American Federation of Government Employees, Local 1917(Union) and United States, Department of Homeland Security, United States Citizenship and Immigration Services, New York, New York (Agency)

[ v61 p579 ]

61 FLRA No. 111

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES
NEW YORK, NEW YORK
(Agency)

0-AR-3966

_____

DECISION

May 5, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Milden J. Fox filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' agreements by reducing the block of official time allotted to the Second Vice--President (VP) of the Union from 16 to 2 hours.

      For the following reasons, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The employees involved in this case were formerly employed by the Immigration and Naturalization Service (INS), New York District. In March 2003, INS was abolished and separated into three units under the United States Department of Homeland Security (DHS): the United States Citizenship and Immigration Services (CIS); Customs and Border Protection (CBP); and Immigration and Customs Enforcement (ICE). CIS, CBP, and ICE include employees who are represented by the Union. The unit consists of all former INS employees, except criminal investigators. This case involves the Union and the CIS, New York District.

      The Master Agreement (MA) relevant here is between the former INS and the National INS Council of the American Federation of Government Employees (AFGE). The Union, AFGE, Local 1917, and the former INS, New York District, signed a local supplemental agreement (LSA) and also negotiated a sidebar agreement (SA) that are still in effect. The SA provides the Union with a block of official time amounting to 50 hours a week, which the Union President, who was on 100 per cent official time, distributed as follows: 24 hours to the Executive VP, an ICE employee, 16 hours to the Second VP, the grievant and a CIS employee, and 10 hours to the Fourth VP, an ICE employee. Subsequently, the Union President, who is now no longer on 100 per cent official time, notified management that he would be using 24 hours of the block time and that 24 hours should be allotted to the Executive VP; 24 hours to the grievant, Second VP; and 16 hours for a fourth individual. See Award at 19. Because this request exceeded the 50 hours of block official time a week for the Union, the Agency modified the official time request such that the grievant, as Second VP, ended up with 2 hours and the fourth individual received no hours.

      Thereafter, the Union filed a grievance alleging that the Agency violated the SA to Article 7 of the LSA, when it reduced the block of official time for the grievant from 16 to 2 hours. [*  The Agency denied the grievance and the matter was submitted to arbitration on the stipulated issue of:

Did U.S. CIS New York City District violate the Sidebar Agreement? If so[,] what, if any, should be the remedy?

Award at 6. At the arbitration the parties also stipulated, among other things, that: (1) the agency is also known as CIS; (2) the above "three agencies [ICE, CBP, and CIS] are under the [DHS]"; (3) the "former [INS] was abolished in March 2003"; and (4) the "125% official block time equates to 50 hours of work time." Id. at 3.

      According to the Arbitrator, the Union asserted that the reorganization of INS into three separate units has "created three separate free-standing Agencies [,]" and that "each of the three units has established its own organizational administration (free-standing) while restricting the Union to the same 50 Official Block Time [ v61 p580 ] hours that were negotiated in the [SA];" and that a past practice existed concerning the Second VP's use of official time. Id. at 17 and 18. The Arbitrator stated that the Agency asserted that the employees represented by the Union "are the same now, with the `3 new agencies,'" as under INS, "except for the exclusion of the [c]riminal [i]nvestigators[.]" Id. at 18.

      The Arbitrator rejected the Union's contention that there was a binding past practice in which the Second VP received 16 hours of block official time finding that the evidence did not support this claim. The Arbitrator then stated that "[a]s pointed out by the Union, the instant grievance addresses the meaning and effect of the [SA] now that DHS has replaced . . . INS with the three alleged self-standing units." Id. at 21. The Arbitrator found that a March 12, 2003 memorandum from management provided, in part, that "all collective bargaining obligations that existed in various components prior to the [DHS] transfer carry forward and are still active . . . ." Id. The Arbitrator found, accordingly, that the SA "was still a binding agreement between [the Union] and CIS, NYC District." Id.

      Noting that in its "case presentation and post-hearing brief," the Union referred to the CIS, CBP, and ICE as "[a]gencies and self-standing," the Arbitrator stated that the "question that must be answered is whether or not (under DHS) . . . CIS ha[s] reached the status of a self-standing Agency." Id. at 22. The Arbitrator found that DHS never referred to CIS as an "Agency" other than to quote what the Union had called it. The Arbitrator found that the exhibits in the record reflected only one instance where a Government supervisor referenced the term "Agency" in describing CIS, CBP, or ICE. The Arbitrator found, therefore, that the evidence was insufficient to establish that CIS had reached the status of a self-standing agency. The Arbitrator thus determined that the Union had failed to show that CIS had independent status such that CIS must provide 50 hours of block official time to the Union. Accordingly, the Arbitrator found that the Union had failed to demonstrate that the Agency violated the SA by providing the grievant 2 hours of block official time and denied the grievance.

III.     Union's Exceptions

      The Union asserts that the Arbitrator exceeded his authority by disregarding the stipulations agreed to by the parties. Specifically, the Union asserts that the Arbitrator "disregard[ed] the parties' recorded stipulation[] that CIS is an agency." Exceptions at 3 (emphasis in exceptions). According to the Union, the stipulation directly answered the question posed by the Arbitrator of "whether . . .CIS ha[s] reached the status of a self-standing Agency." Id. at 8. The Union also contends that in addition to the stipulation, there is other evidence in the record to support a finding that CIS is an agency, including CIS's August 23, 2004 response to the grievance which "expressly refer[ed] to the fact that the `former INS has been reorganized into 3 new agencies.'" Id. at 10 (quoting Joint Exhibit 5, August 23 response). Therefore, the Union asserts that by "ignoring the parties' stipulations," the Arbitrator exceeded his authority. Id.

      The Union next contends that the award is deficient because it is based on a nonfact, namely the "mistaken belief that CIS is not an Agency." Id. The Union asserts that to deny the grievance "based on a conclusion which flatly contradicts stipulations of fact, is to base an award on a nonfact." Id. at 11.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed his Authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, or by addressing any issue that necessarily arises from issues specifically included in a stipulation. See NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996); United States Dep't of Justice, Immigration & Naturalization Serv., Honolulu Dist. Office, Honolulu, Haw., 43 FLRA 927, 935 (1992) . Also, the Authority accords an arbitrator's interpretation of a stipulated issue the same substantial deference accorded an arbitrator's interpretation of a collective bargaining agreement. See United States Dep't of the Air Force, Minot Air Force Base, North Dakota, 61 FLRA 366, 369 (2005) (Member Pope dissenting on other grounds).

      In the award, the Arbitrator did not disregard the parties' stipulations. Rather, the Arbitrator specifically examined such stipulations and found that the "parties, in their stipulations and case presentations, pointed out that the facts involved in the . . .case are not really in dispute. Where the parties disagree are the interpretations that each party puts on these facts." Award at 17. The Arbitrator noted that resolution of the grievance required a consideration of whether CIS is, for the purpose of the SA, a "self-standing Agency." Id. at 22. In resolving this issue, the Arbitrator determined based on the record and his interpretation of the parties' agreements [ v61 p581 ] that CIS was not a "self-standing" agency. In finding that the evidence did not establish that the CIS was a "self-standing" or "independent" agency under the parties' MA and SA, the Arbitrator did not disregard the specific limitations on his authority. Instead, the Arbitrator addressed the stipulated issue concerning whether CIS, New York District violated the SA, and in resolving this issue determined whether CIS was an independent agency, a matter that arose from issues included in the stipulation and concerns raised by the parties in interpreting the stipulation. Therefore, the Arbitrator did not exceed his authority.

B.     The Award Is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States DHS, Customs & Border Prot. Agency, N.Y., N.Y., 60 FLRA 813, 816 (2005). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id.

      At arbitration, the parties disputed whether the CIS was a "self-standing Agency." Award at 22. Accordingly, consistent with Authority precedent, the Union's claim does not demonstrate that the award is based on a nonfact. See, e.g., AFGE, Local 2128, 58 FLRA 519, 522-23 (2003).

V.     Decision

      The Union's exceptions are denied.


APPENDIX

SIDEBAR AGREEMENT

The provisions of Article 7--Official time of the LOCAL SUPPLEMENTAL AGREEMENT Between AFGE, Local 1917 and INS, New York District are supplemented as follows:
In recognition of the legitimate need to grant official time to the union in furtherance of an effective labor-management relationship and to balance that need against the successful fulfillment of the service's mission, a block of official time will be granted to union representatives of Local 1917.
1.