[ v61 p72 ]
61 FLRA No. 13
UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CUSTOMS AND BORDER PROTECTION AGENCY
NEW YORK, NEW YORK
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)
0-AR-3935
_____
DECISION
June 30, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
This case is before the Authority on exceptions to an award of Arbitrator Roger Kaplan filed by the Customs and Border Protection Agency (CBP) under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition.
The grievance concerned the failure of CBP to comply with a provision of an agreement requiring CBP to provide ammunition to employees authorized to carry firearms for use in firearms qualification practice. The Arbitrator sustained the grievance and ordered CBP to provide the required ammunition.
For the following reasons, we deny CPB's exceptions.
The employees covered by the grievance in this case are immigration inspectors at John F. Kennedy International Airport, who are authorized to wear, and use, firearms in the performance of their duties. Prior to March 1, 2003, the inspectors were employed by the Immigration and Naturalization Service (INS). On that date, INS was abolished and its function transferred to CBP, an organizational sub-element of the Department of Homeland Security (DHS).
INS and the Union were parties to an agreement (INS agreement) which provided, in Article 24, Section C (Section C), that employees who use firearms in the performance of their duties, and are required to qualify in such usage, will be provided ammunition consistent with INS policy. [n2] Pursuant to Section C, INS had provided 150 rounds of ammunition to employees so that they could practice for qualification. CBP continued the policy of issuing practice ammunition for several months after the transfer of INS and then stopped, claiming that inventory was low. The official in charge of procuring ammunition indicated that he was unsure of the type of weapon to be used by CBP and did not want to have a surplus of unusable ammunition if a change was made.
The Union filed a grievance concerning the failure to provide practice ammunition to employees. When the parties were unable to resolve the grievance it was submitted to arbitration.
According to the Arbitrator, the parties stipulated to the issues in the case as follows:
1. Is the grievance arbitrable because:
(a) The grievance was raised as a local grievance instead of a national grievance?
(b) This is a budgetary matter under 5 U.S.C. § 7106(a)?
(c) This is a security matter under 5 U.S.C. § 7106(a)?
(d) [CBP] is not obligated to adhere to the INS Firearms Policy dated February 19, 2003?
2. Did [CBP] violate Article 24[, Section C] of the Collective Bargaining Agreement by not providing sufficient practice ammunition to Immigration Inspectors in the New York District?
3. If so, what shall the remedy be?
Award at 2. [ v61 p73 ]
According to the Arbitrator, immediately after INS was transferred to DHS the Undersecretary of DHS instructed CBP managers to honor collective bargaining agreements that were in effect in the agencies transferred to DHS. At the time the INS agreement became effective, existing INS practice, set forth in INS Firearms Policy, February 19, 2003 (INS Policy), was to provide inspectors 150 rounds of ammunition each quarter for practice on the inspector's own time at a non-Government range. [n3]
The Arbitrator noted that CBP prepared Interim Use Of Force and Firearms Guidelines (Guidelines) which were intended to be implemented in September 2004. [n4] The Guidelines adopted the policies set forth in the United States Customs Service Firearms and Use of Force Handbook (2003 Handbook) for any matters not specifically covered by the Guideline. [n5] The Arbitrator found that the Guidelines did not cover the issuance of ammunition for practice and, therefore, that the terms of the 2003 Handbook were applicable to the grievance. The Arbitrator stated that the 2003 Handbook specifically provides that "sufficient ammunition will be issued for official practice." Award at 6, quoting the 2003 Handbook. The Arbitrator also noted that the 2003 Handbook incorporates Customs Directive No. 4510-017A (December 17, 2001) (Directive), which describes the conditions governing official practice. [n6] The Arbitrator stated that the Directive did not provide for ammunition for non-official practice.
The Arbitrator rejected CBP's claim that the grievance was not arbitrable because it involved national issues that could only be addressed at the national level. [n7] The Arbitrator also rejected CBP's argument that the grievance was not arbitrable because it affected management's rights to determine its budget and internal security policies under § 7106(a)(1) of the Statute. CBP cited negotiability cases in support of its claim and the Arbitrator found that the grievance did not involve a negotiability issue. Rather, according to the Arbitrator, INS already negotiated Section C, "apparently under the permissive provision of 5 U.S.C. [§] 7106(b)." Award at 8.
More particularly, the Arbitrator found that CBP did not meet its burden of demonstrating that implementation of Section C affected its budget right under the applicable Authority test. The Arbitrator also distinguished case precedent cited by CBP with respect to internal security matters, finding that "the Agency's ability to determine its internal security is not implicated by the policy of providing 150 rounds of practice ammunition." Id. at 9.
Finally, the Arbitrator rejected CBP's claim that it was not obligated to adhere to the INS Policy. Rather, the Arbitrator found that there was "clear and convincing evidence" that CBP intended to be bound by that policy. Id. at 10. Specifically, the Arbitrator found that CBP agreed to honor the INS agreement, which "referenced and incorporated" the INS policy. Id. Moreover, the Arbitrator found that CBP "followed the INS policy, at least with respect to Immigration Inspectors receiving 150 rounds of ammunition, even after . . . Immigration Inspectors came under [CBP's] jurisdiction." Id. Consequently, the Arbitrator concluded that CBP "adopted and implemented the INS policy." Id. at 11.
The Arbitrator found that the INS agreement "clearly provided for the quarterly issuance of 150 rounds of practice ammunition to Immigration Inspectors while the INS Policy was the effective policy referenced in the [agreement], as long as sufficient inventories of ammunition existed." Id. The Arbitrator rejected CBP's argument that the Guidelines replaced the INS Policy. In this regard, the Arbitrator noted that the Guidelines required distribution to employees, employee acknowledgment of receipt, and signed acknowledgment forms, but found that the evidence "does not establish that any of that has been done." Id. at 12. Consequently, the Arbitrator concluded that the evidence "does not establish that the Guidelines were implemented." Id.
As to CBP's claim that it had no obligation to provide practice ammunition because the supply was low, the Arbitrator found that the official who ordered the ammunition had no authority to ignore the requirements of the INS agreement. Rather, according to the Arbitrator, that decision should have been made at a higher level within CBP. Consequently, the Arbitrator concluded that CBP violated Section C by failing to provide the former Immigration Inspectors with 150 rounds of practice ammunition. As a remedy, he ordered the local CBP office to order more ammunition through proper channels so as "to allow the local inventory level of [ v61 p74 ] ammunition to rise to a sufficient level to permit the issuance of 150 rounds of practice ammunition." Id. at 14.
CBP argues that the award is deficient because: the Arbitrator (1) "did not properly consider [CBP's] non-arbitrability arguments regarding management's rights[;]" and (2) "disregarded [CBP's] non-arbitrability argument pertaining to the discontinuance of" the INS Policy. Exceptions at 4. As to its management's rights arbitrability claim, CBP argues that the award fails to satisfy the two-prong test set forth in Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service) because: (1) there is no evidence that employees are adversely affected by the exercise of a management right; and (2) the award abrogates its management's rights.
More specifically, as to the remedy, CBP argues that the Arbitrator erred in finding that the provision of ammunition to employees did not concern its right to determine its internal security policies and practices. CBP cites AFGE, Local 1917, 55 FLRA 228 (1999), in which the Authority held that the assignment of weapons to employees concerned management's determination of its internal security practices. CBP argues that, without ammunition, a handgun is not dangerous and, in addition, ammunition can be dangerous even without being loaded in a handgun. CBP asserts, in this regard, that the need to control the issuance of ammunition is at least as critical as its need to control the issuance of firearms.
Further, with respect to the remedy, CBP contends that the Arbitrator erred in his assessment of the impact of the requirement to provide practice ammunition on CBP's budget. Calculating the amount of practice ammunition needed and assessing its cost as a portion of total ammunition issued, CBP concludes that $90,000 may reasonably be assumed to be the minimum amount allocated for practice ammunition provided unit employees. CBP contends that the cost of practice ammunition has "a substantial and material impact on [CBP's] budget." Exceptions at 8.
Finally, CBP contends that the Arbitrator's remedy is contrary to law because the Arbitrator erred in concluding that it was obligated to comply with the INS Policy. Specifically, CBP maintains that the Arbitrator mistakenly relied on a memorandum issued by the Undersecretary of DHS which instructed managers to honor negotiated agreements between unions and the agencies that were transferred to CBP. According to CBP, the memorandum was not part of the record in this case and, thus, "the Arbitrator's characterization of its content and function are little more than speculation and should be disregarded." Id. at 10. In any event, CBP asserts, although the memorandum was directed to CBP management officials, there is no indication that it confers any rights on unions or any other third party, nor is there any indication that it carries the force of law, regulation or negotiated agreement." Id. at 9.
CBP acknowledges that it has continued to honor agreements such as the INS agreement, but contends that it is under no obligation to honor subsidiary policies referenced in those agreements. In this regard, CBP notes that the INS agreement provides that the "outstanding policy of the Service" controls. Id. at 10, quoting Section C of the INS agreement. CBP states that evidence in the record establishes that the Guidelines are the applicable policy. CBP maintains therefore that the award is deficient because the Arbitrator misinterpreted the INS agreement.
At the outset, the Union points out that CBP cites "outdated case law" concerning the Authority's test for reviewing management's rights exceptions to arbitration awards. Opposition at 2. According to the Union, the Authority applies the excessive interference test. The Union maintains that under this test there is no basis for concluding that the award violates management's rights. As to CBP's exception on the grounds that the INS Policy does not apply, the Union contends that the Arbitrator was asked to interpret Section C, which CBP concedes is still in effect. The Union asserts that CBP failed to show that the phrase "outstanding policy" in Section C did not refer to the INS Policy. Id. at 3.
In particular, the Union notes that under the Authority's test regarding management's rights, CBP must first show that the award "implicates" a management right and the Arbitrator specifically found that enforcement of Section C would not affect management's rights to determine its budget or its internal security policies or practices. Id. at 7. Further, the Union argues that, even assuming an effect on those rights, the award would not excessively interfere with the rights because, as the Arbitrator pointed out, CBP has the power to change the applicable practice ammunition policy. Thus, according to the Union, the award's interference with management's rights is "nonexistent." Id. at 10. [ v61 p75 ]
With respect to CBP's claim that the Arbitrator erred in finding that the INS Policy continues in effect, the Union points out that CBP admits that it continues to honor collective bargaining agreements with predecessor agencies, including the INS agreement. According to the Union, the Arbitrator simply found that CBP failed to prove that the INS Policy had been superseded. The Union asserts that "[s]uch conclusions[] regarding questions of fact" are precisely what the parties expect "when they agree to arbitrate their disputes." Id. at 12.
CBP's management's rights arbitrability exceptions are misplaced because they ignore applicable Authority precedent. The Authority has consistently held that the management's rights provisions of § 7106 of the Statute do not provide a basis for finding grievances non-arbitrable. See, e.g., United States Dep't of the Navy, Pac. Missile Test Ctr., Point Mugu, Cal., 43 FLRA 157, 159 (1991); United States Information Agency, 32 FLRA 739, 748-49 (1988); Newark Air Force Station, 30 FLRA 616, 631-35 (1987) (Newark); Marine Corps Logistics Support Base, Pac., Barstow, Cal., 3 FLRA 397, 398-99 (1980) (Barstow). As the Authority stated in Newark:
The proper phase of the arbitration proceeding in which to determine the impact or application of [§] 7106 is not at the outset so as to preclude by law an arbitrator from having jurisdiction over the matter. Rather, the determination as to the impact or application of [§] 7106 is to be made in connection with the arbitrator's consideration of the substantive issue presented by the grievance and any possible remedy.
Newark, 30 FLRA at 634. See also Barstow, 3 FLRA at 399 (nothing in § 7106 precludes an arbitrator from reaching the merits of a grievance alleging violations of provisions of the collective bargaining agreement).
Consequently, insofar as CBP's exceptions contend that the grievance in this case is not arbitrable based on management's rights under § 7106 of the Statute, the exceptions do not provide a basis for finding the award deficient.
Accordingly, the exceptions are denied.
The Authority reviews questions of law raised by exceptions to an arbitrator's award 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP). [n8] Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either 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. BEP, 53 FLRA at 152-53. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provisions at issue. Id. at 154.
The test used by the Authority to determine whether an award affects management's right to determine its budget under § 7106(a)(1) of the Statute is set forth in AFGE, AFL-CIO, 2 FLRA 604, 607-08 (1980), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). Under this test, if an award prescribes either the particular programs to be included in the agency's budget, or the amount to be allocated in the budget for a program, the [ v61 p76 ] award would affect the right. Alternatively, if the agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits, the Authority will find that the award affects management's right to determine its budget. See, e.g., United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 557-58 (1999).
In this case, CBP has provided no basis for finding that the Arbitrator's award affects management's right to determine its budget under § 7106(a)(1) of the Statute. First, the award does not prescribe a program, operation, or dollar amount to be included in CBP's budget. Consequently, the award does not affect management's budget right under the first part of the Authority's test. Second, CBP has failed to make a substantial demonstration that the award would impose an increase in costs that is significant and unavoidable and is not offset by compensating benefits. In this regard, while CBP has provided an estimate of the cost of providing ammunition for employee firearms qualification practice, CBP has provided no other budgetary information that would allow the Authority to assess the significance of that cost in relation to the relevant budget as a whole. See, e.g., Nat'l Weather Serv. Employees Org., 44 FLRA 18, 30 (1992) (Authority considers proposal relative to budget of the organizational level to which the proposal applies); United States Dep't of Def., Office of Dependents Schools, 40 FLRA 425, 440-41 (1991) (agency's demonstration fails second part of budget test because agency fails "to provide any information placing its budget projections in perspective within the [a]gency's budget as a whole."). See also United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Region W., Def. Distrib. Depot Red River, Texarkana, Tex., 52 FLRA 132, 136 (1996).
In sum, CBP has failed to demonstrate that the award affects management's right to determine its budget under either part of the Authority's budget test. Consequently, CBP has failed to establish that the award is deficient on this ground.
Accordingly, CPB's budget exception is denied.
Agency management's right to determine its internal security policies and practices under § 7106(a)(1) of the Statute includes the right to determine the policies and practices that are a part of an agency's plan to secure and safeguard its personnel, property, and operations. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Oakdale, La., 59 FLRA 277, 279 (2003). Where an agency establishes a link or reasonable connection between the agency's goal of safeguarding personnel or property, or preventing disruption of agency operations, and the disputed practice, the Authority will find that the practice constitutes the agency's exercise of its right to determine its internal security practices. Id.
The Arbitrator in this case determined that CBP's practice of providing 150 rounds of ammunition to employees preparing for firearms qualification did not implicate management's right to determine its internal security practices. That is, the Arbitrator found that there is no connection between CBP's decision to provide a particular amount of ammunition to employees to be used in practicing for firearms qualification and CBP's internal security concerns.
CBP has failed to demonstrate that the Arbitrator erred, as a matter of law, in making this finding. CBP's arguments support the conclusion that ammunition for its firearms is essential to the use of those firearms in securing its personnel, property, and operations. CBP fails to establish, however, that the amount of ammunition available to employees to practice for firearms qualification has any such internal security ramifications. In the absence of the requisite link to internal security concerns, the award enforcing Section C does not affect management's right to determine its internal security practices under § 7106(a)(1) of the Statute. See United States Dep't of Health & Human Servs., Region V, 45 FLRA 737, 752-53 (1992). Because the award does not affect management's right to determine its internal security practices, it is unnecessary to address the BEP framework. See United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Ctr., Def. Distrib. Depot Red River, Texarkana, Tex., 56 FLRA 690, 694 (2000).
Accordingly, CBP's internal security exception is denied. [n9]
CBP concedes that it has continued to honor the INS agreement, which includes Section C. CBP essentially argues that the Arbitrator erred in interpreting Section C by finding that the INS Policy constituted the "outstanding policy of the Service" as specified in that section. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence" standard of review. See AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational [ v61 p77 ] way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; and (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
CBP contends that the Arbitrator erred by failing to find that the Guidelines constituted the "outstanding policy of the Service" within the meaning of Section C. However, the Arbitrator found that CBP had not put the Guidelines into effect and CBP does not challenge that finding. Since the Guidelines were not in effect, and CBP concededly had continued to honor Section C, the Arbitrator concluded that, by the "outstanding policy of the Service," Section C meant the INS Policy extant at the time Section C was agreed to by INS and the Union. CBP has failed to demonstrate that the Arbitrator's conclusion is irrational, manifests an infidelity to his obligation as an arbitrator, is not a plausible interpretation of Section C, or manifestly disregards Section C. Consequently, CBP has failed to demonstrate that the award is deficient as failing to draw its essence from Section C of the INS agreement. [n10]
In addition, to the extent that CBP's exception in this regard challenges the Arbitrator's finding that the Guidelines were not in effect on the ground of nonfact, we note that CBP specifically states that it presented evidence to the Arbitrator that the "current 'outstanding policy of the Service'" was the Guidelines. Exceptions at 10. As this matter was clearly disputed before the Arbitrator, it cannot be challenged before the Authority on the ground of nonfact. See, e.g., United States Dep't of Homeland Security, Customs & Border Protection Agency, New York, N.Y., 60 FLRA 813, 816 (2005). Consequently, we find that CBP has failed to demonstrate that the award is deficient on this ground.
Accordingly, the exception is denied.
The exceptions are denied.
1. The INS Policy provides, in relevant part, as follows:
Section 22 Issuance and Expenditure of Service Ammunition
. . . .
E.(1) In addition to handgun ammunition necessary for official quarterly qualifications, Authorizing Officials shall issue a total of 150 rounds of handgun practice ammunition per quarter to each Service officer authorized to carry a handgun.
(2) If ammunition inventories are insufficient in a given quarter, the practice ammunition for that quarter shall be issued as soon as inventories permit.
. . . .
Section 35 Firearms and Ammunition
Acquisition
A. The National Firearms Unit is responsible for acquiring all firearms and ammunition for the INS. . . . [N]o Service program or individual officer or employee, other than the National Firearms Unit, is authorized to solicit, accept or otherwise acquire firearms or ammunition for any Service-related purpose.
Award at 3.
2. The 2003 Handbook provides, in relevant part, as follows:
Chapter 4 Ammunition
I.A. All Service - issued ammunition will be purchased through normal procurement channels.
. . . .
F. Sufficient ammunition will be issued for official practice and qualification.
Handbook at 21.
3. The Guidelines provide, in relevant part, as follows:
Part 1 Interim Use of Force and Firearms Guidelines
. . . . [ v61 p78 ]
A.2. These guidelines address issues that require immediate clarification or deviation from past policy.
3. For interim Use of Force and Firearms Policy issues not specifically addressed in these guidelines, Office of Field Operations personnel shall operate under the provisions of the Legacy Customs Firearms Use of Force HandbookB-CIS HB 4500-01A dated March 2003. Office of Border Patrol personnel shall operate under the provisions of the INS Firearms Policy dated February 2003.
B.1. Responsible Officials shall ensure that supervisors disseminate, review and discuss the contents of these interim Use of Force and Firearms Guidelines with subordinates.
2. Responsible Officials shall ensure that all CBP armed officers the supervise acknowledge receipt of this interim Use of Force and Firearms Guidance by signature no later then thirty days after issuance. Signature pages shall be kept on local file.
. . . .
Part 3 Carriage of Firearms
. . . .
B. Until a standard handgun for OFO is designated, Legacy Immigration Inspectors shall carry their currently assigned handgun.
Guidelines at 3, 4.
4. The Directive provides, in relevant part, as follows:
Attachment 2 Firearms Qualification
. . . .
2.2.5 Official practice will be conducted by a Customs Firearms Instructor and will immediately precede required qualification.
2.2.6 Managers at all levels must afford time for official practice for officers authorized to carry firearms.
Attachment 2 at 2.
I agree with the decision to deny the exceptions. However, I would deny the Agency's internal security exception for a different reason than the majority. Accordingly, I write separately.
With regard to internal security, the Arbitrator found that the relevant contract provision was negotiated by the parties under § 7106(b)(1). See Award at 8 (Arbitrator found that the parties "negotiated this matter, apparently under the permissive provision of [§] 7106(b)."). No exceptions were filed to this finding, which is consistent with Authority precedent. See AFGE, Local 1917, 55 FLRA 228, 236 (1999) (proposal involving employee use of firearms concerned means of performing work under § 7106(b)(1)). As such, whether or not the provision affects the Agency's right to determine internal security -- a determination I find unnecessary to make -- it is enforceable. See United States Dep't of Transp., FAA, 60 FLRA 159, 164 (2004) (§ 7106(b)(1) provision enforceable without regard to effect on § 7106(a) right). Accordingly, as the award also reconstructs the Agency's actions if it had not violated the provision, the award satisfies both prongs of the BEP analysis.
The majority finds it unnecessary to address § 7106(b)(1) on the ground that the Arbitrator properly found that the provision did not conflict with management's rights under § 7106(a)(1). See Majority Opinion at 12 n.9. In so doing, the majority ignores that a key reason the Arbitrator rejected the Agency's claims regarding its § 7106(a) rights was his finding that the provision "apparently" was negotiated under § 7106(b)(1). Award at 8. The Agency lost below and is responsible for raising and supporting exceptions to the award. If the connection between the provision and § 7106(b)(1) was not "apparent" to the Agency, then it was free to raise the matter in exceptions. It did not do so and, as a result, cannot demonstrate that the award is contrary to its internal security right. Consistent with the record and the Agency's burdens, I would resolve the exception on this basis.
Member Pope's concurring opinion is set forth at the end of this decision.
Article 24, Section C. provided as follows:
Article 24 Firearms and other Weapons
. . . .
Employees who are required and/or authorized to carry firearms must qualify quarterly, shall be provided ammunition, official time, and supervision/instruction consistent with outstanding policy of the Service.
Agreement at 44-45.
The relevant text of the INS Policy is set forth in the Appendix to this decision.
Relevant provisions of the Guidelines are set forth in the Appendix to this decision.
Relevant provisions of the 2003 Handbook are set forth in the Appendix to this decision.
Relevant provisions of the Directive are set forth in the Appendix to this decision.
The CBP did not except to this finding by the Arbitrator and it will not be addressed further herein.
CBP mistakenly cites Customs Service as the applicable test regarding management rights and mistakenly relies on the abrogation standard set forth therein for assessing claims that an award enforces a contract provision negotiated as an appropriate arrangement under § 7106(b)(3). The Authority rejected the abrogation standard for this purpose in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002) (separate concurring opinions by Chairman Cabaniss, Member Armendariz, and Member Pope).
Because the Arbitrator properly found that Section C does not affect management's rights under § 7106(a)(1), we do not need to address whether Section C is enforceable under the BEP test.
CBP's exception in this regard is couched in terms of a claim that the award is contrary to law. Since CBP provides no explanation as to how the alleged defects cited in this exception render the award contrary to law, we reject the exception as a bare assertion. See, e.g., AFGE, Local 1749, 58 FLRA 459, 460 n.3 (2003).
We find it unnecessary to address CBP's exception to the Arbitrator's reliance on the Undersecretary's memorandum to find that the INS agreement remains in effect, based on CBP's concession that it continues to honor the INS agreement.