United States, Department of Homeland Security, Customs and Border Protection, San Diego, California (Agency) and American Federation of Government Employees, Local 2805 (Union)

[ v61 p136 ]

61 FLRA No. 26

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

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2805
(Union)

0-AR-3920

_____

DECISION

July 29, 2005

_____

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

I.      Statement of the Case

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

      This case concerns a Union grievance regarding the denial of official time and whether the parties reached a binding local supplemental agreement (local agreement) permitting such official time. The Agency claimed that the local agreement was never executed and, therefore, was not in effect. The Arbitrator upheld the grievance. For the reasons that follow, we deny the Agency's exception.

II.     Background and Arbitrator's Award

      The parties bargained over a local agreement. One issue discussed during the bargaining was a Union proposal granting 25% official time for a Union representative at a particular location. The bargaining concluded and the Agency sent the initial draft version of the local agreement to the Union for review and finalization. That draft included the Union's 25% official time proposal. Award at 6. With the Agency's consent, the Union assumed responsibility for finalization of the local agreement. The Union sent the local agreement to the Agency's Director and the national council for the Agency to sign. Under the parties' master agreement, the Agency had 90 days to disapprove the local agreement or it automatically went into effect. The Agency failed to act within the 90 days required by the agreement. Not until 8 months later did the Agency communicate its disapproval of the local agreement; specifically, that the Agency did not agree with the 25% official time provision.

      The Agency contended that the local agreement was never executed, based on Article 50 of the parties' national agreement and, therefore, the local agreement should not be considered an enforceable agreement. [n1]  At the hearing, the Agency explained that it had implemented most of the provisions in the disputed local agreement not because the parties had a binding agreement, but because doing so was "the right thing to do" and the Agency was exercising "responsible management." See Award at 7. The Agency did not deny the Union's account of the facts leading up to its denial of the official time request. Instead, the Agency continued to claim that the disputed local agreement was not binding because the Agency had not "executed" it. Id.

      The Union testified that the parties had agreed to the 25% official time. The Arbitrator found that the Union witnesses were more credible than the Agency witnesses, and after considering the record, concluded that the parties had a meeting of the minds and had agreed to the 25% official time proposal. The Arbitrator also found that the Agency's actions in implementing several portions of the local agreement demonstrated that the parties had reached agreement at the bargaining table. Therefore, the Arbitrator sustained the grievance and ordered the Agency to allow the Union representative 25% official time.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency contends that the award is contrary to law because the local agreement was never executed, based on Article 50 of the parties' national agreement and, therefore, the local agreement should not be considered [ v61 p137 ] an enforceable agreement. Based on a plain reading of Article 50, the Agency contends that an agreement may not be implemented unless it has been submitted to, and approved by, the Service's headquarters.

      The Agency disputes the facts as to whether the parties had agreed at the bargaining table to the 25% official time proposal. The Agency argues that it did not sign the local agreement because the Director did not agree to certain terms in the agreement that "she believed had not been part of the negotiations." Exception at 3. Thus, the Agency asserts that there had not been a meeting of the minds on all topics discussed.

      The Agency argues that submission of any negotiated agreement, whether local agreement or master agreement, to the Agency's headquarters for approval is mandatory. Because the local agreement at issue here was never submitted, the Agency maintains that the local agreement could never be implemented as a binding agreement.

      The Agency further argues that Article 50, for purposes of "execution," has the same meaning as § 7114(c) of the Statute. The Agency contends that the provisions of § 7114(c) and Article 50 were not followed as required by the parties' master agreement. In that regard, the Agency asserts that not only was the local agreement not executed, the local agreement also was not submitted to the Council President and the Labor Relations Office at the Agency's headquarters for review and approval following execution. The Agency cites to the Union's own testimony-that the Union sent the unsigned local agreement to headquarters at the same time the Union sent it to local Agency officials for signature-as additional evidence that the local agreement was never executed, and a further reason why the local agreement "should not be effective." Exception at 7. The Agency contends that the execution of the local agreement should require the signatures of the local Union President and Agency Director, absent special circumstances which the Agency asserts do not exist here.

      Accordingly, the Agency argues that the award is contrary to law as it renders a document, never agreed on or executed by all parties, a binding agreement.

B.     Union's Opposition

      The Union did not submit an opposition.

IV.      Analysis and Conclusions

A.     The Award is not Contrary to Law

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [n2] 

      We construe the Agency's contrary to law contention as an argument that the award is contrary to § 7114(c) of the Statute. [n3]  We conclude for the following reasons that the Agency has not established that the Arbitrator's award is inconsistent with § 7114(c).

      Under § 7114, an agreement exists where "authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining." United States Dep't of Transp., Fed. Aviation Admin., Standiford Air Traffic Control Tower, Louisville, Ky., 53 FLRA 312, 317 (1977) (FAA). Although parties are required to execute a written agreement when requested, formal execution is not necessary for an agreement to be binding. See id. at 317-20.  

      Further, the Authority has expressly held that the existence of a collective bargaining agreement is primarily a question of fact, not a question of law. See Internal Revenue Serv., North Florida Dist., Tampa Field Branch, Tampa, Fla., 55 FLRA 222 (1999); see also FAA, 53 FLRA at 318 n.5. In so holding, the Authority specifically relied on the approach of the National Labor Relations Board and the federal courts. See e.g., Bobbie [ v61 p138 ] Brooks, Inc. v. Int'l Ladies Garment Workers Union, 835 F.2d 1164 (6th Cir. 1987) (Bobbie Brooks); Arco Electric Co. v. NLRB, 618 F.2d 698, 699 (10th Cir. 1980) enforcing 237 NLRB 708 (1978).

      As explained by the court in Bobbie Brooks, the principles controlling a determination of whether a collective bargaining agreement exists are well established. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, 835 F.2d at 1168 (citing Interprint Co., 273 NLRB 1863 (1985)); accord FAA, 53 FLRA at 317. "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Bobbie Brooks, 835 F.2d at 1168. (Citation omitted). "[I]t can be shown by conduct manifesting an intention to abide by agreed-upon terms." Id. See also United States Dep't of Commerce, Patent & Trademark Office, Arlington, Va., 60 FLRA 869, 880-81 (2005) (discussing Bobbie Brooks precedent). The surrounding circumstances and the intentions of the parties may be considered to determine if a collective bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987).

      In this case, the Arbitrator considered the bargaining history and found that the parties had reached agreement on the Union's official time proposal. The Arbitrator also noted that the parties reached agreement on several other provisions and that the Agency had implemented most of these provisions. The Arbitrator found that the official time proposal was included in the local agreement. Based on this finding, the Arbitrator sustained the grievance and ordered the Agency to grant the Union's Secretary 25% official time. Because the Arbitrator's determination of the existence of a collective bargaining agreement is primarily a factual finding to which we defer, the Agency's contrary to law argument provides no basis for finding the award deficient. Accordingly, we deny the exception.

B.     The Award does not Fail to Draw its Essencefrom the Parties' Agreement

      We also construe the Agency's position regarding Article 50 of the parties' agreement as a contention that the award fails to draw its essence from the parties' master agreement.

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      After considering the award, we find that the award is not so unfounded, implausible, irrational, or in disregard of the agreement as to fail to draw its essence from the agreement. The Agency's reliance on Article 50 is misplaced; as found by the Arbitrator, Article 50 does not require the parties to physically sign a local agreement for the agreement to have been "executed." As a result, the Agency's failure to sign the agreement does not mean that the agreement was not "executed," and thus the award is not contrary to Article 50. Accordingly, we deny the exception.

V.      Decision

      We deny the Agency's exception.



Footnote # 1 for 61 FLRA No. 26 - Authority's Decision

   Article 50 provides in pertinent part:

All Supplemental Agreements are to be immediately forwarded to the Council President and the Labor Relations Office at the Service's headquarters for review and approval following their execution by the Local Parties. Supplemental Agreements