United States, Department of Homeland Security, United States Customs and Border Protection (Agency) and American Federation of Government Employees, Local 1917 (Union)

[ v61 p113 ]

61 FLRA No. 22

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

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

0-AR-3875

_____

DECISION

July 15, 2005

_____

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 Louis M. Zigman 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.

      For the reasons set forth below, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The grievance involves whether employees should receive all-day quarterly firearms training or, as is currently done, 5-15 minutes training and 1-2 hours qualifying time on the firing range, under the Agency's 1996 and 2003 negotiated INS Firearms policy. [n2]  Specifically, the Arbitrator noted that, "[t]his dispute concerns a grievance by the [U]nion in which the [U]nion asserts that management at the JFK Port of Entry violated and continues to violate the INS Firearms Policy as set forth in August 1996 and reiterated in the revised INS Firearms Policy dated February 19, 2003[,]" by its refusal to offer all-day, quarterly training. Award at 2.

      In resolving the grievance, the Arbitrator determined that under the terms of the 2003 INS Firearms policy, after the Agency provides employees with an opportunity to qualify on the firing range, the "`remainder of the work day' will be used for `additional firearms training.'" [n3]  Id. at 19. The Arbitrator rejected the Agency's contention that it did not have to provide training for the remainder of the above work day by noting:

While one might interpret the language in Article 24(C) of the collective bargaining agreement as being limited solely to "quarterly qualifying" solely with the firearm, the language stating that employees "shall be provided with . . . instruction consistent with outstanding policy of the Service," can be interpreted consistent with the union's contention that this language recognizes and incorporates the firearms training referred to in Article 23(B) of the negotiated firearms policy.

Id.

      Additionally, the Arbitrator rejected the Agency's contentions that the grievance was not arbitrable because, among other issues, the grievance affected management's rights. [n4]  In this respect, the Arbitrator found that "[s]imply put, if the evidence demonstrates an agreement [Article 23(B)] was made then the Agency's contentions that the employees' had no rights to such training is unpersuasive." Id. at 13. As such, the [ v61 p114 ] Arbitrator upheld the Union's grievance and stated that, "[t]he Agency shall adhere to the INS Firearms Policy and schedule quarterly qualifications as an eight-hour day to include classroom instruction after/or before firearms qualification." Id. at 21.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency argues that the Arbitrator "did not base his ruling on credible evidence but rather on what `the union asserted' at the hearing `that Article 23(B) was the product of negotiations between management and the union.'" Exceptions at 5. The Agency contends that the only evidence offered was "unreliable hearsay." Id. Accordingly, it states that, "the Arbitrator's ruling on this point is based entirely on unsubstantiated hearsay evidence, which the Arbitrator himself acknowledges is nothing more than an assertion by one of the parties." Id.

      Moreover, the Agency argues that the award violates its rights to assign work and determine its budget. With respect to its right to assign work, it contends that the assignment of training affects its right to assign work. Exceptions at 4-8 (citing NFFE, Local 1482, 40 FLRA 902 (1991); AFGE, Local 3407, 39 FLRA 557 (1991); United States Dep't of Justice, Immigration & Naturalization Serv., 37 FLRA 639 (1990); United States Army Transp. Ctr., Ft. Eustis, Va., 33 FLRA 391 (1988)). Additionally, it argues that unlike some of the cases it cites, the training encompasses "how [employees] perform the official duties of their positions." Exceptions at 6.

      Furthermore, the Agency argues that the award would make it necessary to increase its training budget to accommodate the Arbitrator's award. Id. at 8-11 (citing Dep't of the Air Force, Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989); NTEU, 47 FLRA 980 (1993); AFGE, AFL-CIO, 2 FLRA 604 (1980), aff'd as to other matters sub nom. Dep't of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright-Patterson). Specifically, it argues that "[e]ach [training] session would last an entire day, thereby at least tripling the number of instructors required to conduct the training and additional personnel would be required to develop and implement the training syllabus." Exceptions at 10-11. As such, it contends that the award affects its right to determine its budget and "must not be permitted to stand." Id. at 11.

      Accordingly, based upon the above the Agency concludes:

[i]n the instant case, there is no evidence in the record to indicate that any employees are adversely affected in any material way by the exercise of management rights while the enforcement of the provision, as interpreted by the arbitrator in the instant remedy, clearly abrogates management's right to assign work and to determine its budget in a substantial manner. Thus the Award fails to satisfy either prong of the analysis utilized by the FLRA in the U.S. Customs case.

Id. at 4 (citing Dep't of the Treasury, United States Customs Service, 37 FLRA 309 (1990) (Customs Service)).

B.      Union's Opposition

      The Union does not make any argument pertaining to the Agency's initial exception that the award was based on hearsay evidence. However, the Union argues that the award does not affect management's rights to assign work or determine its budget. Opposition at 1, 2. It contends that the decisions relied on by the Agency are "off point" and "distinguishable." Id. at 1. In this respect, the Union contends:

The Local 1482 and Local 3407 cases do not deal with important issues like officer safety and the use of deadly force, and therefore are different that [sic] the case at hand. The third case, Local 1917 (1990), is also not directly on point in that it did not deal with published Agency regulations.

Id. at 1-2.

      Moreover, the Union states that the award does not affect the Agency's right to determine its budget. Rather, it argues that "[a]ll the trainers are current INS employees, so requiring the Agency to comply with their own published regulations will not affect the Agency's budget in any way." Id. at 2. [ v61 p115 ]

IV.      Analysis and Conclusions

A.      The Agency Was Not Denied a Fair Hearing

      We construe the Agency's exception, "that the Arbitrator improperly considered hearsay evidence," as an assertion that the Arbitrator failed to conduct a fair hearing. See AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 100 (2001) (Local 4044). Applying this standard, the Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See GSA, Region 9, L.A., Cal., 56 FLRA 978, 979 (2000) (GSA) (citing AFGE, Local 1668, 50 FLRA 124, 126 (1995)). Further, it is well established that an arbitrator has considerable latitude in conducting a hearing, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. See GSA, 56 FLRA at 979 (citing AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996)); United States Dep't of Defense, Defense Mapping Agency, Hydrographic/Topographic Ctr., 44 FLRA 103, 108-09 (1992) (Defense Mapping Agency)). Finally, federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. Id. at 109.

      The Agency argues that the Arbitrator improperly relied on hearsay testimony of the eastern regional vice-president for the National Council when the vice-president discussed the status of the 1996 INS Firearms policy. Exceptions at 5. In this respect, the Authority has held that "[t]he liberal admission by arbitrators of testimony and evidence is a permissible practice." See Defense Mapping Agency, 44 FLRA at 109 (citing Veterans Admin. and VA Med. Ctr. Register Office, 34 FLRA 734, 738 (1990)). As such, and based on the above rationale, the Authority has found that an arbitrator may rely upon hearsay evidence and still conduct a fair hearing. See Local 4044, 57 FLRA at 100. Accordingly, the Agency's argument does not demonstrate that the award is deficient.

B.      The Award Is Not Contrary to Law  [n5] 

      The Agency's arguments which state that the Arbitrator's "enforcement of the [disputed] provision . . . clearly abrogates management's right to assign work and determine its budget . . . [and] [t]hus the Award fails to satisfy either prong of the analysis utilized by the FLRA in the U.S. Customs case[]," is an assertion that the award is deficient because it is contrary to law. Exceptions at 4, 6-10 (Agency citing to several cases contending that the award is "contrary to law" because it affects its right to assign work and determine its budget.) When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFEE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP).

      Upon finding that an award affects a management right, the Authority applies a two-prong test to determine if the award is deficient. BEP, 53 FLRA at 152-53. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a provision in the agreement that was negotiated pursuant to § 7106(b) of the Statute. [n6]  Id. at 153. 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 provision in the agreement at issue. Id. at 154. An award that fails to satisfy either [ v61 p116 ] prong I or prong II will be set aside or remanded to the parties. Id.

1.      The Award Affects Management's Right to Assign Work

      The Authority has held that "the right to assign work encompasses decisions as to the type of training to be assigned and the frequency and duration of the training." NTEU, 45 FLRA 339, 358 (1992). As the award affects the Agency's determinations as to the type of training to be assigned (classroom firearms training) and its frequency and duration (quarterly all day training), the award affects management's rights to assign work under § 7106(a)(2)(B). See Award at 11, 19.

2.      The Award Does Not Affect Management's Right to Determine its Budget

      With respect to the Agency's contention that the award affects the Agency's right to determine its budget, the Agency has failed to show specifically how this right is affected. In Wright-Patterson, 2 FLRA 604, the Authority set forth the two-part test used to assess whether a proposal/provision directly interferes with management's right to determine its budget under § 7106(a)(1) of the Statute. See also NAGE, Local R14-52, 48 FLRA 1198, 1202-08 (1993) (restating the Wright-Patterson test). Under the first part of the test, a proposal/provision that prescribes either the particular programs to be included in the Agency's budget, or the amount to be allocated in the budget, would affect the Agency's right to determine its budget. Under the second part of the test set forth in Wright-Patterson, where an 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 a proposal/provision affects an agency's right to determine its budget. [n7]  See AFGE, Locals 3807 and 3824, 55 FLRA 1, 4 (1998) (Locals 3807 and 3824).

      Applying the first part of the Wright-Patterson test, there is no contention that the provision in this case "prescribe[s] particular programs, operations, or amounts to be included in an agency's budget." Applying the second part of the test, the Agency has argued that Article 24(C), as interpreted by the Arbitrator, will result in increased costs. However, the Agency has failed to establish that this increase in costs "is significant and unavoidable and is not offset by compensating benefits[.]" Wright-Patterson, 2 FLRA at 608. In this respect, the Agency has neither shown how much this award will cost the Agency nor has it set forth how much of its overall budget would be impacted by this award. As such, given that the Agency must make "a substantial demonstration that an increase in costs is significant and unavoidable[,]" in the absence of such showing we find that the Agency has failed to establish that the award affects its right to determine its budget. Locals 3807 and 3824, 55 FLRA at 4.

3.      The Award Does Not Impermissibly Conflict with The Agency's Right to Assign Work

      Under prong I of BEP, we examine whether Article 24(C), which incorporates Article 23(B) of the INS Firearms Policy, is enforceable as having been negotiated pursuant to § 7106(b). [n8]  In order to determine whether a provision, as interpreted and applied by the arbitrator, is enforceable as having been negotiated pursuant to § 7106(b)(3), we assess whether the provision constitutes an arrangement within the meaning of § 7106(b)(3) and whether it excessively interferes with the exercise of a management right. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Oakdale, La., 59 FLRA 277, 279 (2003) (Member Pope dissenting); BOP, Oklahoma City, 58 FLRA at 110. The Agency does not dispute that Article 24(C) constitutes an arrangement. Therefore, we do not address that part of the BEP analysis. See, e.g., Dep't of Homeland Sec., Bureau of Immigration & Customs Enforcement, 60 FLRA 131, 134 (2004).

      The Agency argues (albeit by citing the wrong legal standard) that the award impermissibly interferes with its right to assign work. However, the Agency fails to argue or otherwise establish how its right to assign work is specifically burdened. [n9]  Thus in applying BEP, we find that the Agency has failed to show how Article 24(C), as interpreted and applied by the Arbitrator, excessively interferes with management's right to assign work. See, e.g., United States Dep't of the Treasury, [ v61 p117 ] United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 n.3 (1999) (rejecting agency argument that § 7106(a) right was violated where the agency "failed to offer any evidence or argument to support [those] contentions.") Accordingly, the Agency has not shown that the award is contrary to prong I of BEP. As the Agency does not contend that the award violates prong II of BEP, we find that the award is not contrary to law. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 57 FLRA 158, 160 (2001) (Chairman Cabaniss dissenting as to other matters) ("[t]he Agency does not argue that the award fails to satisfy prong II of BEP. Consequently, we do not address prong II.")

V.      Decision

      The exceptions are denied.


File 1: Authority's Decision in 61 FLRA No. 22
File 2: Opinion of Member Armendariz


Footnote # 1 for 61 FLRA No. 22 - Authority's Decision

   Member Armendariz' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 22 - Authority's Decision

   Both policies were incorporated in pertinent part into the parties' collective bargaining agreement through Article 24(C).


Footnote # 3 for 61 FLRA No. 22 - Authority's Decision

   Pertinent portions of Article 23(B) of the 2003 INS Firearms Policy and Article 24(C) of the parties' agreement are set forth, below:

Article 23(B)(1)
In conjunction with the quarterly firearms qualifications for Service officers, Authorizing Officials shall schedule the remainder of the workday for additional firearms-related training. The training shall consist of a combination of classroom instruction and practical exercises and shall be accomplished during the regular day. . . .
Award at 2.

Article 24(C)

Quarterly Qualifying
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.
Exceptions, Ex. 2, Joint Ex. 1 at 45.

Footnote # 4 for 61 FLRA No. 22 - Authority's Decision

   The Arbitrator also found that the grievance was timely, that it could be brought at the local level, that enforcement of the contract and INS policy did not usurp the authority of the Director of the National Firearms Unit and that the policy and the agreement did not affect management's rights to determine its internal security. Award at 10-14. As the Agency does not except to any of these conclusions, we do not address them further.


Footnote # 5 for 61 FLRA No. 22 - Authority's Decision

   To the extent that the Agency is also raising a separate and distinct arbitrability claim that the Arbitrator did not "properly consider the Agency's non-arbitrability argument regarding management's right to assign work," we note that the Authority has consistently held that the management 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 Info. Agency, 32 FLRA 739, 748-49 (1988); Newark Air Force Station, 30 FLRA 616, 631-35 (1987); Marine Corps Logistics Support Base, Barstow, Cal., 3 FLRA 397, 3