National Treasury Employees Union, Chapter 138 (Union) and United States, Department of Homeland Security, United States Customs and Border Protection (Agency)

[ v61 p642 ]

61 FLRA No. 125

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 138
(Union)

and

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

0-AR-4017

_____

DECISION

July 31, 2006

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Gentile filed by the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator held that Union Chapter Presidents are permitted to wear civilian clothing, rather than uniforms, only when their Union offices are located at sites other than Agency work sites. For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency directed the grievant, a Union Chapter President who is on 100 percent official time, to wear his uniform during his tour of duty, including times when he was engaged in Union-related activities. In response, the grievant asserted that the Agency had changed conditions of employment and requested to bargain. When the Agency denied the grievant's request, the grievant filed a grievance that was unresolved and submitted to arbitration.

      Before the Arbitrator, the Union claimed that as the grievant is a full-time Union representative, he is not required to wear a uniform. According to the Union, there was a "longstanding practice" of allowing the grievant to wear civilian clothes. Award at 3. The Agency, on the other hand, maintained that the events of September 11, 2001, along with its integration into the Department of Homeland Security had created "a different atmosphere that changed the rules governing the Agency." Id. at 4. According to the Agency, it had a management right to require the grievant to wear a uniform at all times.

      The Arbitrator rejected both parties' positions. In this regard, the Arbitrator found that the parties' dispute involved "a number of complexities[,]" including "external law." Id. at 7. The Arbitrator also found it "uncontroverted" that the "parties had negotiated a practice" permitting Chapter Presidents to wear civilian clothes when performing Union duties. [n1] Id. at 7. However, the Arbitrator found that the practice was limited. Specifically, the Arbitrator concluded that a Chapter President may wear civilian clothing only when, as relevant here, the Chapter President's Union office is not situated on a "Customs site[.]" [n2] Id. at 9. In reaching this conclusion, the Arbitrator relied primarily on the testimony of a management official -- a former Union Chapter President -- who testified that he had been "a principal participant in the negotiations" concerning this issue and that "the agreement" that Chapter Presidents could wear civilian clothing pertained only to those officials whose Union offices were not on Agency sites. Id. at 8.

      Based on the foregoing, the Arbitrator concluded that the parties had "agreed" that Chapter Presidents are permitted to wear civilian clothing only where the Union office is not situated on a "Customs site[.]" Id. at 9. Accordingly, as his award, the Arbitrator held that "[a] Chapter President may wear civilian clothing in those instances where the Union Office is located at a site other than a U.S. Customs site."  [n3] Id. at 10. [ v61 p643 ]

III.     Positions of the Parties

A.     Union Exceptions

      The Union argues that the award is contrary to law because the Arbitrator relied on inapposite external law and ignored long-established Authority case law upholding the statutory right of union officials to wear civilian clothes when performing union duties.

      The Union also argues that the award is based on nonfacts. According to the Union, the former Chapter President's testimony demonstrated that the right to wear civilian attire was established by past practice, not a negotiated agreement, and that the Arbitrator erred by finding that there were negotiations over this matter. The Union also argues that the Arbitrator ignored the testimony of two Union witnesses that they had Union offices at Customs sites and began work at those on-site offices in civilian clothes.

      In addition, the Union contends that the award fails to draw its essence from the parties' agreement. The Union asserts that Articles 25 and 33 were raised before, but never mentioned or addressed by, the Arbitrator. [n4]  According to the Union, neither Article specifically addresses "the practice of . . . wearing civilian clothes" because that matter has never been the subject of collective bargaining. Exceptions at 14. Therefore, the Union claims, the award fails to draw its essence from the agreement because "the [A]rbitrator manufactured an agreement limiting civilian clothes to off-site offices, which was never [the] subject of negotiations." Id. at 15.

B.     Agency Opposition

      The Agency asserts that the Arbitrator did not rely on external law in reaching his award and that, if the Arbitrator had done so, then he would have concluded the Agency can direct Union officials to wear uniforms without regard to location of their offices.

      The Agency also asserts that the award is not based on nonfacts. According to the Agency, the former Chapter President testified that he had participated in negotiations over Articles 25 and 33 of the parties' agreement. The Agency also claims that the Union provides no basis for determining that the Arbitrator would have reached a different conclusion absent his challenged finding. With regard to the Arbitrator's alleged failure to consider certain witness testimony, the Agency argues that the Union is improperly challenging the weight that the Arbitrator attributed to witness testimony.

      As for the Union's essence claim, the Agency asserts that Article 25 of the parties' agreement provides management the right to direct Union officials to wear uniforms at all times. The Agency contends that, if the award fails to draw its essence from the parties' agreement, then it is because the Arbitrator erred in finding that Union officials may wear civilian clothes when not expressly authorized by management. [n5] 

IV.     Analysis and Conclusion

A.     The award is not contrary to law.

      The Union alleges that the award is contrary to law. The Authority reviews questions of law raised by an arbitrator's award and exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying 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 such a determination, the Authority defers to underlying factual findings. See id.

      The factual premise of the Union's exception is that the Arbitrator erroneously found, based on external law, that the Agency was permitted unilaterally to terminate a past practice concerning wearing uniforms. However, the award is not based on such finding. To the contrary, the Arbitrator did not terminate a past practice; the Arbitrator directed the Agency to permit Chapter Presidents to wear civilian clothing in situations where he interpreted such wear had previously been permitted. Thus, the factual premise of the exception is wrong. Moreover, insofar as the Union contends that Union representatives have a right under the Statute to wear civilian clothes, the Union also is wrong. The Authority has held only that parties may agree to permit Union representatives to wear civilian clothes in various situations, not that there is a right to do so in the absence of an agreement. See ACT, Montana Air Chapter 29, 57 FLRA 55 (2001); NAGE, Local R3-84, SEIU, AFL-CIO, [ v61 p644 ] 23 FLRA 536 (1986). Accordingly, we deny the exception.

B.     The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). A challenge to the weight accorded a witness's testimony does not provide a basis for finding an award deficient. AFGE, Local 2006, 59 FLRA 947, 949 (2004) (Local 2006).

      The Arbitrator found that "[t]he testimony of [the former Chapter President] stated that he was a principal participant in the negotiations that permitted Chapter President[s] to wear civilian clothing." Award at 8. The Union asserts that this finding is clearly erroneous, because neither party alleged that there were such negotiations.

      The award on this point is confusing. In particular, as the Union points out, the Arbitrator appeared to credit testimony that there were "negotiations that permitted Chapter President[s] to wear civilian clothing." Id. However, the Arbitrator also found that the parties had "negotiated a practice[,]" referred to an "agreed[-] to practice," and acknowledged the Union's claim that there was a "past practice." Id. at 7, 9, 8.

      Despite the confusion, the Union has not demonstrated that the award is deficient. In this regard, even if the Arbitrator made a factual error in describing this situation as an "agreement," rather than a "past practice," this error does not warrant a finding that the award is based on a nonfact. In particular, there is no basis for concluding that the Arbitrator would have reached a different award if he found that a past practice -- not an agreement -- existed. Thus, the Union has not demonstrated that the alleged factual error is "clearly erroneous, but for which a different result would have been reached by the arbitrator." Lowry AFB, 48 FLRA at 593.

      As for the Union's assertion that the Arbitrator ignored the testimony of two Union witnesses, in effect, the Union is challenging the Arbitrator's decision to credit the testimony of the former Chapter President. As noted previously, such a challenge does not provide a basis for finding that an award is deficient. Local 2006, 59 FLRA at 949.

      Accordingly, we deny the exception.

C.     The award does not fail to draw its essence from the parties' agreement.

      For an award to be found deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States DOL (OSHA), 34 FLRA 573, 575 (1990). A claim that an arbitrator misinterpreted an alleged past practice is analyzed under the essence rubric. See, e.g, United States Dep't of Labor, Mine Safety & Health Admin., 61 FLRA 232, 236 (2005).

      The Union claims that the award fails to draw its essence from the agreement because "the [A]rbitrator manufactured an agreement limiting civilian clothes to off-site offices, which was never [the] subject of negotiations." Exceptions at 14. According to the Union, the grievance involved a past practice, not an agreement provision, and the Arbitrator misinterpreted the "presented past practice." Id. at 2.

      As set forth above, it is unclear whether the Arbitrator found that a collective bargaining agreement or a past practice was controlling. However, as was the case with the alleged nonfact, the award is not deficient even if, as the Union claims, the Arbitrator erred in failing to find a past practice. In this regard, the Union provides no basis for finding that the Arbitrator's conclusion that civilian clothes are permitted only where a Union office is off-site is irrational, implausible, or otherwise deficient. Applying the same standard, the Union has not demonstrated that the award fails to draw its essence from either Article 25 or 33. Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied.



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

   In addition to addressing this issue, the Arbitrator rejected the Agency's claim that the grievance was untimely and the Union's claim that the Agency had retaliated against the grievant. As neither of these findings is at issue in the exceptions, they will not be discussed further in this decision.


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

   The Arbitrator also found that a Chapter President whose Union office was located off-site could wear civilian clothes when there was a need to visit a Customs site to perform Union business. See Award at 9.


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

   We note that the original award states that the grievant "is considered to be on Union business and generally does functi