National Treasury Employees Union (Union) and United States, Department of Homeland Security, United States Customs and Border Protection, Washington, D.C. (Agency)

[ v61 p729 ]

61 FLRA No. 147

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES
CUSTOMS AND BORDER PROTECTION
WASHINGTON, D.C.
(Agency)

0-AR-4062

_____

DECISION

September 7, 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 Roger P. Kaplan filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.

      The Arbitrator concluded that he did not have jurisdiction over the subject matter of the grievance and, therefore, he denied the grievance.

      For the reasons that follow, we find that the award is deficient as contrary to law under § 7122(a)(1) of the Statute. Accordingly, we set the award aside and remand the matter to the Arbitrator for a decision on the merits.

II.     Background and Arbitrator's Award

      As relevant herein, the grievance in this case arose out of the parties' bargaining over the implementation of an Agency Directive (Directive) governing the use of wireless communications devices, including cell phones, in the workplace. The parties reached impasse on several proposals, including Proposal 8, which requires the establishment of a dedicated, manned phone line at all ports where the Directive prohibits employees from carrying a cell phone while on duty. [n1]  The Union requested the assistance of the Federal Service Impasses Panel (FSIP) in resolving the impasse. Relying on Commander, Carswell Air Force Base, Texas, 31 FLRA 620 (1988) (Carswell) and United States Dep't of the Interior, Bu. of Reclamation, Lower Colorado Region, Yuma, Ariz., 41 FLRA 3 (1991) (Yuma), for its authority, the FSIP noted that, consistent with Carswell, it may resolve negotiability issues raised by an agency in an impasse proceeding by applying previous Authority decisions finding a substantively identical proposal negotiable. The FSIP also noted that, consistent with Yuma, it could apply Authority precedent to a substantively identical proposal even where an agency raises a legal argument before the FSIP that was not previously considered by the Authority when it rendered its negotiability decision. Finding that Proposal 8 was substantively identical to a proposal in AFGE, Local 1122, 47 FLRA 272, 274-84 (1993) (Local 1122), regarding centralized phones in employee work areas to handle roll-over calls, the FSIP found that Proposal 8 was negotiable. [n2]  The FSIP asserted jurisdiction over the dispute, issuing an order directing the Agency to adopt Proposal 8. [n3] 

      After Agency-head review pursuant to § 7114(c)(4) of the Statute, the Agency concluded that Proposal 8 was inconsistent with law, refused to implement the FSIP's order, and unilaterally implemented the Directive. The Union filed a grievance claiming that the [ v61 p730 ] Agency's action violated Article 37 of the parties' bargaining agreement and was contrary to law, specifically, § 7116(a)(1), (5), (6), and (8) of the Statute.  [n4]  The parties were unable to resolve the grievance and it was submitted to arbitration.

      The parties stipulated to the issues as follows:

1.      Did the Agency violate Article 37 of the parties' Collective Bargaining Agreement and/or law by failing to implement the October 28, 2004 FSIP Order in Case Number 04 FSIP 100?
2.      If so, what should the remedy be?

Arbitrator's Award (Award) at 2.

      The Arbitrator concluded that "the Agency fully engaged in the bargaining process with the Union as contemplated by Article 37 of the Agreement." Id. at 10. The Arbitrator also noted that he had been requested to determine whether Proposal 8 was negotiable. He found in this regard that: (1) "the FLRA is the only appropriate forum to review the [FSIP's] Order;" and (2) "it is not the role of an arbitrator in these circumstances to make such a ruling." Id.

      Specifically, the Arbitrator cited AFGE v. FLRA, 778 F.2d 850 (D.C. Cir. 1985) (AFGE v. FLRA), which, according to the Arbitrator, "held that the negotiated grievance procedure was not available to a union to seek enforcement of a decision and order issued by the [FSIP]." Id. at 11. The Arbitrator noted that the court in AFGE v. FLRA "deferred" to the Authority's Interpretation and Guidance, 15 FLRA 564 (1984) (Interpretation and Guidance), which stated that the only two avenues of appeal available to a union to enforce a FSIP decision and order disapproved on agency-head review were a negotiability appeal and an unfair labor practice proceeding. Award at 11.

      Further, the Arbitrator acknowledged that arbitrators have authority to resolve collateral issues of negotiability in resolving grievances and noted that the FSIP had found Proposal 8 negotiable because it concluded the proposal was similar to a proposal that the Authority had previously found negotiable. However, the Arbitrator found that the circumstances of the case did not allow him to resolve whether Proposal 8 was consistent with law. He concluded that AFGE v. FLRA "is the established and controlling law governing the issue of enforcement of [FSIP] decisions and orders" and that the Union's only recourse was a negotiability appeal or an unfair labor practice. Id at 11-12. Consequently, the Arbitrator ruled that the Agency did not violate Article 37 or law by refusing to implement the FSIP's order and denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator's award is deficient under § 7122(a)(1) of the Statute because it is contrary to law. First, the Union maintains that it is an unfair labor practice under § 7116(a)(1), (5), and (6) of the Statute for an agency to disapprove, on agency head review, a FSIP-ordered provision that is substantively the same as a proposal that the Authority has found to be within the duty to bargain. Second, according to the Union, its claim that the Agency violated Article 37 of the parties' collective bargaining agreement is governed by the Authority's decision in Louis A. Johnson Veterans Administration Medical Ctr., Clarksburg, West Virginia, 15 FLRA 347 (1984) (Louis A. Johnson). The Union notes that in Louis A. Johnson the Authority held that arbitrators may make negotiability determinations in the context of resolving grievances alleging contract violations.

      With regard to its first argument, the Union maintains that, in Carswell and Yuma, which were decided after AFGE v. FLRA, the Authority "clarified that when a third party (such as the FSIP or an arbitrator) applies existing [Authority] precedent to a proposal that is substantially similar to one the [Authority] has already found negotiable, [the third party] is not deciding a negotiability question or usurping the [Authority's] function." Exceptions at 16. Consequently, the Union asserts, "the relevant inquiry for purposes of determining arbitrability is whether the duty to bargain issue underlying the unfair labor practice [issue] has already been resolved in previous [Authority] precedent." Id. at 19. According to the Union, if a dispute can be resolved by applying existing precedent, then "the reasoning and holding of AFGE v. FLRA does not apply[.]" Id. at 10. [ v61 p731 ]

      With regard to its second argument, the Union maintains that, to the extent its grievance alleged that the Agency violated Article 37 by disapproving Proposal 8, the grievance is also arbitrable because in resolving whether Article 37 had been violated, the issue of whether the Agency properly disapproved Proposal 8 would be only collateral to the issue of whether the contract had been violated. The Union maintains that the Arbitrator would be permitted to make that determination under Louis A. Johnson. Consequently, the Union contends that the Arbitrator erred when he ruled that he did not have the authority to determine whether Proposal 8 is consistent with law.

      Finally, the Union acknowledges that when the Authority determines that an arbitrator erred in finding a grievance is not substantively arbitrable, the Authority remands the matter to the parties for resubmission to the arbitrator for a decision on the merits. The Union claims that, because Proposal 8 is negotiable under existing precedent, the Agency committed an unfair labor practice in disapproving it and, correlatively, violated Article 37. The Union argues that the FSIP correctly found, based on Local 1122, that Proposal 8 is a negotiable appropriate arrangement under § 7106(b)(3) of the Statute. Because Authority precedent supports that conclusion, the Union maintains that the Authority should not remand the matter to the Arbitrator for a decision on the merits, but should determine the negotiability of Proposal 8, find that the Agency committed an unfair labor practice and violated Article 37, and order various remedies, including requirements that the Commissioner of Customs and Border Protection send a letter to all unit employees and post a notice informing them of the Agency's violation.

B.      Agency's Opposition

      The Agency contends that the Arbitrator properly applied the Interpretation and Guidance and AFGE v. FLRA "as the controlling legal authority on which forums a union can use to seek enforcement and review of a [FSIP]-imposed proposal that was rejected by the agency through the [§] 7114(c) agency head review process." Opposition at 17. According to the Agency, based on that precedent, the Arbitrator correctly found that, in order to challenge the Agency head's disapproval of Proposal 8, the Union was required to file either a negotiability appeal or an unfair labor practice charge.

      According to the Agency, "[t]he core essence of AFGE v. FLRA and the Interpretation and Guidance that it affirmed was not whether an arbitrator could decide a duty-to-bargain question, but rather, what [i]s the appropriate appeal process for a union to use to seek enforcement and review of an agency's [§] 7114(c) disapproval of a [FSIP]---imposed Order." Id. at 20. The Agency argues that neither Carswell nor Yuma concerned that issue. The Agency maintains that it would be "impractical and unreasonable" for an arbitrator to review an agency head disapproval of a FSIP order because it would "inject an extra and unnecessary layer of review before the Authority ultimately decides the negotiability question." Id. at 21. Moreover, the Agency argues that an arbitrator would have "no more expertise than the [FSIP] in deciding duty-to-bargain questions." Id. at 22.

      The Agency also asserts that the Louis A. Johnson line of cases does not apply in the circumstances of this case. In this regard, the Agency contends that "the Arbitrator would not need to make a negotiability determination regarding Article 37 ("Bargaining") . . . because the parties do not dispute the meaning or application of Article 37." Id. at 23. The Agency asserts that the negotiability of Proposal 8 is "not collateral to the question [of] whether the Agency violated Article 37[.]" Id.

      The Agency states that, if the Authority finds that the Arbitrator committed legal error or chooses to revise the law under the Interpretation and Guidance and AFGE v. FLRA, then the Authority should deny the Union's request that it decide the case on the merits. In this regard, the Agency claims that the Union has advanced "no valid reason" for the Authority to depart from its consistent practice of remanding the award to the arbitrator. Opposition at 26. The Agency also states that, if the Authority revises applicable law, such revision should only apply to future arbitration cases because the law in effect at the time the Agency head disapproved Proposal 8 precluded review of that determination through the grievance procedure.

      The Agency contends, in addition, that if the Authority decides to reach the issue, then the Authority should find that the disapproval of Proposal 8 is consistent with law. In this regard, the Agency argues that the FSIP did not have jurisdiction over the impasse because Proposal 8 is "not substantively identical" to the proposals at issue in Local 1122. Id. at 27. Specifically, the Agency argues that Proposal 8 affects management's rights to: (1) determine the technology, methods, and means of performing work, under § 7106(b)(1); (2) determine its internal security practices, under [ v61 p732 ] § 7106(a)(1); and (3) assign work, under § 7106(a)(2)(B). Further, the Agency contends that Proposal 8 is neither an "arrangement" nor an "appropriate" arrangement under § 7106(b)(3).

      Finally, the Agency maintains that if the Authority decides the merits of the case in favor of the Union, then the only appropriate remedy would be an order that it comply with the FSIP's Order. The Agency claims that it would be "unnecessary and superfluous, and thus inappropriate and unreasonable," to require the head of the Agency to send a letter to unit employees or post a notice.

IV.     Analysis and Conclusions

      The Union contends that the Arbitrator's award is contrary to law. The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the award is consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, the Authority defers to an arbitrator's underlying factual findings. See id. Specifically, where an arbitrator's substantive arbitrability determination is based on law, the Authority reviews that determination de novo. See AFGE, Council 236, Region 2, 61 FLRA 1, 2 (2005) (citing ACT, Show-me Army Chapter, 58 FLRA 154, 155 (2002)). See also Fraternal Order of Police, New Jersey Lodge 173, 58 FLRA 384, 385-86 (2003).

A.      The Award is Contrary to Law

      Under § 7116(d) of the Statute, "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under [§ 7116], but not under both procedures." 5 U.S.C. § 7116(d). In addition, the Authority has consistently held that § 7103(a)(9) of the Statute defines the term "grievance" broadly to include any claimed violation of any law, including the Statute. Thus, the Authority has also consistently held that an employee or union may allege in a grievance that an agency committed an unfair labor practice (ULP) under the Statute. See SSA, Office of Hearings and Appeals, Kansas City, Mo., 29 FLRA 1285, 1287 (1987). Specifically, alleged violations of § 7116 may be raised as ULP charges under the statutory procedure set forth in § 7118, or as grievances under a negotiated grievance procedure. See NTEU, Chapter 168, 55 FLRA 237, 241 (1999) (Chapter 168). In deciding a grievance under § 7121 that involves a ULP, "the arbitrator must apply the same standards and burdens that would be applied by an [Administrative Law Judge] in a ULP proceeding under § 7118." Chapter 168, 55 FLRA at 241. That is, in resolving a grievance alleging a ULP under § 7116 of the Statute, an arbitrator functions as would an Administrative Law Judge (ALJ).

      Under Authority precedent, when deciding whether a ULP has been committed, an ALJ is authorized to make negotiability determinations. See, e.g., United States Dep't of Health and Human Services, SSA, Baltimore, Md., 36 FLRA 655, 669 (1990) ("In cases where a party's defense to an unfair labor practice complaint rests on its contention that a particular proposal is nonnegotiable, resolution of the negotiability dispute is necessary to determine whether an unfair labor practice has been committed."). Consequently, when an arbitrator is presented with a grievance alleging an unfair labor practice, and resolution of that unfair labor practice necessitates a negotiability determination, the arbitrator is authorized to make that determination.

      Applying the foregoing here, "the Authority has consistently held that an agency's refusal to implement a Decision and Order of the [FSIP] requiring the parties to adopt language in their collective bargaining agreement violates [§] 7116(a)(1) and (6) of the Statute unless . . . the failure to comply with the [FSIP's] Order [i]s justified because the provisions are contrary to the Statute or other applicable law, rule or regulation." United States Dep't of the Treasury, IRS, and IRS, Austin Dist., and IRS, Houston Dist., 23 FLRA 774, 777-78 (1986). Stated differently, "[a]n agency acts at its peril in disapproving a [FSIP]-imposed provision." Headquarters, National Guard Bureau, Washington, D.C. and Nevada Air National Guard, Reno, Nev., et al., 54 FLRA 316, 323 (1998), petition for review denied sub nom. ACT, Silver Barons Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000). Where it is found that the provision the FSIP ordered the parties to adopt, and that was disapproved by the agency, is not contrary to law, the agency will be found to have violated § 7116(a)(1) and (6) of the Statute by failing to incorporate that provision in the parties' agreement. See, e.g., United States Dep't of Energy, Washington D.C., 51 FLRA 124, 129-30 (1995). Therefore, the Arbitrator, who was presented with a grievance alleging that an agency violated § 7116(a)(1), (5), (6) and (8) of the Statute, was authorized to resolve the Agency's defense that its disapproval was lawful. [ v61 p733 ]

      The Arbitrator's and the Agency's reliance on Interpretation and Guidance and AFGE v. FLRA is misplaced. Those decisions concerned the authority of the FSIP (and interest arbitrators) to resolve negotiability questions, not a grievance arbitrator's authority to resolve ULPs. Moreover, the Interpretation and Guidance, 15 FLRA at 569, explicitly recognizes that ULP procedures are appropriate for the resolution of negotiability issues. Although the Interpretation and Guidance references only the statutory ULP procedures, there is no indication that the Authority intended to limit parties to those procedures, particularly in view of the fact that the Statute itself recognizes that ULPs may be processed through a negotiated grievance procedure. Consequently, the Interpretation and Guidance and AFGE v. FLRA do not provide a basis for the Arbitrator to dismiss the grievance.

      In sum, in addressing the part of the grievance alleging that the Agency's failure to comply with the FSIP's Order constituted an unfair labor practice under § 7116(a)(1), (5), and (6) of the Statute, the Arbitrator had the authority to determine whether Proposal 8 is consistent with law.  [n5]  His determination that he was precluded from addressing the negotiability of Proposal 8 is, therefore, contrary to law [n6] , and the award is deficient under § 7122(a)(1) of the Statute. [n7] 

      Accordingly, we find that the award is deficient under § 7122(a)(1) of the Statute because it is contrary to law.

B.      The Award is Remanded to the Arbitrator

      Consistent with our conclusion that the award is deficient, we also conclude that the award must be remanded to the parties for resubmission to the Arbitrator. Unless precluded by law or the parties' agreement, the Arbitrator was compelled to address the merits of the negotiability issue as a necessary element in resolving the alleged violation of § 7116(a) of the Statute. Where an arbitrator erroneously determines that a grievance is not substantively arbitrable, the Authority has consistently remanded the award to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits. See, e.g., AFGE, Council of Prison Locals, 55 FLRA 192, 193 (1999); NFFE, Local 1636, 48 FLRA 511, 513-15 (1993); United States Dep't of the Air Force, Warner Robins Air Force Logistics Ctr., Robins AFB, Ga., 37 FLRA 155, 158-60 (1990).

      The Union has not provided a sufficient rationale for the Authority to depart from this consistent practice. The Union claims, in this regard, that the Authority is the proper body to assess whether Proposal 8 is consistent with law because the FSIP's Order was based on the Authority's decision in Local 1122, where the Authority determined that the proposal at issue was an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute.

      The Union's argument overlooks the fact that appropriate arrangement determinations under § 7106(b)(3) are based on the specific facts of each case and the Arbitrator is the fact-finder in this case. See, e.g., AFGE, Local 12, 61 FLRA 209, 218 n.8 (2005) (Member Pope concurring and dissenting in part) ("The Authority has reached different conclusions as to whether similarly worded proposals constitute appropriate arrangements under § 7106(b)(3) based on the union's showing of adverse effects as to those proposals."). Specifically, the Arbitrator must make findings as to the make-up of the phone system, and the effect of Proposal 8 on the operation of that system, in order to resolve whether the proposal is an appropriate arrangement. Consequently, the Arbitrator is the proper authority to determine, in the first instance, whether the facts of this case demonstrate that Proposal 8 is an appropriate arrangement.

      Accordingly, consistent with Authority precedent, we will remand the award to the parties, absent settlement, for resubmission to the Arbitrator so that he can decide, on the merits, whether the Agency's failure to comply with the FSIP's Order constitutes a violation of § 7116(a) of the Statute. [n8]  [ v61 p734 ]

V.      Decision

      The Arbitrator's award is set aside and remanded to the parties, absent settlement, for resubmission to the Arbitrator so that he can decide, on the merits, whether the Agency's failure to comply with the FSIP's Order constitutes a violation of § 7116(a) of the Statute.


APPENDIX

1. Article 37 of the parties' collective bargaining agreement provides, in relevant part, as follows:

Article 37
Bargaining

Section 1. A. The provisions of this Article cover traditional bargaining sometimes referred to as positional negotiation, and alternative bargaining sometimes referred to as interest-based negotiation. Management and NTEU recognize that resolving bargaining issues in an effective and efficient manner is beneficial to both parties.
. . . . 
Section 3.
. . . .
B. Bargaining in the areas listed in Section 1.C., above, shall be undertaken in a constructive and well-planned manner, in a non-adversarial setting, and if possible through interest-based bargaining that insists upon consensus decision-making and trust within the Customs-NTEU partnership. . . .
Section 4. In accordance with Section 3.C. above, if either party elects to pursue traditional bargaining, the following procedures will apply. . . .
. . . .
Section 6. A. The parties agree that proposed changes which apply on a nationwide basis shall be negotiated at the National Office.
. . . .
Section 10. The duties of the parties to negotiate in good faith under this Article shall include the obligation:
A.      to approach the negotiations with a sincere resolve to reach agreement;
. . . .
B.      to meet at reasonable times and convenient places as frequently as may be necessary . . . .

Joint Exhibit 3 to Opposition.



Footnote # 1 for 61 FLRA No. 147 - Authority's Decision

   Proposal 8 provides as follows:

In the event that employees are prohibited from carrying a privately owned pager, cell phone, or other wireless device to receive incoming calls or messages, [the Agency] will ensure that at least one manned telephone line is available at all ports covered by this policy which is specifically and solely dedicated to receiving incoming emergency telephone calls to bargaining unit employees. Port employees will be informed of the emergency telephone numbers and emergency notification procedures.

Footnote # 2 for 61 FLRA No. 147 - Authority's Decision

   Proposal 1 in Local 1122 provided as follows:

In addition to the RAS [Records Analysis Specialist] phone, two centralized phones in the RAC [Records Analysis Clerk] Clerk area at each end to be installed to handle [rollover] calls.

47 FLRA at 274

The Authority found that the "primary concern" of the proposal was to maintain the RACs' "current accessibility to receive emergency and other non work related telephone calls authorized by the [a]gency[.]" Local 1122, 47 FLRA at 278. The agency in Local 1122 alleged that the proposal affected its right to determine the technology, methods, and means of performing work under § 7106(b)(1) of the Statute.


Footnote # 3 for 61 FLRA No. 147 - Authority's Decision

   Dep't of Homeland Security, Border and Transportation Security Directorate, Bu. of Customs and Border Protection, Washington, D.C. and NTEU, Case No. 04 FSIP 100 (2004). In addition to its § 7106(b)(1) argument, relying on NTEU, 59 FLRA 978 (2004) (NTEU), the Agency argued that Proposal 8 affected its right to determine its internal security practices under § 7106(a)(1). The FSIP resolved the latter argument by finding that Proposal 8 was distinguishable from the proposal in NTEU.


Footnote # 4 for 61 FLRA No. 147 - Authority's Decision

   The relevant text of Article 37 is set forth in the Appendix to this memo.


Footnote # 5 for 61 FLRA No. 147 - Authority's Decision

   There is no dispute that the unfair labor practice issue was properly subm