United States, Department of Homeland Security, United States, Customs and Border Protection (Agency) and National Treasury Employees Union (Union)

[ v60 p496 ]

60 FLRA No. 98

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

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3768

_____

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 Barbara Doering 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 Union filed a grievance alleging that the Agency improperly failed to bargain at the local level over the use of National Guard personnel to conduct certain of its operations. The Arbitrator found that the Agency failed to bargain as required by the Statute and an applicable memorandum of understanding.

      For the following reasons, we find that the award is deficient and set it aside.

II.      Background and Arbitrator's Award

      Customs inspectors at the Port of Roosville, Montana have been assisted by personnel of the Montana National Guard (MNG) since 1993. The National Treasury Employees Union, Chapter 231 (the local Union) filed a grievance claiming that, in March 2002, Agency management began assigning only one armed customs inspector, rather than the two that it had been assigning, to work with MNG personnel on outbound operations, i.e., operations relating to traffic leaving the country headed north. The grievance asserted that the Agency had implemented this change in conditions of employment without meeting its bargaining obligations under the Statute and that the change violated certain specified contractual provisions. The grievance was ultimately submitted to arbitration.

      As found by the Arbitrator, the Agency had entered into agreements with the Department of Defense relating to the use of military personnel in Agency operations, had issued directives on this subject in 1991 and 2001, and had negotiated memoranda of understanding (1991 MOU and 2001 MOU) with the National Treasury Employees Union (the national Union) concerning implementation of the directives. In particular, the 2001 directive provided that "[National] Guard personnel are intended only to augment the U.S. Customs workforce." Award at 3 (quoting the 2001 directive, ¶ 5.4).

      The Arbitrator noted that the parties' 1991 MOU contained provisions requiring the Agency to negotiate over the impact and implementation of any expansion in the use of National Guard personnel and that the 2001 MOU provided that Customs Service will, upon request, "negotiate the impact of this directive on local agreements or standard operating procedures." Id. at 3, 4 n.1. As found by the Arbitrator, the Standard Operating Procedure (SOP) pertaining to outbound operations at the Port of Roosville provided that "[a] minimum of two armed inspectors should always be used during an operation for backup and safety purposes." Id. at 4.

      In addition, in 1995, the parties at the national level had jointly developed the National Inspectional Assignment Policy (NIAP). The NIAP prescribed policies and procedures governing work assignments and staffing decisions at Customs Service facilities. It provided for the negotiation at the local level over Local Inspectional Assignment Policies (LIAPs) which would address staffing practices based on the specific needs of each port.

      On August 2, 2001, the Agency notified the national Union that it would no longer be bound by provisions of agreements that pertained to permissive subjects and indicated its intent to no longer be bound by NIAP and the various LIAPS. Id. at 7. The Agency also transmitted to the national Union a draft of a revised NIAP (RNIAP). When bargaining over the RNIAP failed to produce an agreement, The Agency implemented it on October 1, 2001. The national Union grieved that implementation and the grievance subsequently was submitted to arbitration. The arbitrator who [ v60 p497 ] resolved that grievance ordered the Agency to bargain with the national Union over the RNIAP. [n2] 

      Because the parties in the instant case were unable to agree on a statement of the issues presented, the Arbitrator framed the issues as follows:

[W]hether the Agency's refusal to bargain about the change from assigning 2 armed inspectors to outbound operations to using only one Customs Inspector with an unarmed member of the Army National Guard violated the MOU regarding the National Guard Directive and/or 5 U.S.C. Section 7116(a)(1) and (5), and if so what is the proper remedy?

Award at 27.

      In resolving these issues, the Arbitrator first found that the use of MNG personnel to replace one armed customs inspector at Roosville constituted a change in the working conditions of customs inspectors at that port.

      With respect to the parties' legal arguments, the Arbitrator stated that either party had the right to "unilaterally terminate contract provisions resulting from permissive bargaining" because the parties' National Labor Agreement (NLA) had expired in 1999. Id. at 24. The Arbitrator rejected the Agency's argument that its notice to the national Union that it was terminating agreements concerning § 7106(b)(1) matters was sufficient to remove any obligation it had to bargain over use of MNG personnel at the local level. In this regard, the Arbitrator noted that the Agency's notice to the national Union "made no mention of the National Guard Directive or [the] MOU[.]" Id. Moreover, the Arbitrator found that, of the relevant provisions of the NLA, the Agency's notice only specifically mentioned the last paragraph of Article 37, Section 1.C., "but NOT other Sections or paragraphs of Article 37[.]" Id. (emphasis in original).

      Acknowledging that bargaining at the local level is a permissive matter, the Arbitrator nevertheless found that the Agency had not explicitly terminated Article 37, Section 6.B., which provided that proposed changes that apply only within one organizational office should be negotiated within that office. In addition, the Arbitrator found that the Agency had not given the national Union "adequate notice of repudiation" as to the 2001 MOU. Id. at 25. Noting that the Agency's notice of termination referenced agreements that were tied to the NLA, the Arbitrator found that the 2001 MOU "does not appear to be clearly tied to the expired [NLA]." Id. Consequently, the Arbitrator concluded that the Agency's notice to the national Union did not constitute "specific notice of intent to terminate the 2001 National Guard Directive MOU." Id.

      As to the Agency's argument that the subject matter of the grievance is "covered by" the RNIAP, the Arbitrator noted that the "covered by" doctrine applies to collective bargaining agreements and stated that the "[RNIAP] can only be considered a negotiated `agreement' on the basis of waiver." Id. In this regard, the Arbitrator noted that the arbitrator's award in Customs Service concluded that the national Union had not waived its right to bargain over implementation of the RNIAP. Further, with respect to the Agency's argument that the assignment of inspectors to work projects is subject to section 3 of the RNIAP, which establishes the precedence of the RNIAP over other agreements with respect to matters contained therein, the Arbitrator found that section 3 also did not waive the Union's right to bargain impact and implementation under the MOU and the Statute. [n3]  Moreover, noting the "safety rationale" of the SOP and the past practice, the Arbitrator found that the "central issue" in the grievance herein "is a change in practice with respect to working with unarmed outsiders," which "is not a subject taken up in the NIAP." Id. at 26.

      The Arbitrator also rejected the Agency's claim that a ruling in favor of the Union would excessively interfere with the Agency's exercise of its management rights. The Arbitrator noted that the issue in the case was whether the Agency improperly refused to bargain, and that the issue did not concern a specific Union proposal. She found that the Agency's commitment to bargain constituted an appropriate arrangement.

      Based on these findings, the Arbitrator concluded that the Agency violated the Statute and the MOU regarding the 2001 National Guard Directive, and awarded certain remedial relief. [ v60 p498 ]

III.      Agency's Exceptions

      The Agency contends that the Arbitrator's award is deficient under § 7122(a)(1) of the Statute because it is contrary to law on the grounds set forth below.

      First, the Agency contends that the award affects, and excessively interferes with, management's rights to: (1) determine its internal security practices under § 7106(a)(1) of the Statute; (2) assign work under § 7106(a)(2)(B); and (3) determine the numbers, types, and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty under § 7106(b)(1).

      Second, the Agency contends that the Arbitrator erroneously determined that the Agency's August 2, 2001, letter to the national Union was not sufficient notice to terminate all permissive matters to which the Agency had agreed in the NLA. In particular, the Agency asserts that the RNIAP which accompanied the August 2 letter was sufficient to constitute notice of an intent to terminate any obligation to bargain over "minimum staffing levels." Exceptions at 11.

      Third, referencing its position in Customs Service, the Agency argues that the Arbitrator erred by failing to find that the RNIAP superseded any obligation to bargain at the local level over inspectional assignments. Specifically, the Agency contends that the Arbitrator erred in finding that the Agency had not given sufficient notice to the Union to terminate "all local bargaining and agreements with respect to inspectional assignment." Id. at 20.

      Fourth, again referencing its position in Customs Service, the Agency contends that, by failing to complete bargaining over the RNIAP, the Union waived its bargaining rights as a matter of law over matters pertaining to inspectional assignment procedures.

      Fifth, the Agency claims that the Arbitrator erred by finding that matters as to the assignment of inspectors are not covered by the RNIAP and by relying on the award of the arbitrator in Customs Service to support that finding. The Agency maintains that it had no further duty to bargain at the local level over the impact and implementation of the change in inspectional assignment policy because it had already engaged in bargaining over those matters at the national level. Further, the Agency contends that bargaining at the local level is permissive and the Union cannot insist on such bargaining to impasse if the Agency does not agree to bargain at that level.

      Sixth, the Agency contends that the Arbitrator erred in finding that the Agency had a past practice of using two Customs Inspectors on outbound operations with unarmed National Guard personnel.

      The Agency also excepts to the Arbitrator's award on various private sector grounds. The Agency contends, in this regard, that: (1) the award fails to draw its essence from Article 37, Section 4 of the NLA because it does not take into account the fact that the national Union failed to bargain over the RNIAP; (2) the Arbitrator "erred in framing the issue as one that did not involve the assignment of two Customs Inspectors on the outbound operations"; (3) the award is based on a nonfact because, contrary to the Arbitrator's finding, the grievance did not raise an issue as to the impact of the 2001 Directive on local agreements and SOPs; and (4) the Arbitrator erred in finding that the Agency violated the SOP and the MOU on the basis that those documents were never negotiated with the Union.

IV.      Union's Opposition

      The Union contends that the Agency's management rights exception is inapposite because the Arbitrator "was not interpreting or attempting to enforce any requirement, contractual or otherwise, that two armed inspectors be assigned to work outbound." Opposition at 6. Rather, the Union argues, the Arbitrator found that, "as a matter of law and under the MOU, the Agency was obligated to bargain with [the Union] before changing an established [past] practice of assigning two armed Inspectors to these activities." Id. To the extent that the Agency's exception can be interpreted as a challenge to the Arbitrator's status quo ante remedy, the Union maintains that the Agency did not raise that issue before the Arbitrator and thus is barred from raising it before the Authority on exception.

      As to the sufficiency of the Agency's August 2, 2001, letter as notice to terminate agreement to permissive subjects, the Union notes that the letter specifically addressed provisions concerning § 7106(b)(1) provisions of the NLA, and certain "unspecified" § 7106(b)(1) provisions in the NIAP and LIAPs and in other unspecified agreements. According to the Union, there was no mention in the letter of the 2001 MOU and so it "could not have operated to relieve [the Agency] of its commitment to bargain [at the local level over] the impact of the National Guard directive on local agreements or SOPs." Id. at 10. In this regard, the Union notes that there were "no explicit [§ 7106](b)(1) provisions in that MOU." Id. at 11. [ v60 p499 ]

      With respect to the Agency's argument that it was not obligated to bargain at the local level with the Union over the use of MNG personnel, the Union argues that the Arbitrator did not err by relying on the arbitrator's award in Customs Service and, in any event, asserts that "the Agency overlooks the fact that the Arbitrator independently found that the [R]NIAP was not controlling and that it did not extinguish the Union's statutory right to bargain." Id. at 13. Further, the Union maintains that the "covered by" doctrine applies to negotiated agreements and that "[t]he unilaterally imposed [R]NIAP was not a negotiated agreement[.]" Id. Finally, in this connection, the Union asserts that it "did not waive its right to bargain in this case because the Agency did not specifically notify [the Union] that it wanted to change or terminate the National Guard MOU, much less any related local SOPs or practices." Id.

      The Union contends that the Arbitrator properly rejected the Agency's argument that it had no bargaining obligation at the local level. The Union also contends, as to the Agency's past practice exception, that the Arbitrator properly applied Authority precedent and properly evaluated the evidence under that standard. Finally, the Union contends that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreements.

V.      Analysis and Conclusions

      The Agency excepts to the Arbitrator's award under § 7122(a)(1) of the Statute on the ground, among others, that the award is contrary to law. As the Agency's exceptions concern 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 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 whether the Agency had an obligation to bargain, at the local level, with respect to a change in a local condition of employment: the impact of the Agency's decision to change the number of inspectors assigned to outbound operations that resulted from the use of MNG personnel at the Port of Roosville. The grievance was precipitated by the Agency's decision to use a single, armed inspector when it also assigned MNG personnel to those operations. The Arbitrator framed the issue in terms of the Agency's obligation to bargain over the effect of that decision. See Award at 27. As her award, the Arbitrator directed the Agency to bargain at the local level over the impact of the Agency's decision as to the number of inspectors assigned to outbound operations.

      Consistent with our decisions in Customs Service, NTEU, Chapter 137, 60 FLRA No. 96 (Dec. 17, 2004), and United States Dep't of Homeland Security, United States Customs and Border Protection, Port of Seattle, Seattle, Wash., 60 FLRA No. 97 (Dec. 17, 2004) and for the following reasons, we find that the Agency had no obligation to bargain at the local level over the impact of the Agency's decision as to the number of inspectors assigned to outbound operations. Thus, the Arbitrator's award to the contrary is contrary to law and must be set aside.

      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 improperly 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. [n4] 

      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 [ v60 p500 ] 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 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 United States Border Patrol Livermore Sector, Dublin, Cal., 58 FLRA 231, 233 n.5 (2002) (Border Patrol) (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 in section 3 of the RNIAP by terminating its permissively negotiated obligation under Article 37 of the expired NLA and the NIAP to bargain at the local level over inspectional assignment matters. [n5] 

      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 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.

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

      For the reasons stated in NTEU, Chapter 137, and Customs Service, Seattle, Wash., we also find in this case that the Agency did not have any obligation to bargain at the local level over the impact of its determination regarding the number of inspectors assigned to outbound operations, whether under the MOU or Article 37 of the parties' NLA. As relevant here, section 3 of the RNIAP, by its terms, effectively terminated any previously existing agreement that required the Agency to bargain at the local level over the impact and implementation of decisions concerning the assignment of inspectors to work projects, in particular, the number of such inspectors. [n6]  Consequently, the MOU, as interpreted by the Arbitrator to require the Agency to bargain at the local level over the impact of its decision to assign a single armed inspector to outbound operations when MNG personnel are also assigned, as a matter of safety, is unenforceable as a result of the operation of section 3 of the RNIAP. [n7]  As such, the Arbitrator's award finding a violation of the MOU and the Statute is contrary to law. [n8] 

VI.     Decision

      The award is set aside. [ v60 p501 ]


APPENDIX

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

Article 37
. . . .
C. The Employer recognizes that the Union, in accordance with law and the terms of this Agreement, has the right to:
(1) bargain over the full range of statutory issues associated with the exercise of any management rights;
(2) initiate bargaining on its own over subjects not contained in the Agreement or otherwise waived.
. . . .
Moreover, in the interests of partnership the Employer agrees to bargain with the Union over the numbers, types and grades of employees or positions assigned to any Customs Service organizational subdivision, work project, or tour of duty, and the technology, methods and means of performing work within the Service.
. . . .
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 change.

Award at 7 and 17 (quoting portions of Article 37).

2. Section 3 of the RNIAP provides as follows:

3.     PRECEDENCE AND FUNCTION
The policies and procedures contained in this Handbook 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 Handbook.
The policies and procedures contained in this Handbook reflect the parties' full and complete agreement on the matters contained and addressed herein. No further obligation to consult, confer, or negotiate, either upon the 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 in this Handbook.

RNIAP at 1. [ v60 p502 ]


Dissenting opinion of Chairman Cabaniss:

      I disagree with my colleagues as to the nature of this case. In my view, the Arbitrator very carefully crafted her award to avoid any matter related to the assignment of customs inspectors to outbound operations at the Port of Roosville. She made very clear that, as she understood the facts of the case, the matter at issue concerned the effect of the use of MNG personnel on the operating procedures at that facility, in particular, the impact of the use of such non-Agency personnel on the safety of unit employees (as opposed to the assignment of unit employees).

      Based on her review of all the available evidence, the Arbitrator concluded that, with very minor exceptions, Montana Air National Guard (MANG) personnel worked the outbound operations with two armed inspectors. The Arbitrator found, therefore, that not only did the SOP specify that two armed inspectors should work outbound operations, but, as a matter of past practice, even with MANG personnel assigned to those operations, two armed inspectors were also assigned. The Arbitrator found that the "safety rationale" for this practice was stated not only in the Agency's standard operating procedure (SOP) for the Port of Roosville, but in the Agency's Land Border Inspectional Safety Policy. Award at 16. See also id. at 26. The Arbitrator also concluded that, based upon her review of the evidence, after Montana National Guard (MNG) personnel began to assist with operations at the Port of Roosville, Customs Service management would routinely assign one armed inspector to work outbound operations with MNG personnel. Consequently, the Arbitrator found that the use of MNG personnel to replace one armed customs inspector in outbound operations under the 2001 directive: (1) affected the safety practices and the implementation of the SOP at the Roosville port; and (2) constituted a change in the working conditions of customs inspectors at that port that resulted in diminished safety for those inspectors. The majority ignores these arbitral findings.

      Moreover, the Arbitrator's award enforces the parties' MOU, in which the Agency agreed to bargain over the effect of the use of National Guard personnel, whether Air or Army National Guard, for performing Agency functions on local operating procedures. The Arbitrator specifically found that the use of MNG personnel in this case had a direct effect on the conduct of outbounds operations and on the safety-related purposes of the operating procedure governing those operations at the facility. In addition, she also specifically found that the Agency's notice terminating the NIAP, the LIAPs, and other agreements did not constitute "specific notice of intern to terminate the [MOU]." Award at 25. Finally, she stated that the use of unarmed non-Agency personnel in the conduct of such operations is a subject that is not covered by the revised NIAP. Specifically, noting the "safety rationale" of the SOP and the past practice, the Arbitrator found that the "central issue" in the grievance "is a change in practice with respect to working with unarmed outsiders," which "is not a subject taken up in the NIAP." Id. at 26. Consequently, she concluded that the revised NIAP did not involve a waiver of the Union's right to bargain under the MOU. The majority ignores these arbitral findings as well.

      These findings materially affect the disposition of this case, and by not considering these findings it is easy to see how one can conclude, albeit erroneously, that section 3 governs the result in this case. Section 3, as the majority correctly notes, establishes the precedence of the revised NIAP over agreements: (1) concerning matters related to the assignment of Agency personnel specified therein; and (2) requiring local bargaining over the substance and impact and implementation of those assignment provisions. What the majority overlooks is that the Arbitrator specifically found that the MOU being enforced in her award concerned the effect of the use of non-Agency personnel and, thus, did not relate to the assignment of Agency personnel as specified in the revised NIAP. In short, the Arbitrator concluded that the revised NIAP had nothing to do with this case and that it did not amount to a waiver of the Union's right to bargain under the MOU and the Statute.

      Further, the Arbitrator consistently emphasized that the Agency failed to bargain over the safety-related effects of its use of MNG personnel at the Port of Roosville. Her award is confined to requiring the Agency to bargain over those safety-related effects. Nowhere in her award does she state or suggest that those effects extend to the staffing matters about which the Agency expresses such great concern. To the contrary, she expressly stated that bargaining over staffing of the outbound operations was not at issue in the case:

"Although there is an assignment aspect to this dispute, what is at issue here is not a Union proposal to require that 2 armed Customs Inspectors always be assigned on outbounds. That is simply what the Agency guesses the Union's proposal would be if it had acceded to the request to bargain."

Award at 26. In short, the Arbitrator recognized that there is a limitation established by the revised NIAP, but she expressly found that the facts of this case did not require her to violate that limit.

      I believe the Arbitrator would have found that a bargaining obligation existed on the part of the Agency even if two customs inspectors were assigned to outbound operations, but, as a result of the presence of MNG personnel, only one of them was armed. It is not the number of individuals assigned to those operations that is the issue, but the number of individuals that are armed. According to the Arbitrator, this case is about employee safety, not the assignment of Agency personnel.

      In sum, this case is not the case my colleagues think it is and, as a result, their conclusions are inapposite. In my view, given the Arbitrator's findings of fact, her conclusions of law are correct and her award is not deficient. In this regard, because the remainder of the Agency's exceptions are based on the same misunderstanding of the nature of this case that is shared by my colleagues, I would deny those exceptions.



Footnote # 1 for 60 FLRA No. 98 - Authority's Decision

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


Footnote # 2 for 60 FLRA No. 98 - Authority's Decision

   Subsequent to the award in this case, the Authority issued a decision finding the award deficient as contrary to law and setting aside the award. See United States Dep't of the Treasury, Customs Service, Washington, 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).


Footnote # 3 for 60 FLRA No. 98 - Authority's Decision

   The Agency refers to section 3 of the RNIAP, which is entitled "Precedence and Function" (section 3). See Attachment to Agency's Exceptions. Section 3 is set forth in the Appendix to this decision.


Footnote # 4 for 60 FLRA No. 98 - Authority's Decision

   In Customs Service, the Authority did not have occasion to specifically address the meaning and operation of section 3 of the RNIAP, particularly as it relates to locally negotiated agreements, such as the LIAPs, and the Agency's obligation to bargain at the local level.


Footnote # 5 for 60 FLRA No. 98 - 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 other agreements, policies, or other documents or practices executed or applied by the parties previously, at either the national or local levels, concerning matters covered within this [RNIAP].
. . . . No further obligation to consult, confer, or negotiate, either upon the 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.


Footnote # 6 for 60 FLRA No. 98 - Authority's Decision

   In this regard, Article 5, Section A (General Scheduling and Staffing Principles), Subsection 2 (Staffing) of the RNIAP, provides in Subsection 2.a. (Staffing Levels), as follows:

The number of personnel assigned to any inspectional activity, regardless of whether it is performed on a regular or overtime basis, on a regular workday or holiday, shall be determined by agency managers to meet the operational needs and budgetary limitations.

Footnote # 7 for 60 FLRA No. 98 - Authority's Decision

   Member Pope notes that the dissent's statement that the Arbitrator found the dispute in this case "did not relate to the assignment of Agency personnel" is inconsistent with the record. Dissent at 2. The Arbitrator stated, not once but twice, that the grievance had "an assignment aspect." Award at 26. Moreover, the Arbitrator framed the issue as whether the Agency improperly refused to bargain over "the change from assigning 2 armed inspectors . . . to using only one[.]" Award at 27. That the Union's rationale for the disputed assignment practice may have been, in part, safety related does not change the fact that the practice itself concerns assignment. See United States Dep't. of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Lompoc, Cal., 58 FLRA 301, 303 (2003) (contract provision intended to protect safety of prison guards held to affect right to assign work). In addition, the dissent's theory -- that a rationale for proposing an assignment practice overrides the fact that the practice relates to assignment -- is inconsistent with the Authority's unanimous holdings that the Agency was privileged to terminate local assignment practices in Customs Service and NTEU, Chapter 137. In this regard, those local assignment practices concern