by Article 31, Section 13 of the parties' agreement, which according to the Agency, requires that any challenge to a national policy such as the RNIAP must be disputed at the national level and cannot be raised locally by the Union in this case.

      The Agency maintains that even if the Authority finds that the implementation of the RNIAP violated the Statute and/or the NLA, a status quo ante remedy is not warranted and would unduly disrupt Agency operations. The Agency also maintains that the status quo ante remedy constitutes an excessive interference with its right to assign work and to determine the numbers, types and grades of employees. In addition, the Agency asserts that "payment of back pay for purportedly missed overtime assignments would be unwarranted as the incidence of overtime opportunities and the number of hours of work have markedly increased, rather than decreased, since the implementation of the revised NIAP." Id. at 27.

IV.     Union's Opposition

      The Union contends that the Agency improperly conflates the "categorically distinct and separate legal theories" under the covered by and waiver doctrines. Opposition at 20-21. The Union maintains that the Arbitrator's rejection of the Agency's covered by claim [ v60 p493 ] in this case is well grounded in Authority precedent, which "appl[ies] only in circumstances in which an agency asserts that it has no obligation to bargain based on the terms of a negotiated agreement." Id. at 22 (citing United States DHHS, Social Sec. Admin., 47 FLRA 1004, 1016 (1993) (DHHS)). Also, the Union maintains that the Arbitrator properly rejected the Agency's argument that the Union waived its right to bargain over the RNIAP based on record evidence that it clearly indicated that the Union intended to negotiate the RNIAP and submitted proposals rejecting portions of the RNIAP.

      The Union maintains that the Arbitrator properly found that the Agency's August 2 transmittal letter did rescind the obligation to bargain § 7106(b)(1) matters, but that this letter was not sufficient to terminate the Agency's impact and implementation bargaining obligations at the local level under Sections 3 and 6 of Article 37 of the parties' expired NLA. The Union asserts that this case does not involve the Agency's failure to bargain over § 7106(b)(1) matters, but rather its failure to bargain over the impact and implementation of the changes in overtime assignment policies at the Port of Seattle. Id. at 40. In addition, the Union maintains that § 2429.5 of the Authority's Regulations bars the Agency's claim that the Arbitrator's consideration of the validity of the RNIAP was precluded by Article 31, Section 13 of the parties' agreement.

      Lastly, the Union maintains that the Arbitrator properly ordered a status quo ante remedy. In this respect, the Union maintains that there is no evidence to support the Agency's claims that returning to the prior overtime policies will cause a disruption to the Agency's operations. Similarly, the Union maintains that the award of backpay is proper under Authority precedent.

V.     Analysis and Conclusions

      The Agency excepts to the Arbitrator's award under § 7122(a)(1) of the Statute on the ground, inter alia, that the Arbitrator erred as a matter of law in finding that it violated the Statute by improperly refusing to bargain with the Union at the local level over the changes in overtime assignment policies at the Port of Seattle. As the Agency's exception concerns whether the award is contrary to law, the Authority's review is de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dept's of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The dispute in this case concerns the Agency's obligation to bargain, at the local level, with respect to inspectional overtime assignment matters at the Port of Seattle. In NTEU, Chapter 137, the Authority addressed and resolved the same issue concerning the Agency's obligations to bargain at the local level on inspectional overtime assignment related matters at another facility after the implementation of the RNIAP. [n8] 

      In NTEU, Chapter 137, the Authority found that under section 3 of the lawfully implemented RNIAP, the Agency terminated its obligation to bargain at the local level over inspectional assignment matters. In reaching this conclusion, the Authority explained that the statutory bargaining obligation with respect to inspectional assignment matters resides at the national level consistent with the parties' level of exclusive recognition at the national level. The Authority noted that under Authority precedent, it is well established that there is no statutory obligation to bargain below the level of recognition. The Authority further explained that consistent with the parties' ability to negotiate over permissive subjects of bargaining, the parties at the national level agreed to negotiate at levels below the level of exclusive recognition -- that is, at local levels -- over LIAPs that addressed staffing practices based on the specific needs of each port. NTEU, Chapter 137, 60 FLRA No. 96, slip op. at 9-10 (citations omitted). As a consequence of this delegation, the local Union and local Agency management negotiated the 1996 LIAP, which covered local matters and applied to employees at the Fort Pierce facility. [n9] 

      As relevant here, the Authority found that when the parties' NLA expired in 1999, either party was free to lawfully terminate permissively negotiated matters. Id., slip op. at 10 (citing Border Patrol, 58 FLRA at 233 n.5) [ v60 p494 ] (permissive terms of an expired contract remain in effect but may be unilaterally terminated by either party upon expiration of agreement); see also United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 206 (1999) (FCI Danbury) ("A party's right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change."). The Authority found that the Agency acted in accordance with the foregoing precedent when it lawfully implemented section 3 of the RNIAP, which terminated its obligation under Article 37 of the expired NLA and NIAP to bargain at the local level over inspectional assignment matters. [n10] 

      Specifically, the Authority found that

By its terms, section 3 established the RNIAP as the governing policies and procedures with respect to inspectional assignment matters "over any and all other agreements" at the local level, and terminated the Agency's obligation to bargain at the local level over such matters. In addition, consistent with the clear terms of section 3, the Agency's August 2, 2001 letter to the national Union stated specifically that the Agency would no longer be bound by provisions in LIAPs, including those that required local level bargaining on such matters as minimum staffing levels and tours of duty.
Consistent with its clear terms, section 3 terminated locally negotiated agreements concerning inspectional assignment matters, as well as the Agency's obligation to bargain at the local level regarding such matters. Moreover, the Agency's termination of its obligation to bargain at the local level concerning inspectional assignment matters under section 3 is consistent with its right to terminate permissive terms of expired agreements -- including Article 37 of the parties' 1999 NLA and the 1995 NIAP - under Authority precedent as discussed above, and is, therefore, lawful. Thus, the Arbitrator's conclusion that, following the Agency's lawful implementation of the RNIAP, the Agency did not have an obligation to bargain at the local level over the change in Sunday overtime assignment to supervisory personnel at Fort Pierce is consistent with law.

NTEU, Chapter 137, 60 FLRA No. 96, slip op. at 11-12 (footnote omitted).

      For the same reasons stated in NTEU, Chapter 137, we also find in this case that the Agency did not have any obligation to bargain at the local level over the changes in overtime assignment practices at the Port of Seattle. As we found in NTEU, Chapter 137, Section 3 of the lawfully implemented RNIAP effectively terminated the Agency's (permissively negotiated) obligations to bargain at the local level over inspectional assignment matters under Article 37 of the parties' expired NLA and the NIAP. [n11]  Consistent with the foregoing, we find that the Arbitrator's award finding a violation of the Statute for not engaging in such bargaining is deficient as contrary to law.

      In sum, this case concerns solely the Agency's obligation to bargain at the local level regarding the assignment-related changes made at the Port of Seattle. The Agency was not obligated to bargain at the local level after Section 3 of the RNIAP became effective. Consistent with NTEU, Chapter 137, we find that the Arbitrator's award finding a violation of the Statute for not engaging in such local bargaining is deficient. [n12] 

VI.     Decision

      The award is set aside. [ v60 p495 ]


Concurring opinion of Chairman Cabaniss:

      As with the case in NTEU, Chapter 137, I write separately to explain why I would find that the governing condition of employment in this case is a collective bargaining agreement rather than an agency regulation, and why the subject matter at issue here is thus "covered by" a collective bargaining agreement.

      Section 7103(a)(8) of our Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[.]" There is nothing in this agreement or our precedent that limits this definition to term agreements, for example, or precludes negotiations over the content of an agency regulation from being considered as a collective bargaining agreement. In that regard, § 7117(a)(2) recognizes that the content of agency rules or regulations are fully negotiable to the extent there is no "compelling need" for that regulation (a concept not applicable here). There is also nothing that mandates a finding that the concept of being "entered into" requires the mutual consent of the parties.

      Section 7103(a)(12) of our Statute defines "collective bargaining" as the mutual obligation to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement upon bargaining unit conditions of employment. That definition does not require that mutual agreement upon the terms of a collective bargaining agreement must be reached, to the contrary, the definition explicitly recognizes that "the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]" As also noted by the definition, there is no requirement that there be a signed document as part of this process.

      The record in this case indicates that the Agency in Customs Service submitted its proposed assignment policies to the collective bargaining process under the Statute, as it was required to do. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990). I find no basis for distinguishing the facts of this case so as to preclude a finding that the Agency fulfilled its obligation to engage in "collective bargaining" as defined by our Statute: I also would find no basis for not concluding that this agency regulation on assignment policies is "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[,]" i.e., that this is a collective bargaining agreement.

The Authority also has recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the Panel[,] after the parties have reached impasse. See, e.g., [United States INS I, 24 FLRA 786, 790 (1986)]. In these situations, the agency has, in effect, satisfied its bargaining obligation. (Footnote Omitted).

United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69, 73 (1999) (INS) (emphasis in the original). Based upon the above, as the Agency here has satisfied its collective bargaining obligation under the Statute, I find no basis for not concluding that there is a collective bargaining agreement establishing bargaining unit assignment policies. The fact that there is no apparent term (agreed upon length of time) to this collective bargaining agreement is immaterial, as there is no such requirement in our Statute or our precedent mandating such in order to become a collective bargaining agreement.

      I also would find that the issue of assignment policies is "covered by" this agreement, as I note no substantive rationale that would justify treating this agreement differently than any other agreement which has been reached through the collective bargaining process. As noted by the Authority in the INS decision, in each instance discussed an agency fulfills its bargaining obligation under the Statute, and any attempts to parse a distinction based upon the extent to which a union has agreed to the agreement is at odds with that decision and has no justifiable basis. Thus, I find no legally compelling basis for treating the collective bargaining agreement here any differently.



Footnote # 1 for 60 FLRA No. 97 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 97 - Authority's Decision

   The Authority concluded in United States Dep't of the Treasury, Customs Serv., Wash. D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs Service) petition for review filed sub nom. NTEU v. FLRA, No. 04-1137 (D.C. Cir. Apr. 22, 2004) that implementation of the RNIAP was lawful.


Footnote # 3 for 60 FLRA No. 97 - Authority's Decision

   The parties' NLA expired in 1999, but continues to be applied by the parties pending its re-negotiation.


Footnote # 4 for 60 FLRA No. 97 - Authority's Decision

   The national Union filed a grievance challenging the Agency's implementation of the RNIAP. As noted earlier, the Authority concluded in Customs Service that the Agency's implementation of the RNIAP was lawful.


Footnote # 5 for 60 FLRA No. 97 - Authority's Decision

   Section 7116(d) provides that:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

Footnote # 6 for 60 FLRA No. 97 - Authority's Decision

   Article 37 of the NLA provides, in relevant part, as follows:

Section 3
A. The Union will designate, in writing, official points of contact and alternates within each Port, Area[,] and Area Port, Customs Management Center and Headquarters field office, the Headquarters Office, the NTEU Field Office servicing the affected employees, and at the National level[,] to receive written notifications from the Employer of intended changes.
. . . .
Section 6
A. The parties agree that proposed changes which apply on a nationwide basis shall be negotiated at the National Office.
B. Proposed changes which apply only within one (1) organizational office will be negotiated within that office, or upon mutual agreement, at another organizational office. If a proposed change applies in more than one organizational office, the parties will determine the appropriate level(s) and location(s) for negotiating the proposed changes.

Opposition at 37-38.


Footnote # 7 for 60 FLRA No. 97 - Authority's Decision

   The Agency does not provide any arguments to support its claim that the Arbitrator erred in finding that this dispute was arbitrable. Consistent with Authority precedent, we deny the Agency's claim as a bare assertion. See, e.g., AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).


Footnote # 8 for 60 FLRA No. 97 - Authority's Decision

   Unlike this case, the arbitrator in NTEU, Chapter 137, had the opportunity to consider and apply the Authority's decision in Customs Service that the RNIAP was lawfully implemented since that decision was issued prior to the issuance of the award in NTEU, Chapter 137. As relevant here, in Customs Service, the Authority found, as an initial matter, that the Agency's implementation of the RNIAP constituted the Agency's exercise of its rights under § 7106(a) and § 7106(b)(1) of the Statute and, as a result, the Agency was obligated to bargain only over the impact and implementation of the RNIAP. The Authority concluded that the Union conditioned bargaining over the impact and implementation of the RNIAP on bargaining over a new term agreement to replace the expired NLA -- a matter that was outside the scope of the Agency's impact and implementation bargaining obligation concerning the RNIAP. Because the Union improperly conditioned bargaining over the impact and implementation of the RNIAP in this manner, the Authority concluded that the Agency had satisfied its bargaining obligation and, therefore, the Agency's unilateral implementation of the RNIAP was lawful.


Footnote # 9 for 60 FLRA No. 97 - Authority's Decision

   Similarly, in this case, the parties at the local level negotiated the Seattle LIAP that applied to local inspectional assignment matters at the Port of Seattle.


Footnote # 10 for 60 FLRA No. 97 - Authority's Decision

   As noted above, section 3 states, in pertinent part:

The policies and procedures contained in this [RNIAP] take precedence over any and all othe