United States, Department of Homeland Security, Customs and Border Protection, El Paso, Texas (Agency) and American Federation of Government Employees, Local 1929 (Union)

[ v61 p684 ]

61 FLRA No. 139

UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY, CUSTOMS AND
BORDER PROTECTION
EL PASO, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1929
(Union)

0-AR-3960

_____

DECISION

August 23, 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 the clarification of an award of Arbitrator Bernard Marcus filed by the Agency under § 7122(a) of the Fe-deral 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.

      This matter concerns whether the Agency met its duty to bargain over proposed changes to the Law Enforcement Communications Assistant (LECA), Standard Operating Procedures (SOP), for the El Paso Sector. The Arbitrator found that the Agency had not fulfilled its obligation, directed the Agency to rescind the SOP, gave the parties a schedule for requesting negotiations, and ordered a posting. For the reasons that follow, the Agency's exceptions are denied.

II.     Background and Arbitrator's Award

A.      Background

      The Agency proposed changes to the LECA SOP, in the El Paso Sector. Article 3A of the parties' agreement requires the Union to present to the Agency, within 10 calendar days, its views and concerns regar-ding the proposed changes or their impact. [n1]  Article 3A also provides that:

The Union will present its views and concerns (which must be responsive to either the proposed change or the impact of the proposed change) within a set time after receiving notice [from] Management of the proposed change. In the absence of timely Union proposals Management will have no obligation to enter into negotiations."

See Award at 3-4. Thus, in the absence of timely Union action, the Agency may implement the proposed changes without any further action.

      On the day the Union's response to the LECA SOP was due, the Local Union President, working at home, realized he did not have a copy of the Agency's proposed changes with him. He telephoned the Agency's Labor Relations Specialist and asked her to fax a copy to him, and requested an extension of time to submit the Union's response to the Agency's proposed changes. When he had not heard from the Labor Relations Specialist, the Local Union President again telephoned the Labor Relations Specialist, who informed him that she would fax a copy of the proposed changes to him the next day, and that she would not grant an extension of time. The Local Union President remarked to the Labor Relations Specialist that this would be after expiration of the ten-day deadline for responding to the proposals. See Award at 6. The Labor Relations Specialist did not fax the proposed changes to the Local Union President.

      The Local Union President wrote Agency management on the day after the comment was due, again requesting an extension and also requesting negotiations on the proposed changes, and a delay in their implementation. In reply, the Agency denied the request for an extension and denied the request to bargain.

      The Union filed a grievance, the matter went to arbitration, and the parties ultimately stipulated the fo-llowing issue to the Arbitrator:

Did the Agency meet its duty to bargain with the Union over the proposed changes to the LECA SOP pursuant to Article 3A of the Collective Bargaining Agreement (CBA)? If not, what is the remedy.

Award at 2. [ v61 p685 ]

B.     Arbitrator's Award

      The Arbitrator determined that the agreement did not require the Union to submit an initial written request to bargain or a written statement of its concerns because the case involved bargaining at the Sector level. According to the Arbitrator, under the agreement, the only requirement for an initial written submission is at the National level.

      The Arbitrator also determined that the Local Union President's telephone calls to the Agency's Labor Relations Specialist put the Agency on notice that the Union wanted to discuss and bargain over the Agency's proposed changes for the LECA SOP. The Arbitrator further determined that although the Local Union President apparently did not use any special words to convey the Union's desire to discuss concerns or negotiate, the Local Union President communicated the Union's desire to discuss or negotiate. In particular, the Arbitrator noted the Local Union President's statement to the Agency's Labor Relations Specialist that receiving the requested faxed copy of the Agency's proposed changes on a subsequent day would be after the deadline for comment. The Arbitrator found this comment was sufficient to convey the Union's intent to discuss or negotiate the LECA SOP. The Arbitrator opined that if the Labor Relations Specialist had wanted more detail, she could have requested it.

      The Arbitrator found that the Local Union President's subsequent written letters to the Agency had no probative value in determining whether he had communicated the Union's desire to engage in discussion or negotiation over the LECA SOP. Accordingly, the Arbitrator concluded that the Local Union President's telephone conversation with the Labor Relations Specialist fulfilled the Union's obligation under Article 3A of the parties' agreement. According to the Arbitrator, the Labor Relations Specialist knew that the Local Union President was seeking to defer implementation and to negotiate. The Arbitrator determined that "[t]his is all that Article 3A requires." Award at 17.

      Consequently, the Arbitrator upheld the grievance. As a remedy, the Arbitrator directed the Agency to rescind the LECA SOP at issue, and gave the parties a schedule for requesting negotiations and bargaining. The Arbitrator also directed a posting and retained jurisdiction for 30 days for the sole issue of resolving any questions regarding the sufficiency of the posting.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award fails to draw its essence from the agreement because it evidences a manifest disregard of the agreement. In this regard, the Agency asserts that the award shifts onto the Agency the "burden of production" to produce proposals. Exceptions at 7. Further, the Agency claims that the award requires the Agency to ask the Union if it has concerns or proposals - based on the Arbitrator's comment that the Labor Relations Specialist could have asked the Union about its concerns during the telephone conversation. See id. at 8. The Agency contends that the agreement requires the Union to submit timely proposals, it does not state that the Agency has an obligation to elicit information from the Union to fill in the details of an otherwise deficient or non-existent proposal See id. at 9.

      The Agency also argues that the award fails to draw its essence from the agreement because it fails to recognize that the agreement clearly and unambiguously differentiates between "request negotiations" and "present views and concerns" under Article 3A. Exceptions at 9. The Agency asserts that the Arbitrator applied the maxim "to express one thing is to exclude another" in his analysis of whether the Union was required to submit written proposals or request to discuss its concerns. Id. at 10. The Agency then states that the Arbitrator was required to use that same maxim to analyze the agreement's requirements for requesting negotiations or presenting views and concerns that must be responsive. The Agency contends that the parties differentiated the two concepts but the Arbitrator did not, and thus the Arbitrator failed to consistently apply the standard of contract interpretation. In addition, the Agency maintains that the parties designed the agreement to ensure a free flow of communication by an exchange of documents, and that the Arbitrator's interpretation of the parties' agreement will foster "miscommunication" between the parties. Id. at 13.

      Further, the Agency contends that the Arbitrator violated "Authority rule" by failing to consider past practice when interpreting the parties' agreement, and instead relied exclusively on "clear and unambiguous" agreement language to find that the past practice is of no relevance. Exceptions at 16-17 (citing award at 11). The Agency also contends that the Arbitrator failed to consider past practice in determining the parties' intent as to whether the parties' agreement requires the Union's input to be in the form of a "responsive proposal." Id. at 16-17. The Agency asserts that the agreement [ v61 p686 ] requires responsive proposals to be submitted in writing, and the parties' past practice was consistent with that understanding. The Agency argues that the record and the standards and principles applied by arbitrators and by federal courts do not support the Arbitrator's disregard of the practice between the parties.

B.      Union's Opposition

      The Union contends that the Authority defers to an arbitrator's interpretation of the parties' agreement, and that the Agency's disagreement with the Arbitrator's conclusions does not render the award irrational, implausible, or evidence of a manifest disregard of the agreement.

      The Union argues that the Agency creates a "doom-and-gloom scenario" and then uses an "exaggerated hypothetical" to support its exceptions. See Opposition at 5. The Union asserts that the Agency cannot raise before the Authority issues that were not presented to the Arbitrator, citing § 2429.5 of the Authority's Regulations.

      The Union then addresses the Agency's contention that the award failed to follow Authority rule. Contrary to the Agency's assertion, the Union states that the Arbitrator did consider past practice and held that the past practice is not relevant because the contract language is clear and unambiguous. The Union argues that this action is consistent with Authority precedent. The Union also argues that Authority precedent supports the Arbitrator's reliance on the clear language of Article 3A itself, as well as the agreement as a whole.

IV.     Analysis and Conclusions

A.      The Arbitrator's Interpretation of the Contract Does Not Fail to
          Draw Its Essence from the 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).

      The Agency's essence exceptions all rely on the contention that the Union was required to submit written bargaining proposals to invoke its rights under Article 3A. In this connection, the Agency argues that the Arbitrator erred in determining that the Union met the requirements of Article 3A to notify the Agency that it wanted to comment and negotiate on the proposed changes. The Agency also contends that the award fails to recognize that the agreement clearly and unambiguously differentiates between "request negotiations" and "present views and concerns[.]" See Exceptions at 9. Finally, the Agency asserts that the parties' agreement requires the Union to submit a written response to any proposed changes.

      We conclude that the Agency has not demonstrated that the award is deficient on this ground. In particular, we note the parties' agreement provides that at the Sector level, the Union and local management will meet to discuss the changes prior to the commencement of any negotiation. See Appendix, Article 3A. Nothing in the agreement requires the Union at that level to initially submit written proposals. Thus, the Arbitrator's interpretation of the agreement is not implausible, irrational, unfounded in fact, or unconnected to the wording of the agreement. As such, these exceptions provide no basis for finding the award deficient. See AFGE, Local 3887, Nat'l Council of Dep't of Educ. Locals, Council 252, 48 FLRA 717, 722 (1993). Accordingly, we deny the Agency's exception that the award fails to draw its essence from the parties' agreement.

B.      The Arbitrator's Assessment of Any "Past Practice" between the
          Parties Is Not Inconsistent with Authority Precedent

      The Agency's last exception contends that the Arbitrator did not follow Authority rule while interpreting the agreement. We construe the exception as a contention that the Arbitrator's assessment of past practice is inconsistent with Authority precedent.

      Under Authority precedent, an arbitrator may appropriately determine whether a past practice has modified the terms of a collective bargaining agreement; such a determination is a matter of contract interpretation subject to the deferential essence standard of review. See NTEU, Chapter 207, 60 FLRA 731, 734 (2005).

      Here, the Arbitrator found that Article 3A of the parties' agreement was plain and unambiguous. See Award at 12-13. Specifically, as to bargaining at the Sector level, the Arbitrator determined that "[t]he labor agreement does not contain any language regarding written notice." Id. at 12. The Arbitrator concluded that although the parties may have exchanged written proposals at some time in the past, that informal practice [ v61 p687 ] did not modify the written terms of the agreement. The Agency's exception does not demonstrate that this determination fails to draw its essence from the agreement because it is irrational, implausible, or unfounded, or otherwise disregards the agreement. Therefore, there is no basis for finding the award deficient on this ground. See United States Dep't of Justice, Fed. Bureau of Prisons, Mgmt. & Specialty Training Ctr., Aurora, Colo., 56 FLRA 943, 944 (2000). Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

Article 3 of the parties' collective bargaining agreement provides in pertinent part:

A. The Service and Union recognize that the participation of employees in the formulation and implementation of personnel policies and practices affect their well being and the efficient administration of the government. The parties further recognize that the entrance into a formal agreement for the exchange of information in the broad area of personnel policy or practice at the national, regional, and local levels may contribute to the effectiveness of the labor- management relationship. They, therefore, agree to the following forums for the purpose of informally discussing all matters of interest or concern in the areas of personnel policies, practices and matters affecting working conditions, whether or not spoken to in the agreement. These discussions will not assume the character of formal negotiations. Although further study of problems raised by the Service or the Union during these discussions may result, neither the Service nor the Union is obligated to reach agreement on the issues addressed during these discussions.

. . . .

D. Representatives of the Service and the Union at the Sector level shall have the opportunity to meet quarterly or at the request of either party for the settlement of local problems and for the improvement of communications, understanding, and cooperation between the Service and constituent units of the Union. Any understanding reached at these meetings shall be recorded, signed by the parties involved, and copies forwarded to the Local President or his or her designee and the Regional Director. Such understanding will remain in effect until amended through negotiations.

Article 3A of the parties' collective bargaining agreement provides in pertinent part:

Impact Bargaining at the National, Regional and Sector Level

A. The parties recognize that from time to time during the life of the agreement, the need will arise requiring the change of existing Service regulations covering personnel policies, practices, and/or working conditions not covered by this agreement. The Service shall present the changes it wishes to make to existing rules, regulations and existing practices to the Union. The Union will present its views and concerns (which must be responsive to either the proposed change or the impact of the proposed change) within a set time after receiving notice from Management of the proposed change. In the absence of timely Union proposals Management will have no obligation to enter into negotiations. Nothing in this article shall require either party to negotiate on any matter it is not obligated to negotiate under applicable law.

The time will be:
Thirty (30) calendar days at National Level
Fifteen (15) calendar days at Regional level
Ten (10) calendar days at Sector level

National level:

At the end of the time period of the National level, the Union will serve notice of an intent to start negotiations. The Union will present its written proposals within ten (10) calendar days, and negotiations will commence the following calendar week. Agreements rea